STANDARD OFFICE LEASE
This
Standard Office Lease (the "Lease") is entered into by and between FROST
NATIONAL BANK, TRUSTEE FOR A DESIGNATED TRUST,
"Landlord", and ARGYLE
SECURITY ACQUISITION CORPORATION,
"Tenant".
Landlord
owns a project known as CONCORD
PLAZA
which
contains, among other facilities, an office building, a retail center and an
appurtenant parking facility, located on the Property (as hereinafter defined).
Tenant desires to lease the Premises (as hereinafter defined) on the terms
and
conditions herein contained
NOW,
THEREFORE, in consideration of the rent to be paid by Tenant hereunder, and
other mutual representations, warranties and covenants herein contained,
Landlord does hereby lease to Tenant, and Tenant does hereby lease from Landlord
the Premises situated upon the Property (as herein defined) described on Exhibit
"B" attached hereto, TO HAVE AND TO HOLD the same for the term herein provided,
subject to all of the following terms and provisions:
1. DEFINITIONS
AND RULES OF CONSTRUCTION.
1.1 Definitions:
"Additional
Rental" means all amounts Tenant is required to pay pursuant to Section 4.2
of
this Lease plus other amounts designated in this Lease as Additional
Rental.
"Area
of
the Premises" means the aggregate total number of rentable square feet of floor
area contained in the Premises, as set forth in the Basic Terms attached hereto
as Exhibit "A" and incorporated herein for all purposes.
"Area
of
the Building" means the aggregate total number of rentable square feet of office
(and retail, if applicable) floor area contained in the Building as set forth
in
the Basic Terms attached hereto as Exhibit "A" and incorporated herein for
all
purposes.
"Base
Rental" means all amounts Tenant is required to pay pursuant to Section 4.1,
as
such amounts may be hereafter adjusted pursuant to the terms of this
Lease.
"Building"
means the Concord Plaza office building and appurtenant office facilities and
Facilities.
"Business
Day" means any day except Saturdays, Sundays, and Holidays.
"Building
Standard Improvements" means those items set forth on Exhibit "C" attached
hereto.
"Capital
Improvements" means any expense that under generally accepted accounting
principles adds fixed assets subject to depreciation or amortization
treatment.
"Commencement
Date" means February 1, 2006.
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"Common
Area" consists of those portions of the Building, Retail Center, and/or Property
designated by Landlord from time to time for the common use of all tenants,
including without limitation the corridors, elevator foyers, restrooms, janitor
closets, electrical and telephone closets, vending areas the parking areas,
sidewalks, landscaping, curbs, loading areas, private streets and alleys, and
lighting facilities, all of which shall be subject to Landlord's sole management
and control and shall be operated and maintained in such manner as Landlord
in
its sole discretion shall determine. Landlord reserves the right to change
from
time to time the dimensions and location of the Common Area as well as the
location, dimensions, identity and type of any building and to construct
additional buildings or additional stories on existing buildings or other
improvements or to eliminate Buildings as it may determine. Tenant shall have
the non-exclusive right to use the Common Area, in common with Landlord, other
tenants of the Building and Retail Center and other persons permitted by
Landlord to use same, and subject to such rules and regulations set out in
Exhibit "D", attached hereto and made a part hereof, and otherwise such as
Landlord may from time to time in its sole discretion prescribe. Landlord may
temporarily close any part of the Common Area for such periods of time as
Landlord deems necessary to make repairs or alterations thereto, or to prevent
the public from obtaining prescriptive rights therein. The sidewalks, halls,
passages, exits, entrances, elevators and stairways shall not be obstructed
by
the Tenant or used for any purpose other than for ingress to and egress from
its
Premises. The halls, passages, exits, entrances, elevators, stairways and roof
are not for the use of the general public and the Landlord shall in all cases
retain the right to control and prevent access thereto by all persons whose
presence, in the judgment of the Landlord, shall be prejudicial to the safety,
character, reputation and interests of the Building, Retail Center and Property
and its tenants, provided that nothing herein contained shall be construed
to
prevent such access to persons with whom the Tenant normally deals in the
ordinary course of Tenant's business unless such persons are engaged in illegal
activities.
"Effective
Date" of this Lease is that date on which this Lease is executed by Landlord
and
Tenant.
"Excess
Operating Expenses" for any Lease Year means the amount by which (i) Operating
Expenses for any Lease Year exceeds (ii) the Operating Expenses for the Base
Year as listed on Exhibit "A" attached hereto multiplied by the Area of the
Building.
"Facilities"
means and includes all equipment, machinery, facilities and other personal
property located on the Property or used or utilized wholly or partially in
or
in connection with the operation or maintenance of the Property, or any part
thereof (including, but not limited to, all heating, ventilating, and air
conditioning equipment or machinery).
"Garage"
means the multi-story parking garage located on the Property.
"Holidays"
means New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving,
and Christmas, and if any such day falls on a Saturday or Sunday, the Friday
or
Monday designated by the Landlord as a Holiday in connection with such
day.
"Lease
Year" means a period not to exceed twelve (12) calendar months commencing on
the
Commencement Date (in the case of the first Lease Year) and January 1 in other
years, ending on December 31 of the same year or the last day of the Term (in
the case of the Last Lease Year).
"Leasehold
Improvements" means the work to be performed by Landlord or Tenant, as the
case
may be, pursuant to the Work Letter attached hereto as Schedule 1.
"Monthly
Parking Charge" means the monthly parking charge as described in the Basic
Terms
attached hereto as Exhibit “A” and incorporated herein for all
purposes.
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"Normal
Business Hours" means the time from 7:00 a.m. to 6:00 p.m., San Antonio time,
on
Business Days, and 8:00 a.m. to 1:00 p.m., San Antonio time, on Saturdays (other
than Holidays).
"Operating
Expenses" means all actual costs and expenses incurred in connection with the
management, ownership, operation or maintenance of the Building (including,
without limitation, the Premises and all other tenant space), excluding those
items described in paragraph (b) of this definition and adjusted as provided
in
Section 1.8, below:
(a) Subject
to paragraph (b), Operating Expenses include, without limitation: (i) wages,
salaries, bonuses and labor costs of all persons directly engaged in the
management, operation or maintenance of the Property (whether employees or
contract laborers), including benefits, taxes, unemployment and disability
insurance, worker's compensation insurance and social security taxes; (ii)
all
supplies, tools, equipment and materials used in the management, operation
or
maintenance of the Property or Facilities; (iii) costs of all utilities for
the
Property or any part thereof, including all costs of operation of heating,
ventilating and air conditioning services, water and lighting; (iv) costs of
all
maintenance and service agreements for the Property or Facilities, including
without limitation security service, window cleaning, elevator maintenance
and
janitorial service; (v) costs of repairs and general maintenance relating to
the
Property or Facilities; (vi) amortization of Capital Improvements as and to
the
extent provided in Section 1.8; (vii) improvements to the Property which are
required by governmental authority, (viii) the cost of all insurance relating
to
the Property, the Facilities and Landlord's personal property used in connection
with the Property; and (ix) all taxes, assessments and governmental charges
with
respect to the Property and the Facilities, other than federal income taxes,
death taxes, franchise taxes and taxes imposed with respect to any change of
ownership of the Property, provided that taxes based directly on gross rentals
shall constitute Operating Expenses, (x) all legal or accounting costs relating
to the Property, including without limitation, a reasonable allocation of
off-site costs and costs of annual audits of Operating Expenses by certified
public accountants, if performed, (xi) all management fees and costs of a
property management office on the Property or an allocation of the costs of
an
off-site central office maintained for management of the Property.
(b) Operating
Expenses do not include: (i) principal and interest payments on any mortgage;
(ii) amortization or depreciation of the Building, Facilities or any other
portion of the Property (except as provided in Section 1.8 below); (iii) costs
of repairing damage for which Landlord is entitled to direct reimbursement
from
Tenant or other tenants; (iv) casualty losses of a type covered by standard
fire
and extended coverage insurance policies, to the extent such casualty losses
exceed deductible amounts for the affected portions of the Property; (v) any
expense to the extent actually paid or reimbursed from insurance proceeds;
(vi)
remodeling costs for new or existing tenants; (vii) electric, air conditioning
or heating costs or other expenses which are separately billed to specific
tenants; and (viii) advertising costs and leasing commissions.
"Premises"
means that portion of the Building described more fully in the Basic Terms
attached hereto as Exhibit "A" and incorporated herein for all purposes and
shown as the cross-hatched area on the floor plan(s) attached as Exhibit "B-1",
and any expansion area subsequently leased by Tenant during the Term, less
any
area surrendered during the Term which is accepted by Landlord.
"Property"
means the real property generally described as Concord Plaza 1 in the City
of
San Antonio, Bexar County, Texas, being more fully described in Exhibit "B"
which is attached hereto and made a part hereof (a portion of which being the
property on which the Building is constructed), together with any and all
improvements located thereon, including but not limited to the Building, the
Retail Center and the Garage.
"Retail
Center" means the buildings and improvements situated upon the Property known
as
Concord Plaza 1 Retail Center, and appurtenant Facilities, located at 0000
Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxxx, Xxxxx 00000.
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"Rules
and Regulations" means the Rules and Regulations attached hereto as Exhibit
"D",
as amended by Landlord from time to time pursuant to Section 7.5,
below.
"Substantial
Completion Date" is defined in the attached Schedule 1.
"Tenant's
Proportionate Share" means all proportionate parts of the particular item in
question calculated by multiplying the sum in question times a fraction the
numerator of which is the Area of the Premises and the denominator of which
is
the Area of the Building.
"Term"
means the period determined pursuant to Article 2, including any renewal or
extension thereof.
1.2 Section
and Paragraph
Headings.
The
section and paragraph headings contained in this Lease are for convenience
only
and shall in no way enlarge or limit the scope or meaning of the provisions
of
this Lease.
1.3 Severability
Clause.
If any
clause or provision of this Lease is illegal, invalid or unenforceable under
present or future laws effective during the Term, then it is the intention
of
Landlord and Tenant that the remainder of this Lease shall not be affected
thereby, and it is also the intention of Landlord and Tenant that in lieu of
each clause or provision that is illegal, invalid, or unenforceable, there
be
added as a part of this Lease a clause or provision as similar in terms to
such
illegal, invalid, or unenforceable clause or provision as may be possible and
be
legal, valid and enforceable.
1.4 Terms
Binding.
Subject
to the provisions respecting assignment and subletting set forth in Article
10,
all of the covenants, agreements, terms, and conditions to be observed and
performed by Landlord or Tenant shall be applicable to and binding upon their
respective successors and assigns. In no event shall this clause be construed
to
authorize the assignability or subleasing of the Premises by Tenant that is
not
otherwise in compliance with the terms, covenants and conditions set out in
Article 10.
1.5 No
Implied Surrender or Waiver.
No act
or thing done by Landlord or any of its agents, representatives or employees
during the Term shall be deemed an acceptance of a surrender of the Premises
and
no agreement to accept a surrender of the Premises shall be valid unless the
same be made in writing and subscribed by Landlord. The mention in this Lease
of
any particular remedy shall not preclude either party from any other remedy
which such party might have, either in law or in equity, nor shall the waiver
of
or redress for any default under this Lease be deemed to constitute a waiver
of
any subsequent default. The receipt by Landlord or payment by Tenant of rent
or
any other sum due and payable under this Lease with knowledge of default under
this Lease shall not be deemed a waiver of such default. The receipt by Landlord
of rent or any other sum due and payable under this Lease from any assignee,
subtenant or occupant of the Premises shall not be deemed a waiver of the
covenant in this Lease contained against assignment and subletting, or be deemed
to constitute an acceptance of the assignee, subtenant or occupant as tenant
or
a release of Tenant from the further observance or performance by Tenant of
the
covenants of this Lease. No provision of this Lease shall be deemed to have
been
waived by either party unless such waiver be in a writing signed by such
party.
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1.6 Entire
Agreement; Amendments.
Tenant
acknowledges and agrees that it has not relied upon any statement,
representation, agreement, or warranty except such as may be expressly set
forth
herein, and it is agreed between Landlord and Tenant that no amendment or
modification of this Lease shall be valid or binding unless expressed in a
writing executed by both Landlord and Tenant.
1.7 Calculation
of Operating Expenses.
In
calculating Operating Expenses, for any period during which the Building is
less
than 95% occupied, Landlord shall adjust the actual expenses allocated by
Landlord (as described below) to such Building as follows:
(a) |
The
following expense items shall not be subject to
adjustment:
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(1) |
Ad
valorem taxes,
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(2) |
Amortized
Capital Improvement Expenses (as described in Section 1.8,
below),
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(3) |
Costs
of Building access control
services,
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(4) |
Costs
of general maintenance of the Building, Facilities and non-tenant
landscaping and decorations, and
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(5) |
Casualty
and liability insurance covering the Building and the
Facilities.
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(b) |
The
following expense items will be deemed to fluctuate in direct proportion
with occupancy, and will be increased by multiplying each such amount
allocated to the Building as set out below by a fraction, the numerator
of
which is 95 and the denominator of which is the actual occupancy
percentage of the Building during such period:
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(1) |
Water,
sewer and similar services,
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(2) |
Waste
removal, and
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(3) |
Management
fees.
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(c) |
Expenses
allocated to the Building for janitorial services, electricity and
heating
and cooling shall be adjusted by first deducting expenses relating
to
common area and expenses directly reimbursed by other tenants of
the
Building for special services or extra usage and multiplying the
remaining
amount by a fraction, the numerator of which is 95 and the denominator
of
which is the actual occupancy percentage of the Building during such
period.
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(d) |
All
other expense items allocated to the Building shall be adjusted by
a
factor which Landlord determines in its reasonable discretion to
be
appropriate based upon the relationship of such expense item to occupancy
levels.
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(e) |
Notwithstanding
anything contained in this Lease to the contrary, Landlord shall
have the
right to allocate Operating Expenses among the Building and the other
buildings and improvements situated upon the Property on a basis
which is
determined by Landlord in its sole discretion; provided, however,
that
such allocation shall be on the same basis as all other leases in
the
Building.
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1.8 Amortization
of Capital Improvements.
If
Landlord makes a Capital Improvement to the Property or the Building which
it
determines to be in the best interest of the operations of the Property or
the
Building (that is, will effect cost savings to the operations of the Building
or
improve the safety for Tenants in the Building or otherwise will be of direct
or
indirect benefit to the tenants of the Building, and not only to the benefit
of
Landlord) or which is required by governmental authority (except a governmental
authority in its capacity as a tenant), Landlord shall charge as current
Operating Expenses an annual amortization of the cost of the Capital Improvement
(and 13% annual interest factor on the unamortized balance). For the purpose
of
determining the Operating Expense attributable to such Capital Improvement
the
cost of the Capital Improvement item, as increased by the interest factor
described above, shall be amortized over the useful life of the item (as
determined in the Internal Revenue Code of 1986, as amended from time to time).
Such amortization shall cease upon Landlord having fully recouped the Capital
Improvement costs as increased by the annual interest factor.
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1.9 Building
Area Computations.
If the
Premises constitutes all of the space available for use by the Tenant on a
single floor, the area of the Premises will be computed to include: (a) the
entire area bounded by the outside surface of the exterior glass walls of the
Building on such floor less the area contained within the exterior walls of
the
Building stairs, fire towers, vertical ducts elevator shafts, flues, vents,
stacks, and pipe shafts; (b) all the areas used for elevator lobbies, corridors,
special stairways, restrooms, mechanical rooms, janitor closets, electrical
rooms, telephone closets, and all vertical penetrations included for the special
use of Tenant; and (c) columns and other structural portions and/or projections
of the Building situated on such floor. If the Premises constitutes less than
the entire space available for use by the Tenant on the floor on which the
Premises is situated, the Area of the Premises is (i) the entire area included
within the Premises, being the area bounded by the outside surface of any
exterior glass walls (or the outside of the permanent exterior wall where there
is no glass) of the Building bounding the Premises, the exterior of all walls
separating the Premises from any public corridors or other public areas on
such
floor, and the centerline of all walls separating the Premises from other areas
leased or to be leased to other tenants on such floor, (ii) a pro rata portion
of the area covered by the elevator lobbies, corridors, special stairways,
restrooms, mechanical rooms, janitor closets, electrical rooms and telephone
closets situated on such floor, (iii) all vertical penetrations that are
included for the special use of Tenant, (iv) columns and other structural
portions and/or projections of the Building, and (v) that portion of atrium
(if
any) which intrude into the Premises.
1.10 Substitute
Premises.
Landlord shall have the right at any time during the term hereof, upon giving
Tenant not less than sixty (60) days prior written notice, to provide and
furnish Tenant with space elsewhere in the Building of approximately the same
size as the Premises and remove and place Tenant in such space with Landlord
to
pay all reasonable costs and expenses incurred as a result of such removal
of
Tenant. Should Tenant refuse to permit Landlord to move Tenant to such new
space
at the end of said sixty (60) day period, Landlord shall have the right to
cancel and terminate this Lease effective ninety (90) days from the date of
original notification by Landlord. If Landlord moves Tenant to such new space,
this Lease and each and all of its terms, covenants and conditions shall remain
in full force and effect and be deemed applicable to such new space, and such
new space shall thereafter be deemed to be the Premises as though Landlord
and
Tenant had entered into an express written amendment of this Lease with respect
thereto.
2. TERM
2.1 Term.
The
term of this Lease shall begin on the Effective Date of the Lease and shall
continue for the time period specified in the Basic Terms attached hereto as
Exhibit “A” and incorporated herein for all purposes.
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2.2 Adjustments.
In the
event that the Premises are not ready for Tenant's occupancy on or before the
Commencement Date as specified above, the term of this Lease, and the Tenant's
obligation to pay rent, shall commence on the earlier of the following dates:
(a) The date which the Landlord notifies Tenant in writing that the Premises
are
ready for occupancy on the hereinafter described Notice of Completion form,
or
(b) the date on which Tenant shall occupy the Premises for business. In the
event the aforesaid Commencement Date shall occur on a date other than the
first
day of the calendar month, then the term of this Lease shall be for the number
of full lease months plus the number of days remaining in the month in which
the
Term commences. When the Premises are ready for the Tenant's occupancy, Landlord
shall deliver a written statement ("Notice of Completion") to Tenant specifying
therein the Commencement Date and termination date of the lease
term.
3. LEASEHOLD
IMPROVEMENTS
3.1 Leasehold
Improvements.
The
Leasehold Improvements shall be furnished and installed within the Premises
in
accordance with Schedule 1 attached hereto and made a part hereof.
4. RENT
4.1 Amount
and Payment - Base Rental.
Beginning with the Commencement Date of the Lease and continuing throughout
the
Term of this Lease, Tenant shall pay to Landlord, in advance, at the address
specified for Landlord in the Basic Terms attached hereto as Exhibit “A” and
incorporated herein for all purposes, or at such place or places as Landlord
may
from time to time direct, without offset, prior notice or demand, as rent,
(i)
the sum of specified as Base Rental in the Basic Terms attached hereto as
Exhibit “A” and incorporated herein for all purposes ("Base Rental") and (ii)
any Monthly Parking Charge per month on the first day of each month following
such Commencement Date, in lawful money of the United States of America. In
the
event the Commencement Date of the term is not on the first day of the month,
the prorated amount for the month in which this Commencement Date falls shall
be
paid on the first day of the term. Base Rental for any partial month shall
be
prorated using the percentage which the number of days in such partial month
bears to the total number of days in said month. Landlord has received one
month’s Base Rental in the amount of the monthly installment of Base Rental in
effect for the first calendar month of the Term, which shall be applied to
the
first month of the lease term for which Base Rental is due (and if any portion
remains, as a partial payment for the second month of the lease term for which
Base Rental is due).
4.2 Additional
Rental.
(a) |
Additional
Rental shall include Tenant's Proportionate Share of Excess Operating
Expenses for a particular Lease Year or portion thereof which Tenant
shall
pay Landlord as follows:
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(1) |
For
the first Lease Year during the term of this Lease, Tenant shall
pay to
Landlord each month, on the first day of each month following the
Commencement Date of Lease, in lawful money of the United States
of
America, an amount equal to Landlord's estimate of Tenant's Proportionate
Share of Excess Operating Expenses for the Lease Year divided by
the
number of months remaining in such Lease Year; and for each Lease
Year
thereafter Tenant shall pay to Landlord each month, on the first
day of
each month following the Commencement Date of Lease, in lawful money
of
the United States of America, an amount equal to one-twelfth (1/12)
of the
then estimated Tenant's Proportionate Share of Excess Operating Expenses.
If the first Lease Year is a fractional calendar year, then Landlord
shall
adjust the Proportionate Share of Operating Expenses to reflect the
number
of months (including fractional months) in such fractional Lease
Year, as
appropriate to reflect any proration of Operating
Expenses.
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(2) |
Operating
Expenses for each Lease Year shall be estimated by Landlord, from
which
Landlord shall estimate Tenant's Proportionate Share of Excess Operating
Expenses, and written notice of such estimate of Tenant's Proportionate
Share shall be given to Tenant as soon as reasonably possible on
or before
the beginning of each Lease Year.
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(3) |
If
Operating Expenses increase during a Lease Year, Landlord may revise
its
estimate of Tenant's Proportionate Share of Excess Operating Expenses
during such year by giving Tenant written notice to that effect,
and
thereafter Tenant shall pay to Landlord, in each of the remaining
months
of such Lease Year, an Additional Rental equal to the difference
between
the revised estimate and the original estimate divided by the number
of
months remaining in such year.
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(4) |
Within
one hundred twenty (120) days after the end of each Lease Year, Landlord
shall prepare and deliver to Tenant a statement showing the actual
amount
of Tenant's Proportionate Share of Excess Operating Expenses. If
the
actual amount of Tenant's Proportionate Share of Excess Operating
Expenses
incurred in respect of any Lease Year exceeds the estimate of Tenant's
Estimated Proportionate Share of Excess Operating Expenses for such
Lease
Year, then Tenant shall pay to Landlord the amount of such difference
within ten (10) days following receipt of notice from Landlord setting
forth the actual amount of Tenant's Proportionate Share of Excess
Operating Expenses in respect of such Lease Year. If the actual amount
of
Tenant's Proportionate Share of Excess Operating Expenses in respect
of
any Lease Year is less than the estimate of Tenant's Proportionate
Share
of Excess Operating Expenses for such Lease Year, then, provided
that
Tenant is not then in default in the performance of its obligations
under
the Lease, Landlord shall refund to Tenant such difference promptly
following its determination. If the last Lease Year is a fractional
calendar year, then Landlord shall adjust the Proportionate Share
of
Excess Operating Expenses to reflect the number of months (including
fractional months) in such fractional Lease Year, as appropriate
to
reflect any proration of Operating
Expenses.
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(5) |
Any
delay by Landlord in delivering any estimate or statement pursuant
to this
Section shall not relieve Tenant of its obligations pursuant to this
Section except that Tenant shall not be obligated to make any payments
based on such estimate or statement until ten (10) days after receipt
of
such estimate or statement.
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(b) |
Additional
Rental shall also include, and Tenant shall pay as Additional Rental,
a
reasonable charge determined by Landlord for any services required
to be
provided by Landlord by reason of any use by Tenant of any services
in
excess of services customarily provided by landlord to all other
tenants
in the Building or by reason of any recurrent use of the Premises
by
Tenant at any time other than Normal Business Hours. Tenant shall
pay for
any additional or unusual janitorial services required by reason
of
Tenant's use of the Premises or by reason of improvements in the
Premises
other than Building Standard Improvements and any repairs required
to be
made to the Building due to the use of the Building by Tenant or
its
agents or invitees within ten (10) days of being billed by Landlord.
If
improvements in the Premises other than Building Standard Improvements
or
Tenant's use or the conduct of business on the Premises or in the
Building, whether or not with Landlord's consent and whether or not
otherwise permitted by this Lease, results in any increase in ad
valorem
taxes (not separately assessed) or in premiums for the fire and liability
insurance or any other insurance coverage carried by Landlord with
respect
to the Building or its contents, Tenant shall pay as Additional Rental
any
such increase in taxes or premiums (as reasonably allocated by Landlord)
within ten (10) days after being billed by
Landlord.
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(c) |
Landlord
and Tenant are knowledgeable and experienced in commercial transactions
and agree that the terms in this Lease for determining Operating
Expenses
payable by Tenant (including without limitation payments under this
Section 4.2 of the Lease) are commercially reasonable and valid even
though the methods contained herein may not state a precise mathematical
formula for determining all of such charges. ACCORDINGLY TO THE EXTENT
ALLOWED BY LAW TENANT VOLUNTARILY AND KNOWINGLY WAIVES ALL RIGHTS
AND
BENEFITS OF TENANT UNDER SECTION 93.012 OF THE TEXAS PROPERTY CODE,
AS
AMENDED FROM TIME TO TIME.
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4.3 Independent
Covenant.
The
obligation of Tenant to pay rent is an independent covenant, and no act or
circumstances whatsoever, whether such act or circumstances constitutes a breach
of a covenant by Landlord or not, shall release Tenant of the obligation to
pay
rent.
4.4 Late
Payment.
In the
event Tenant fails to pay any installment of Rental or other sum due hereunder
within ten (10) days after its is due, Tenant shall pay to Landlord (to
reimburse Landlord for the expenses and costs incurred by Landlord on account
of
such failure) an amount equal to twelve percent (12%) of such installment or
other sum, which late charge shall be due and payable on the eleventh day
following Tenant's failure to make any such payment above described when due.
Provision for such late charge shall be in addition to all other rights and
remedies available to Landlord hereunder, at law or in equity.
4.5 Interest.
All
sums, including Base Rental and Additional Rental, not paid by Tenant to
Landlord when due shall bear interest at the lesser of twelve percent (12%)
per
annum, or the highest lawful rate under applicable law which may be charged
for
such sums which are due, from the date due until paid.
4.6 Rental.
Wherever the term "Rental" is used under the terms of this Lease it shall be
deemed to refer to the Base Rental due hereunder as well as the Additional
Rental due hereunder unless the context specifically states
otherwise.
5. SECURITY
DEPOSIT. Tenant
has deposited with Landlord the sum specified in the Basic Terms attached hereto
as Exhibit “A” and incorporated herein for all purposes as security for the full
performance of all the provisions of this Lease. If at any time during the
Term
hereof, or the term as it may be extended, Tenant shall be in default in payment
of Rental or any other sum due Landlord as additional rental, Landlord may
apply
all or a part of the security deposit for such payment. Landlord may also apply
all or a part of the deposit to clean or repair damages to the Premises. If
any
portion of said deposit is so used or applied, Tenant shall, within five (5)
days after written demand therefore, deposit cash with Landlord in an amount
sufficient to restore the security deposit to its original amount and Tenant's
failure to do so shall be a breach of this Lease. Landlord shall not, unless
otherwise required by law, be required to keep this security deposit separate
from its general funds, nor pay interest to Tenant. If Tenant is not in default
at the termination of the Lease, Landlord shall return the remaining deposit
to
Tenant within a reasonable period of time thereafter.
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6. USE.
The
Premises may be used and occupied only for general office purposes and for
no
other purpose or purposes, without Landlord's prior written consent. Tenant
shall promptly comply with all laws, ordinances, orders and regulations
affecting the Premises, and their cleanliness, safety, occupation and use,
including but not limited to all steps necessary to cause the Premises to comply
with the Americans With Disabilities Act. Tenant will not perform any act or
carry on any practices that may injure the Building or Property or be a nuisance
or menace to tenants of adjoining leased premises. Tenant may not store any
trash, equipment, vehicles or merchandise on any outside parking, drive or
loading areas, except in areas specifically designated and approved by Landlord
for such purposes.
6.1 Insurance.
No use
shall be made or permitted to be made of the Premises by Tenant or acts done
by
Tenant which increase the cost of Landlord's insurance as provided for in
Section 12.2 of this Lease or which increase the cost of insurance as carried
by
any other tenant of the Building and Property. In the event that any such use
or
act is performed or permitted by Tenant, Tenant will pay to Landlord promptly,
upon demand, the amount of any such increase in Landlord's insurance cost,
together with the amounts of any such increases in other tenants' insurance
costs as Landlord shall have reasonably paid as reimbursement to such other
tenants. Tenant will not, in any event, permit or perform any use of or act
within the Premises which will cause the cancellation of any insurance policy
covering the Building, Facilities and/or Property or the contents thereof,
and
agrees to indemnify Landlord against all claims or actions for loss which result
from any such act or cancellation.
6.2 Parking.
Tenant
shall have the nonexclusive use, in common with Landlord, other tenants, their
employees, guests and invitees, of all parking areas designated by Landlord
for
such use, subject to the reasonable rules and regulations for the use thereof
as
prescribed from time to time by Landlord for the number of spaces described
in
the Basic Terms attached hereto as Exhibit “A” and incorporated herein for all
purposes. Landlord reserves the right to designate parking areas for the use
of
Tenant and their employees and Tenant and their employees shall not park in
parking areas not designated for their use or for open parking and to control
access by token or card, at Landlord's discretion. Tenant’s right to use the
contract portion(s) of the Garage (if any) shall be determined in accordance
with the terms of Schedule 2 and shall be subject to the rights of other third
parties and the Rules and Regulations. Tenant’s right to use the Garage (if any)
shall be subject to the terms and conditions of Schedule 2.
6.3 Combustible
Materials.
Tenant
shall not use the Premises for storage of highly flammable/combustible materials
or of any other material which is prohibited by Landlord's insurance
carrier.
6.4 Careful
Use.
Tenant
agrees to use and maintain the Premises in a clean, careful, safe and proper
manner and to comply with all applicable laws, ordinances, orders, rules and
regulations of all federal, state and municipal governmental bodies, including
but not limited to all steps necessary to cause the Premise to comply with
the
Americans With Disabilities Act. Tenant agrees to pay, on demand, for any damage
to the Premises or any other part of the Building caused by the negligence,
or
willful act or any misuse or abuse (whether or not any such misuse or abuse
results from negligence or willful act) by Tenant or any of its agents,
employees, invitees or licensees. Any sums due by Tenant to Landlord under
this
Section 6.4 shall be deemed Additional Rental and shall be payable upon
demand.
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6.5 Special
Use Equipment.
Tenant
shall not place any furniture, fixtures or equipment upon the Property which
are
sensitive in nature as to movement, vibrations, noise or other similar actions
or activities or which cannot be removed from the Premises on immediate or
short
notice to accommodate the Landlord's ability to relocate the Tenant within
the
Premises, or otherwise.
6.6 Acceptance
of the Premises and Building by Tenant.
The
taking of possession of the Premises by Tenant shall be conclusive evidence
as
against Tenant that it accepts the Premises as suitable for the purpose for
which the same are leased.
7. OPERATION,
MAINTENANCE AND REPAIRS
7.1 Landlord's
Duties for Operations, Maintenance and Repair.
Landlord will provide the following services to the Premises and the Building
throughout the term of this Lease:
(a) |
Maintenance
of the roof, exterior walls, foundations and other structural elements
of
the Building;
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(b) |
Grounds
and landscaping maintenance;
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(c) |
Parking
lot maintenance and sweeping;
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(d) |
Janitorial
service five nights a week;
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(e) |
Water,
sewer and exterior utilities (common meter
utilities);
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(f) |
Central
heat and air conditioning, at such times as Landlord normally furnishes
these services to all tenants of the Building and at such temperatures
and
in such amounts as are reasonably considered by Landlord to be standard;
provided, however, heating and air conditioning service at times
other
than "Normal Business Hours" for the Building (which are 7:00 a.m.
to 6:00
p.m. on Mondays through Fridays, and 8:00 a.m. to 1:00 p.m. on Saturdays)
shall be furnished to Tenant at Tenant's sole cost and
expense.
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Without
Landlord's prior written consent, Tenant shall not install any equipment which
shall require for its use other than standard Building Electric Current and
electrical equipment supplied by Landlord. The obligation of Landlord to provide
or cause to be provided electrical services shall be subject to the rules and
regulations of the supplier of such electricity and of any municipal or other
governmental authority regulating the business providing electrical utility
services to the Building. The Landlord shall not be liable or responsible to
Tenant for any loss or damage or expense which Tenant may sustain or incur
if
either the quantity or character of the electric service is changed or is no
longer available or no longer suitable for Tenant's requirements.
The
electrical current made available to Tenant will provide standard lighting
and
be otherwise sufficient for the normal office purposes of the Premises. These
purposes include the operation of personal computers, typewriters, facsimile
machines, and any other machines which are similarly low in terms of consumption
of electrical energy. Normal purposes do not include the operation of mainframe
computers, space heaters, special lighting in excess of Building Standards
as
reasonably determined by Landlord, special air conditioning needs (heating
or
cooling) in excess of Building Standards as reasonably determined by Landlord,
or any other electrical machine, equipment, appliance or fixture which,
individually, has a rated capacity exceeding 0.5 kilowatts or which requires
a
normal voltage of more than 120 volts single phase. Tenant warrants, covenants
and agrees that at no time will its use of electric current exceed the capacity
of existing lines, or feeders to the Building, nor will Tenant's use of
electrical current exceed the capacity of the risers or wiring installation
of
the Building. Any line or lines, riser or risers, or wiring necessary to meet
Tenant's excess electrical requirements will be installed by Landlord upon
the
request of Tenant at the sole and complete expense of Tenant, but only if,
in
Landlord's sole discretion and judgment, the same are necessary and will not
cause damage or injury to the Premises or Building, will not create or lead
to a
dangerous or hazardous condition within the Building, will not entail excessive
or unreasonable expense, repair or alteration, and will not interfere with,
disturb or endanger any other occupants or tenants or other persons. All charges
associated with any installation, maintenance, repair and other additional
costs
of services with regard to Tenant's excess or special electrical requirements
will be borne solely by Tenant. Landlord shall send to Tenant periodic
statements setting forth the charges and Tenant shall pay such amounts to
Landlord within ten (10) days after receipt thereof from Landlord as Additional
Rental hereunder. At no time will these charges exceed the actual costs to
Landlord.
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Failure
to any extent to make available, or any slowdown, stoppage or interruption
of,
the services described in this Article 7, resulting from any cause (including,
but not limited to, Landlord's compliance with (i) any voluntary or similar
governmental or business guideline now or hereafter published or (ii) any
requirements now or hereafter established by any governmental agency, board
or
bureau having jurisdiction over the operation and maintenance of the Building
and Property) shall not render Landlord liable in any respect for damages to
either person, property or business, nor be construed as an eviction of Tenant
nor work an abatement of Rental, nor relieve Tenant from fulfillment of any
covenant or agreement hereof. Should any equipment or machinery furnished by
Landlord for general building operation break down or for any cause cease to
function properly, Landlord shall use reasonable diligence to repair same
promptly, but Tenant shall have no claim for abatement of Rental or damages
on
account of any interruptions in service occasioned thereby or resulting
therefromLandlord shall not be responsible for any repairs or modifications
to
any tenant improvement in the Premises whether installed for or by Tenant or
a
previous tenant, nor any items which Tenant accepts in an "as-is" condition
except as specifically treated elsewhere herein.
7.2 Tenant's
Duties.
Tenant,
at its sole cost and expense, shall maintain in a clean condition and in a
good
state of repair all interior portions of the Premises, including, but in no
way
limited to, all plumbing, wiring, glazing, windows, doors, floors, ceilings,
interior walls and the interior surface of exterior walls, all fixtures
(including replacement of light bulbs for tenants light fixtures which are
other
than Building Standard light fixtures provided by Landlord as a part of a the
finish out constructed by or for the Tenant), equipment and signs, except for
repairs caused by the wrongful acts of Landlord or its agents. Tenant shall
have
the responsibility to repair or replace immediately any portion of the Premises
which is damaged during the term of this Lease, except for damage which is
caused by the wrongful acts of Landlord or its agents and except for damage
caused by fire, earthquake, act of God or the elements.
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7.3 Alterations
and Additions by Tenant.
Tenant
shall make no alterations in, modifications of or additions to the Premises
without the prior written consent of Landlord, and all alterations, additions
and improvements made to or fixtures or other improvements placed in or upon
the
Premises, by either Landlord or Tenant shall be deemed a part of the Building
at
the time same are placed in or upon the Premises and same shall remain upon
and
be surrendered with the Premises as a part thereof at the expiration or
termination of this Lease and shall at that time become the property of the
Landlord. Tenant shall not place any safes, safe cabinets or vaults within
the
Premises without Landlord's prior written consent; provided, however, Landlord
will not unreasonably withhold or delay its consent to any such non-structural
improvements or alterations, including specifically the alterations to be made
prior to Tenant’s occupancy of the Premises. Tenant shall give Landlord the keys
and explanation of the combination of all locks for safes, safe cabinets, and
vaults on the Premises upon expiration or termination of this Lease. Tenant
may
remove its trade fixtures, office supplies and moveable office furniture and
equipment not attached to the Premises provided: (i) such removal is made prior
to the expiration or termination of this Lease; (ii) Tenant is not then in
default in the performance of its obligations under this Lease; and (iii) Tenant
promptly repairs all damage caused by such removal. If Tenant does not remove
such trade fixtures, office supplies and moveable office furniture and equipment
within ten (10) days following the expiration or termination of this Lease,
such
property shall thereupon be conclusively presumed to have been abandoned by
Tenant and become the property of Landlord free and clear of any interest of
Tenant, and Landlord may cause the same to be removed and all expenses incurred
in connection therewith shall be payable by Tenant. Any installations or
improvements now or hereafter existing which are not Building Standard
Improvements shall be maintained by Tenant at Tenant's cost and expenses;
however, should Tenant desire any such installations or improvements to be
maintained by Landlord, Landlord may agree to perform such maintenance at
Tenant's cost and expense. In the event the Tenant is authorized to make any
alterations, repairs or additions to the Premises under the terms of this Lease,
all plans and specifications for such alterations, repairs or additions shall
be
executed by Landlord and Tenant prior and attached hereto as Schedule 1.
Landlords execution and/or approval of the plans and specifications for such
alterations, repairs or additions shall in no event cause the Landlord to become
responsible or liable for any aspect of the plans and specifications or the
construction relating thereto, all of which will be carried out by Tenant,
at
its sole cost and expense, unless otherwise expressly agreed between the
Landlord and Tenant and set out in Schedule 1, attached hereto. All construction
work done by Tenant shall be performed in good workmanlike manner in compliance
with all governmental requirements and applicable codes. Tenant agrees to
indemnify and hold Landlord harmless against loss, liability or damage resulting
from such work other than as a result of Landlord's intentional misconduct
or
gross negligence (which indemnity shall expressly apply to the negligence,
contributory or comparative negligence of Landlord). Tenant further agrees
that
it will at all times save and keep the Landlord and the Premises free and
harmless of and from and indemnify Landlord against any liability on account
of
or in respect to any mechanic's lien or liens in the nature thereof, for work
and labor done or materials furnished at the instance and request of the Tenant,
in or about the Premises. In connection with the additions, alterations or
modifications Tenant agrees to buy, at Tenant's sole cost and expense, Builders
Risk Insurance on an All Risk Builders Risk Form, for full value of improvements
and/or additions in construction to be made to the Premises. In addition, the
contractor for such additions, alterations or modifications shall be required
to
pay comprehensive general liability insurance covering the construction work
to
be performed with the limit of $1,000,000.00 or more combined single limit
coverage, and such policy shall name Landlord as an additional insured. Prior
to
the commencement of any construction, Tenant shall provide Landlord a
certificate evidencing such coverage, and Landlord and Tenant are covered by
such policy as their interest may appear (as named insured) on such policy
is
non-cancelable or subject to material change without thirty (30) days advance
written notice to Landlord. In the event the policy shall lapse or shall not
be
renewed, Tenant shall cause the construction work to cease
immediately.
7.4 Repairs
by Tenant.
Tenant
shall, upon the discovery of any defect in or injury to the Premises, or any
need of repairs thereto, promptly report the same to Landlord in writing within
two Business Days of each such occurrence or discovery specifying such defect,
injury or need of repair. Landlord may (but shall never be obligated and shall
have no liability for its failure to do so), upon Tenant's reasonable request
thereof, at Tenant's cost and expense, repair or maintain any leasehold
improvements in the Premises or repair damage in the Premises or to the Building
or any other portion of the Property proximity caused by the negligence or
wrongdoing of Tenant, or of its agents, employees, representatives, invitees,
licensees or visitors pursuant to Tenant's agreement and undertaking to pay
Landlord's costs plus ten percent (10%) to cover Landlord's overhead. If Tenant
shall fail to reimburse Landlord for such repairs or replacements within fifteen
(15) days following written notice from Landlord that the repair or replacement
of the damage or injury has been completed, the costs of such repair or
replacement (and included in such cost shall be Landlord's overhead) shall
constitute a demand obligation owing by Tenant to Landlord payable within ten
(10) days following invoice therefor by Landlord. Failure to timely pay said
sums shall constitute default by Tenant under this Lease. Tenant covenants
and
agrees that it will not injure the Building, the Premises or any portion of
the
Property but it will take the same care thereof which a reasonably prudent
tenant would take of its leased premises, and that upon expiration or
termination of this Lease it will surrender and deliver up the Premises to
Landlord in the same condition in which the Premises existed on the Commencement
Date, subject to normal wear and tear
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7.5 Rules
and Regulations.
Tenant
covenants and agrees that it will comply with the Rules and Regulations, as
well
as all changes therein and additions thereto that may, at any time or from
time
to time, be adopted by Landlord for the operation and protection of the Building
and the Property and the protection and welfare of its tenants and invitees.
Landlord expressly reserves and retains the right, at any time and from time
to
time, to make such reasonable changes in and additions to the Rules and
Regulations, provided however, that same shall not become effective and a part
of this Lease until a copy thereof shall have been delivered to Tenant and
shall
not unreasonably and materially interfere with Tenant's conduct of its business
or Tenant's use or enjoyment of the Premises.
7.6 Conditions
at End of Term.
Upon
the termination of this Lease or upon the expiration of the term of this Lease,
Tenant shall surrender the Premises in the same condition as received, normal
wear and tear excepted. Normal wear means wear occurring without negligence,
carelessness, accident or abuse. Specifically, any wall, ceiling or door surface
which has been marred or perforated in such a manner as to be unsightly or
unusable by a future tenant and floor covering which has been damaged by
stain(s), burn(s) or tear(s) will be replaced by Tenant prior to its
surrendering the Premises; provided, removal of hanging pictures or diplomas
shall be deemed to be the result of normal wear. Tenant's duty hereunder shall
include the duty to clean the Premises and to deliver the current keys to
Landlord. Upon termination of this Lease, Tenant shall also, if Landlord so
elects, remove all alterations, physical additions, improvements and attached
furniture and trade fixtures erected or installed by Tenant with the consent
of
Landlord and restore the Premises to their original condition, otherwise, such
items shall be delivered up to Landlord with the Premises. The above
notwithstanding, Tenant shall at its sole cost and expense remove all cabling,
including but not limited to all telephone lines, computer networking cables
and
other communication lines installed by Tenant or by Tenant's contractors in
or
about the Premises or within the Building.
8. LIENS
8.1 Tenant's
Obligation.
Tenant
shall keep the Premises and Building and Property free and clear of any liens
and shall indemnify, hold harmless and defend Landlord from any such liens
and
encumbrances. In the event any lien is filed, Tenant shall do all acts necessary
to discharge such lien within thirty (30) days of filing. In the event Tenant
shall fail to pay any lien claim when due, then Landlord shall have the right
to
expend all sums necessary to discharge the lien claim, and Tenant shall pay
promptly after demand all sums expended by Landlord in discharging any lien,
including attorneys' fees and costs.
9. ENTRY
9.1 Rights
of Landlord.
Landlord and its agents shall have the right at any reasonable time and upon
reasonable notice to Tenant to enter upon the Premises for the purpose of
inspection, construction, serving or posting notices, showing to a prospective
purchaser, or making any changes, alterations or repairs which Landlord shall
deem necessary for the protection, improvement or preservation of the Premises
or the Building and Property or for any other lawful purpose. At any time after
ninety (90) days prior to the expiration of the term of the Lease, Landlord
show
the Premises to a prospective successor tenant.
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9.2 Certain
Rights Reserved by Landlord.
Landlord shall have the following rights, exercisable without notice and without
liability to Tenant, for damage or injury to property, persons, or business,
and
without effecting an eviction, constructive or actual, or disturbance of
Tenant's use or possession, or giving rise to any claim for set-off or abatement
of Rental::
(a) |
To
install, affix, and maintain any and all signs on the exterior and
interior of the Building.
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(b) |
To
designate and approve, prior to installation, all types of window
shades,
blinds, drapes, awnings, window ventilators, and other similar equipment,
and to control all internal lighting that may be visible from the
exterior
of the Building
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(c) |
To
designate, restrict and control all locations from which Tenant may
supply
ice, drinking water, towels, toilet supplies, shoe shining, catering,
food
and beverages, or like or other services on the Premises, and in
general
to reserve to Landlord the exclusive right to designate, limit, restrict,
and control any business and any service in or to the Building and
its
tenants.
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(d) |
To
retain at all times, and to use in appropriate instances, keys to
all
doors within and into the Premises. No locks shall be changed or
added
without the prior written consent of
Landlord.
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(e) |
To
decorate and to make repairs, alterations, additions, changes or
improvements, whether structural or otherwise, in and about the Building,
or any part thereof, and for such purposes to enter upon the Premises,
and, during the continuance of any of such work, to temporarily close
doors, entryways, public space, and corridors in the Building, to
interrupt or temporarily suspend Building services and facilities
and to
change the arrangement and location of entrances or passageways,
doors and
doorways, corridors, elevators, stairs, toilets, or other public
parts of
the Building, all without abatement of rent or affecting any of Tenant's
obligations hereunder, so long as the access to the Premises is not
eliminated or materially impaired.
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(f) |
To
have and retain a paramount title to the Premises free and clear
of any
act of Tenant purporting to burden or encumber the
Premises.
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(g) |
To
grant to anyone the exclusive right to conduct any business or render
any
service in or to the Building.
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(h) |
to
approve the weight, size and location of heavy equipment and articles
in
and about the Premises and the Building following a specific written
request for such approval from Tenant prior to any such installation,
and
to require all such items and furniture and similar items to be moved
into
and out of the Building and Premises only at such times and in such
manner
as Landlord shall direct in writing. Movements of Tenant's property
into
or out of the Building and within the Building are entirely at the
risk
and responsibility of Tenant and Landlord reserves the right to require
permits before allowing any such property to be moved into or out
of the
Building.
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(i) |
To
prohibit the placing of vending or dispensing machines of any kind
in or
about the Premises without the prior written permission of
Landlord.
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2006
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10. ASSIGNMENT
AND SUBLETTING
10.1 Limitation.
Tenant
shall not assign, convey, pledge or encumber this Lease, sublet the whole or
any
part of the Premises or grant any license, concession or other right of
occupancy of all or any portion of the Premises without the prior written
consent of Landlord. This prohibition against assigning or subletting shall
be
construed to include a prohibition against any assignment or subletting by
operation of law. In the event of any assignment or subletting of this Lease,
made with or without Landlord's consent, Tenant shall nevertheless remain liable
for the performance of all of the terms, conditions and covenants of this Lease.
Landlord shall be entitled to, and Tenant shall promptly remit to Landlord
as
additional rental hereunder, all sums which Tenant receives as the result of
any
such subletting or assignment in excess of the Rental payable to Landlord
required hereunder, whether or not such subletting or assignment is consented
to
by Landlord. Or, Landlord shall have the further option to convert the sublease
into a prime lease and receive all of the rents thereunder. Notwithstanding
anything contained herein to the contrary, any such assignment or subletting
without the prior written consent of Landlord shall be void and constitute
a
breach of the Lease and shall, at the option of Landlord, terminate the
Lease.
Notwithstanding
the foregoing, Tenant may assign all of its interest in this Lease or sublet
all
of the Premises only by written instrument evidencing such assignment or
sublease (a "Permitted Transfer") to the following type of entities (a
"Permitted Transferee") without the written consent of Landlord:
(a) |
any
person or entity which, directly controls, is controlled by, or is
under
common control with Tenant so long as Tenant's obligations hereunder
are
assumed by such person or entity;
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(b) |
any
corporation in which or with which Tenant is merged or consolidated,
in
accordance with applicable statutory provisions governing merger
and
consolidation of corporations, so long as Tenant's obligations hereunder
are assumed by the corporation surviving such merger or created by
such
consolidation; or
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(c) |
any
corporation acquiring all or substantially all of Tenant's assets
so long
as Tenant's obligations hereunder are assumed by such
corporation.
|
Tenant
shall promptly notify Landlord of any such Permitted Transfer. Tenant shall
remain liable for the performance of all of the obligations of Tenant hereunder,
or if Tenant no longer exists because of a merger, consolidation, or
acquisition, the surviving or acquiring entity shall expressly assume in writing
the obligations of Tenant hereunder. Additionally, the Permitted Transferee
shall assume all of Tenant's obligations and comply with all of the terms and
conditions of this Lease, including the limitation on use herein contained,
and
the use of the Premises by the Permitted Transferee may not violate any other
agreements affecting the Premises, the Building, Landlord or other tenants
of
the Building. At least fifteen (15) days before the effective date of any
Permitted Transfer, Tenant agrees to furnish Landlord with copies of the
instrument effecting any of the foregoing Transfers and documentation
establishing Tenant's satisfaction of the requirements set forth above
applicable to any such assignment or sublet. The occurrence of a Permitted
Transfer shall not waive Landlord's rights as to any subsequent assignment,
subletting or other transfer of this Lease or any interest therein. Any
subsequent assignment, subletting or other transfer of this Lease or any
interest therein by a Permitted Transferee shall be subject to Landlord's prior
written consent (as hereinabove provided).
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10.2 Violation.
No
consent to any assignment, voluntarily or by operation of law, of this Lease
or
any subletting of said Premises shall be deemed to be a consent to any
subsequent assignment or subletting, except as to the specific instance covered
thereby.
10.3 Assignment
by Landlord.
Landlord shall have the right to transfer and assign, in whole or in part,
any
of its rights under this Lease and in the Building and Property referred to
herein and Landlord shall, by virtue of such assignment, be released from all
obligations hereunder.
11. INDEMNIFICATION
11.1 Tenant's
Obligations.
Tenant
hereby agrees to indemnify, defend and hold Landlord and its officers,
directors, employees, agents, directors, trustees, plan administrators and
beneficiaries (collectively the "Landlord Indemnitees") harmless from and
against any and all damages, losses, costs, expenses, obligations, fines, claims
and liabilities (including reasonable attorney's fees and court costs) suffered
by any Landlord and/or the Landlord Indemnitees as a result of, caused by,
arising out of, or in any way relating to (a) non compliance with or violation
of any Law applicable to Tenant or its use and occupancy of the Premises; (b)
the use, generation, storage, treatment, or transportation, or the disposal
or
other release into the environment, of any Hazardous Materials by Tenant or
its
employees, agents, or contractors; (c) any breach, violation or non-performance
of any term, provisions, covenant, agreement or condition on the part of Tenant
hereunder; (d) any injury or damage to any person or property, occurring in
or
about the Premises; or (e) any injury or damage to any person or property,
occurring in or about the Building or the Property as a result of any negligent
act or omission or willful misconduct of Tenant, or its contractors, licensees,
agents, employees, guests, or visitors. IT IS INTENDED THAT THE LANDLORD SHALL
NOT BE LIABLE FOR ITS ACTS OR OMISSIONS OF ACTUAL OR COMPARATIVE NEGLIGENCE
AND
THAT THIS INDEMNITY COMPLY WITH THE EXPRESS NEGLIGENCE STANDARDS OF THE LAWS
OF
THE STATE OF TEXAS. Notwithstanding the foregoing, however, nothing in this
Lease unless expressly stated to the contrary shall be construed as an
indemnification or release of Landlord from any claims, suits, actions, damages
or causes of action to the extent caused by any act or omission of sole or
gross
negligence or willful misconduct of Landlord or any of Landlord's agents,
servants or employees. It is also understood and agreed that it is not intended
by virtue of the provisions in favor of Landlord herein to create any right
in
third parties, or to impose any duty on Tenant with respect to any third parties
which Tenant would not otherwise have, and the agreements between Landlord
and
Tenant herein shall not inure to the benefit of any third party beneficiaries.
However, the provisions in favor of Landlord shall inure to the benefit of
any
successors in interest to Landlord.
12. INSURANCE
AND TAXES
12.1 Fire
Insurance.
Landlord shall take out and keep in force during the term of this Lease, a
Texas
standard fire insurance policy, including coverage for the perils enumerated
under the policy definition of fire, lightning, and extended coverage, with
six
months' rent insurance covering the Building and Property situated on the real
property described on Exhibit "A" attached hereto. The proceeds shall be applied
by Landlord pursuant to the provisions of Article 15. Tenant will carry at
Tenant's own expense adequate insurance on all of Tenant's property located
in,
about, or on the Premises.
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12.2 Liability
Insurance.
Tenant
shall maintain, in full force during the term hereof, a policy of comprehensive
general liability insurance which shall include independent contractors and
product and completed operation liability and property damage insurance under
which Landlord is named as an additional insured. Such insurance shall also
provide blanket contractual liability coverage. Tenant shall deliver to Landlord
a copy of such policy or other evidence suitable to Landlord of the
effectiveness of such insurance within ten (10) days after Tenant initially
occupies the Premises or any portion thereof and thereafter within thirty (30)
days prior to the expiration of such policy. The minimum limits of liability
on
such policy shall be $1,000,000.00 for injury or death in one occurrence,
$2,000,000.00 annual aggregate, and $1,000,000.00 with respect to damage to
property, but the limits of such insurance shall not constitute a limit on
Tenant's obligation to indemnify, defend and hold Landlord harmless pursuant
to
the provisions of this Lease. All property of every kind which may be on the
Premises during the Term of this Lease shall be at the sole risk of Tenant,
and
Landlord shall not be liable for any loss or damage thereto.
12.3 Tenant's
Property Insurance.
At all
times during the term of this Lease Tenant will carry and maintain, at Tenant's
expense, insurance covering all of Tenant's furniture and fixtures, machinery,
equipment, stock and any other personal property owned or used by Tenant's
business and found in, on, or about the Building, and any leasehold improvements
to the Premises carried out by Tenant, in an amount of not less than the full
replacement cost. The Tenant's insurance for its personal property as required
under this Paragraph will provide for coverage on a broad form basis insuring
its "all risk of direct physical loss". All policy proceeds will be used to
repair or for the replacement of the property damaged or destroyed; however, if
this Lease ceases under the provisions of casualty damage, Tenant will be
entitled to any proceeds resulting from damage to Tenant's furniture and
fixtures, machinery and equipment, stock and any other personal property other
than leasehold improvements to the Premises.
All
insurance policies to be maintained by Tenant will provide that they may not
be
terminated nor may coverage be reduced except after thirty (30) days' prior
written notice to Landlord. All commercial, general liability and property
policies maintained by Tenant will be written as primary policies, not
contributing with and not supplemental to the coverage that Landlord may
carry.
12.4 Waiver
of Subrogation.
Landlord and Tenant hereby release each other from any and all liability or
responsibility to the other or anyone claiming through or under them by way
of
subrogation for any loss or damage to property caused by fire or any of the
extended coverage or supplementary contract casualties, even if such fire or
other casualty shall have been caused by the fault or negligence of the other
party or anyone for whom such party may be responsible. All fire and extended
coverage insurance carried by either Landlord or Tenant covering losses arising
out of the destruction of or damage to the Premises or its contents shall
provide for a waiver of rights of subrogation against Landlord and Tenant on
the
part of the insurance carrier.
12.5 Procedure.
The
policies required by Sections 12.2 and 12.3 shall be with a Best's A+, Class
X
company. A certificate as to such Tenant insurance shall be presented to
Landlord, and renewals thereof as required shall be delivered to Landlord at
least ten (10) days prior to the expiration of the respective policy terms.
Tenant and Landlord shall have the right to provide such insurance coverage
pursuant to blanket policies, provided such blanket policies expressly afford
coverage to the Premises and to Tenant and Landlord as required by this Lease.
Tenant shall obtain a written obligation on the part of any such insurance
company to notify Landlord in writing of any delinquency in premium payments
and
at least ten (10) days prior thereto of any cancellation of any such policy.
Tenant agrees that if Tenant does not take out such insurance or keep the same
in full force and effect, Landlord may take out the necessary insurance and
pay
the premium therefore, and Tenant shall promptly repay to Landlord the amount
so
paid, after demand, as additional rental.
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12.6 Personal
Property Taxes.
Tenant
shall pay before delinquency any and all taxes, assessments, license fees and
public charges levied, assessed or imposed and which become payable during
the
term of the Lease upon Tenant's fixtures, furniture, appliances and personal
property installed or located in or about the Premises. In the event any or
all
of Tenant's fixtures, furnishings, equipment, and other personal property shall
be assessed and taxed with the property of Landlord, Tenant shall pay to
Landlord its share of such taxes within ten (10) days after delivery to Tenant
by Landlord of a statement in writing setting forth the amount of such taxes
applicable to Tenant's fixtures, furnishings, equipment or personal
property.
13. DEFAULT
13.1 Default
by Tenant.
Tenant
shall be deemed in default hereof in the event Tenant should:
(a) |
Default
in the prompt payment of Rental or any other monies due hereunder
when the
same is due and Tenant shall fail to cure such default within five
(5)
days following receipt of written notice from Landlord of such default,
provided however Landlord shall only be required to give Tenant written
notice of such default one time during any calendar
year.
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(b) |
Violation
of any other of the covenants performable by Tenant hereunder after
notice
is sent to Tenant and if Tenant does not cure such violation within
fifteen (15) days of receipt of such notice (or a longer period of
time as
may be reasonably necessary provided that Tenant commences to cure
such
violation within fifteen (15) days of notice and thereafter diligently
pursues to completion).
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(c) |
Tenant
or any Guarantor of the Lease should file a voluntary petition in
bankruptcy, be adjudged bankrupt, be placed in or subjected to
receivership, or make an assignment for benefit of creditors;
or
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(d) |
Tenant
should fail to promptly move into or take possession of the Premises
when
the same are ready for occupancy or shall cease to do business in
or
abandon all or any substantial portion of the
Premises.
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(e) |
Tenant
shall be dissolved, liquidated or otherwise ceases to exist in good
standing under applicable law.
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(f) |
Any
guarantor of this Lease fails or refuses to perform or comply with
such
guarantor’s guaranty of this Lease.
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(g) |
Tenant’s
leasehold estate is taken in execution or other process of law in
any
action against Tenant.
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Upon
default, Landlord shall have the option to do any one or more of the following
without any notice or demand, in addition to and not in limitation of any other
remedy permitted by law or by this Lease.
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(a) |
Landlord,
with or without terminating this Lease, may take any reasonable action
to
remedy any failure of Tenant to comply with or perform this Lease,
and may
enter the Premises as necessary to do so. Tenant must reimburse Landlord
on written demand for all costs so incurred, plus a Building standard
charge to compensate Landlord for the additional administrative
burden.
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(b) |
Landlord
may terminate this Lease and enter and repossess the Premises by
forcible
entry or detainer suit or as otherwise permitted by law without additional
demand or notice of any kind to Tenant, and remove all persons or
property
therefrom using such lawful force as may be necessary (and Tenant
hereby
waives any claim for loss or damage by reason of such reentry,
repossession, or removal), in which case Landlord will be entitled
to
recover form Tenant (i) the cost of repossessing the Premises (including
without limitation, reasonable attorneys’ fees and costs of litigation),
(ii) the anticipated cost of any repairs, alterations, additions,
and
improvements to the Premises, leasing inducements, and brokerage
commissions for reletting the Premises, (iii) all unpaid Rental owed
at
the time of termination, (iv) the present value of the balance of
the
Rental for the remainder of the Term, less the present fair market
rental
value of the Premises for the same period (taking into account all
relevant factors, including market rent concessions and the time
necessary
to relet the Premises and using a discount rate per annum equal to
the
interest rate on U.S. Treasury obligations with a maturity comparable
to
the length of the remainder of the Term), and (v) interest and any
other
sum of money or damages owing by Tenant to Landlord. On termination
of
this Lease, Landlord may elect to evict all subtenants and others
in
possession, or on attornment of any subtenant to Landlord, to recognize
such sublease as a direct lease between the subtenant and
Landlord.
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(c) |
Landlord
may terminate Tenant’s right of possession (but not this Lease), enter and
repossess the Premises by forcible entry or detainer suit or as otherwise
permitted by law without demand or notice of any kind to Tenant and
without terminating this Lease, and remove all persons or property
therefrom using such lawful force as may be necessary (and Tenant
hereby
waives any claim for loss or damage by reason of such reentry,
repossession, or removal), in which case Landlord may (but will not
be
obligated to) relet the Premises for the account of Tenant for such
rent
and upon such terms as are satisfactory to Landlord, and without
preference to any other space in the Building. The rent actually
received
from such reletting of the Premises, if any, will be applied to (i)
the
cost of repossessing the Premises (including without limitation,
reasonable attorneys’ fees and costs of litigation), (ii) the cost of any
repairs, alterations, additions, and improvements to the Premises,
leasing
inducements, and brokerage commissions paid by Landlord for reletting
the
Premises (which Landlord is hereby authorized to make), (iii) accrued
unpaid Rental, and (iv) interest and any other sum of money or damages
owing by Tenant to Landlord. If an any time or from time to time
the rent
actually received from such reletting of the Premises, if any, is
not
sufficient to pay all such sums then accrued, the deficiency will
be due
and payable from Tenant to Landlord on written demand. Landlord may
file
suit to recover any such deficiency at any time or from time to time
without being obliged to wait until expiration of the Term, and no
recovery of any sum due Landlord will be a defense to recovery of
any
amount not previously reduced to judgment. No reletting of the Premises
will be construed as an election on the part of Landlord to terminate
this
Lease, which termination will occur, if at all, only by express written
notice of termination to Tenant. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to
terminate this Lease for any previous default of
Tenant.
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In
entering the Premises pursuant to this Section, Landlord may use a duplicate
or
master key or lock combination or other lawful means, and may thereafter change
the locks to the Premises to preclude further access by Tenant or others; and
Tenant waives any requirement of law to the contrary.
Even
if
this Lease is not terminated, Landlord may terminate all rights of Tenant,
if
any, to receive any allowance, reimbursement payment, or other concession under
any provision of this Lease and all renewal, extension, expansion, cancellation,
termination or other options of Tenant, if any, under any provision of this
Lease.
Pursuit
of any of the foregoing remedies shall not preclude pursuit of any of the other
remedies herein provided or any other remedies provided by law. Pursuit of
any
remedy herein provided shall not constitute a forfeiture or waiver of any rent
due to Landlord hereunder or of any damages accruing to Landlord by reason
of
the violation of any of the terms, provisions and covenants herein contained.
No
waiver by Landlord of any violation or breach of any of the terms, provisions
and covenants herein contained shall be deemed or construed to constitute a
waiver of any other violation or breach of the terms, provisions and covenants
herein contained. Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default, or delay by Landlord in enforcing
one
or more of such remedies upon an event of default, shall not be deemed or
construed to constitute a waiver of such default.
13.2 Default
by Landlord.
In the
event of any default by Landlord hereunder, Tenant's exclusive remedy shall
be
an action for damages but prior to any such action Tenant shall give Landlord
written notice specifying such default with reasonable detail, and Landlord
shall thereupon have thirty (30) days in which to cure any such default. If
such
default cannot reasonably be cured within such thirty (30) day period, the
length of such period shall be extended for the period reasonably required
therefore if Landlord commences curing such default within such thirty (30)
day
period and continues the curing thereof with reasonable diligence and
continuity. Unless Landlord fails to cure any default after such notice, Tenant
shall not have any remedy or cause of action by reason thereof. In the event
any
default on the part of Landlord remains uncured after said notice, Tenant will
give notice by registered or certified mail to any beneficiary of a deed of
trust or mortgagee of a mortgage covering the Premises whose address shall
have
been furnished it, and shall offer such beneficiary or mortgagee a reasonable
opportunity to cure the default. The term "Landlord" shall mean only the last
owner of the Building and Property, and in the event of the transfer by such
owner of its interest in the Building and Property, such owner shall thereupon
be released and discharged from all covenants and obligations of the Landlord
thereafter accruing, but such covenants and obligations shall be binding during
the term of this Lease upon each new owner of the Building and Property for
the
duration of such owner's ownership of the Building and Property. In addition,
Tenant specifically agrees to look solely to Landlord's interest in the Building
and Property for the recovery of any judgment from Landlord pursuant to this
Lease, it being agreed that neither Landlord nor any successors or assigns
of
Landlord nor any future owner of the Building and Property shall ever be
personally liable for any such judgment.
13.3 Limitation
on Liability of Landlord.
(a) |
Except
in the event of sole or gross negligence or willful misconduct on
the part
of Landlord or its employees or agents, Landlord shall not be liable
to
Tenant or any of Tenant's agents, employees, servants, invitees,
licensees
or any other person claiming by, through or under Tenant or entering
upon
the Property or the Building under or with the express or implied
invitation of Tenant for any personal injury, including death, to
persons
or damage to property due to (i) the condition or design or any defect
in
the Building, Retail Center or Premises or the mechanical systems
and
equipment which may exist or occur, (ii) any portion of the Premises,
Building, Retail Center, Facilities becoming out of repair or arising
from
the leaking of gas, water, sewer, steam, pipes, electricity or otherwise,
or (iii) acts or omissions of other tenants of the Building, Retail
Center, and other tenants' agents, employees, servants, contractors,
invitees, licensees, any other person entering upon the Property
or the
Retail Center under or with the express or implied invitation of
other
tenants, or any other person on the Property or in the Building for
any
purpose whatsoever. Tenant, with respect to itself and its agents,
employees, servants, contractors, invitees, licensees or any other
person
entering upon the Property or the Building under or with the express
or
implied invitation of Tenant hereby expressly assumes all risks of
personal injury, including death, to persons or damage to property,
either
proximate or remote, by reason of the present or future condition
of the
Premises or the Building and expressly release Landlord of and from
any
and all liability for such damage or loss, except in the event of
sole or
gross negligence or willful misconduct on the part of Landlord or
its
employees or agents.
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(b) |
Any
liability of Landlord under the terms of this Lease or in connection
with
the Premises shall be limited to the interest of Landlord in the
Property,
and Landlord shall not be personally liable for any deficiency. This
clause shall not be deemed to limit or deny any remedies which Tenant
may
have in the event of default by Landlord hereunder which do not involve
the personal liability of Landlord.
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(c) |
None
of Landlord’s officers, employees, trustees, beneficiaries, agents,
directors, shareholders or partners will ever have any liability
to Tenant
under or in connection with this Lease, and Tenant hereby waives
and
releases all claims, causes of action, or other rights of recovery
it may
ever have against such parties under or in connection with this
Lease.
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14. COST
OF SUIT
14.1 Right
to Recover.
If
legal action shall be brought by either of the parties hereto because of the
breach of any term, covenant or provision hereof, the party prevailing in said
action (Landlord or Tenant as the case may be) shall be entitled to recover
from
the party not prevailing, costs of suit and reasonable attorneys' fees incurred
by the prevailing party in the action.
15. LOSS
OF PREMISES BY FIRE, EMINENT DOMAIN, OR OTHER CASUALTY
15.1 Restoration
of the Premises.
In the
event that the Premises are damaged by fire or other casualty, Tenant shall
give
immediate written notice of such damage to Landlord and to any mortgagee of
the
Premises whose address shall have been furnished it, and Landlord shall proceed
with all reasonable diligence to commence and complete restoration of the
Premises to substantially their condition immediately prior to the casualty
at
Landlord's expense within one hundred twenty (120) days from the date of such
damage, during which restoration period this Lease shall remain in full force
and effect, except that Rental shall be reduced in proportion to the percentage
which the area of the unusable portion of the Premises bears to the area of
the
entire Premises. Landlord's obligation to restore the Premises shall be limited
to the scope of Landlord's original work and shall be limited to the extent
insurance proceeds are actually received by Landlord as a result of such
casualty. Tenant shall be entirely responsible for the restoration of
improvements by Tenant and of Tenant's personal property. In the event that
the
Premises cannot be restored within one hundred twenty (120) days of the date
of
such damage, then Landlord may cancel this Lease effective upon notice of such
cancellation given to the other party.
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15.2 Casualty
Caused By Tenant.
Notwithstanding anything contained hereinabove to the contrary, if such damage
is contributed to or results from the fault of Tenant, Tenant's employees,
servants, agents, or visitors, and such damage shall be repaired by and at
the
expense of Tenant under the control, direction and supervision of Landlord,
and
the rent shall continue without abatement or reduction.
15.3 No
Restoration.
Notwithstanding anything contained hereinabove to the contrary, in the event
that (i) any mortgagee of the Premises refuses to make the proceeds of
Landlord's insurance immediately available to Landlord for the restoration
of
the Premises, (ii) such damage is the result of any casualty other than a
casualty for which Landlord is required to provide insurance, (iii) the cost
of
such restoration is estimated to exceed eighty percent (80%) of the replacement
cost of the Building and Property, (iv) the casualty renders any substantial
part of the Premises untenantable and at the time, less than two (2) years
remain until the expiration of the Term, or (v) any part of the Building or
Property is damaged to the extent that in Landlord’s judgment, restoration is
not practical (whether or not the Premises have been damaged by the casualty),
then Landlord, at Landlord's option, shall be released from the obligation
to
restore the Premises by giving notice of such event and of Landlord's election
not to so restore, which notice must be given to Tenant within sixty (60) days
of the date of the damage and Landlord or Tenant may terminate this Lease by
providing the other with thirty (30) days prior written notice.
15.4 Eminent
Domain.
If
during the term of this Lease any part of the Building or Property is taken
by
condemnation or conveyed to an entity having the power to take property by
condemnation under threat of such a taking, Landlord may elect to terminate
this
Lease or to continue the Lease, the Rental and Additional Rental, if any, shall
be reduced in proportion to the area of the Premises so taken or conveyed and
Landlord shall repair any damage to the Premises or the Building or Property
resulting from such taking. All sums awarded or agreed upon between Landlord
and
the condemning authority for the taking or conveyance, whether as damages or
as
compensation, shall be the property of Landlord only. If this Lease is
terminated pursuant to the provisions of this Paragraph 15.4, such termination
shall be effective on and the Rental and Additional Rental, if any, shall be
payable up to the date that possession is taken by the authority condemning
or
threatening to condemn and Landlord shall refund to Tenant any prepaid unaccrued
Rental and Additional Rental, if any, less any sums then owing by Tenant to
Landlord. For the purposes of this Section 15.4, a sale to an entity having
the
power to take property by condemnation under threat of condemnation shall
constitute a vesting of title and shall be construed as a taking by such
condemning authority.
16. HOLDING
OVER
16.1 Holdover.
Should
Tenant continue to occupy the Premises after the expiration of the term hereof,
whether with or against the consent of Landlord, such tenancy shall be from
month to month and under all the terms, covenants and conditions of this Lease,
but at double the Base Rentals, as computed on a monthly basis, for the term
of
the Lease immediately preceding the hold over period herein.
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17. SUBORDINATION
AND STATEMENT OF CONDITION OF LEASE
17.1 Subordination.
Tenant
hereby subordinates this Lease and all rights of Tenant hereunder to any zoning
ordinances and other governmental regulations relating to the use of the
Premises or the Building and Property and to any mortgage or mortgages, or
vendor's lien, or similar instruments which now are or which may from time
to
time be placed upon the premises covered by this Lease and such mortgage or
mortgages or liens or other instruments shall be superior to and prior to this
Lease. Landlord is hereby irrevocably vested with full power and authority,
if
it so elects at any time, to subordinate this Lease to any mortgage hereafter
placed upon the Premises or upon the Building and Property, and Tenant shall
at
any time hereafter, on demand, execute any instruments, releases or other
documents that may be required by the Landlord or any mortgagee or beneficiary
under any deed of trust for the purpose of subjecting and subordinating this
Lease to the lien of any such mortgage or deed of trust. Tenant further
covenants and agrees that if any mortgagee or other lienholder acquires the
Premises by foreclosure, or if any other person acquires the Premises as a
purchaser at any such foreclosure sale (any such mortgagee or other lienholder
or purchaser at a foreclosure sale being each hereinafter referred to as the
"Purchaser at Foreclosure"), Tenant shall thereafter, but only at the option
of
the Purchaser at Foreclosure, as evidenced by the written notice of its election
given to Tenant within a reasonable time thereafter, remain bound by novation
or
otherwise to the same effect as if a new and identical lease between the
Purchaser at Foreclosure, as landlord, and Tenant, as tenant, had been entered
into for the remainder of the term of the Lease in effect at the institution
of
the foreclosure proceedings. Tenant agrees to execute any instrument or
instruments which may be deemed necessary or desirable further to effect the
subordination of this Lease to each such mortgage, lien or instrument or to
confirm any election to continue the Lease in effect in the event of
foreclosure, as above provided. Tenant hereby irrevocably appoints Landlord
its
attorney-in-fact in its name, place and stead to execute any subordination
agreement, or other agreement required to be executed by Tenant pursuant to
the
terms of this Article 17 which Tenant fails to execute within three (3) days
of
demand.
18. SIGNS
18.1 Right
of Landlord.
Landlord reserves the right to affix signage to the exterior walls and the
roof
of the leased Premises and of the Building or the Property. Except for the
entry
letters and numerals initially installed by Landlord no signs or other graphics
relating to Tenant or its business that are visible from the exterior of the
Building or from lobby or other common areas of the Property may be installed
anywhere on the Property. If Landlord elects to permit any such signs or
graphics, the size, location and appearance thereof must by satisfactory to
Landlord in its discretion. Tenant may not use the name of Landlord or of the
Building or Property for any purpose other than to identify the location of
the
Premises in Tenant’s address.
19. SECURITY
19.1 Security.
Tenant,
at Tenant's expense, shall provide whatever security and/or alarm systems which
Tenant deems necessary and appropriate for the protection of the Premises and
of
Tenant's fixtures, inventory and equipment located therein. In no event shall
Landlord be responsible for the loss of or damage to any of Tenant's fixtures,
inventory and equipment situated in the Premises, even though Landlord may
have
provided general area security or guard services. Tenant is expressly advised
that if Tenant should place any fixtures, inventory and equipment within the
Premises prior to the time the Premises are completed and delivered to Tenant,
the risk of loss or damage to the same will be greatly increased in view of
the
fact that numerous people will, out of necessity, be permitted access to the
Premises for the purpose of completing the same. Landlord may provide general
area security or guard services as required from time to time, in which event
Tenant shall pay to Landlord, promptly after demand, Tenant's Proportionate
Share of the costs incurred by Landlord in having such services
performed.
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20. ESTOPPEL
CERTIFICATE.
20.1 Tenant
shall execute, acknowledge and deliver to Landlord, without any charge, at
any
time within five (5) days after request by Landlord, a written statement or
estoppel certificate as may be required by any mortgagee of the Premises or
Building and Property to the effect that this Lease, as of said date, is
unmodified and in full force and effect (or if there have been modifications,
that this Lease is in full force and effect as modified), the date of
commencement of the Lease, the dates on which rental has been paid, and such
other information as Landlord shall reasonably request. Any such statement
by
Tenant shall be used by Landlord for delivery to and reliance upon by
prospective purchasers and lenders whose security will consist of liens upon
the
Premises and Building and Property and shall not affect Tenant's right to later
assert any subsequent default or modification.
20.2 Tenant
further agrees to furnish from time to time, when requested, any and all
reasonable and customary attornment agreements or estoppel certificates which
may be required by any holder of a Mortgage or any existing or prospective
purchaser of the Building and/or Property. Tenant's failure to deliver such
certificates upon request shall be conclusive upon Tenant (i) that this Lease
is
in full force and effect, without modification except as may be represented
by
Landlord, (ii) that to Tenant's knowledge there are no uncured defaults in
Landlord's performance, and (iii) that no rent has been paid in advance except
as set forth in this Lease.
21. LANDLORD'S
LIEN
21.1 Landlord
shall have and is hereby granted at all times a lien and security interest
for
the purpose of securing the payment of all rentals and other sums of money
becoming due hereunder from Tenant, such lien/security interest to cover and
attach to all goods, wares, equipment, fixtures, furniture and other personal
property situated in the Premises, and such property shall not be removed
therefrom without the consent of Landlord. Upon the occurrence of an event
of
default by Tenant, Landlord shall have, in addition to any other remedies
provided herein, at law, or in equity, all remedies available to a secured
party
pursuant to all articles of the Texas Business and Commerce Code. This Article
23 shall constitute a security agreement in accordance with the terms of the
Texas Business and Commerce Code and Landlord shall be entitled to require
the
execution by Tenant and filing of such financing statements to perfect the
security interest herein granted, as Landlord shall elect. The statutory lien
for rent is not hereby waived, the express contractual lien herein granted
being
in addition and supplementary thereto.
22. NOTICE
22.1 Requirement.
All
notices or demands of any kind required to be given by Landlord or Tenant
hereunder shall be in writing and shall be given by (i) placing the notice
in
the United States mail, certified or registered, properly stamped, (ii)
delivered by nationally recognized overnight delivery service, or (iv) by
personal delivery, in each case addressed to Landlord or Tenant at the location
described in the Basic Terms attached hereto as Exhibit "A" or such other
addresses as the respective party may direct in writing to the other. Such
notice shall be deemed effective (A) two (2) days after such placing in the
mail
when delivered by U.S. Mail service, (B) on the day actually delivered by an
overnight delivery service, or (C) upon such personal delivery.
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22.2 Waiver
of Notice.
Except
as specifically provided in this Lease, Tenant hereby expressly waives the
service of intention to terminate this Lease or to re-enter the Premises and
waives the service of any demand for payment of Rent or for possession and
waives the service of any other notice or demand prescribed by any statute
or
other law.
23. NO
REPRESENTATIONS
23.1 Landlord
or Landlord's agents have made no representations or promises with respect
to
the Building, Property, or the Premises, except as herein expressly set forth,
and no rights, easements or licenses are acquired by Tenant, by implication
or
otherwise, except as expressly set forth in the provisions of this
Lease.
24. QUIET
ENJOYMENT
24.1 Tenant,
subject to the terms and provisions of this Lease, on payment of the Rental
and
observing, keeping and performing all the terms and provisions of this Lease
on
its parts to be observed, kept and performed, shall lawfully, peaceably and
quietly have, hold and enjoy the Premises during the term hereof on and after
the term commencement date without hindrance or ejection by Landlord and any
persons lawfully claiming under Landlord, subject nevertheless to the terms
and
conditions of this Lease and to any ground or underlying lease and/or
mortgage(s).
25. RULES
AND REGULATIONS
25.1 Tenant
and Tenant's agents, employees and invitees will comply fully with any
reasonable rules and regulations governing the operation and use of the Premises
which are hereinafter imposed by Landlord upon all tenants of the Building
and
Property in order to preserve the rights and peaceful occupancy of all tenants
of the Building and Property. The failure of the Landlord to enforce any of
the
rules and regulations against the Tenant and/or any other tenant in the building
shall not be a waiver of such rules and regulations. Landlord shall not be
responsible to Tenant for the non-observance or violation of any of the rules
and regulations by any other Tenant but Landlord will nevertheless use
reasonable efforts to require compliance by all tenants.
26. HAZARDOUS
SUBSTANCES
26.1 Tenant
shall not release or cause or permit to be released (whether by way of
uncapping, pouring, spilling, spraying, spreading, attaching, or otherwise)
into
or onto the Premises, or the Building(s), or the Building and Property, or
the
Common Areas (including the ground and ground water thereunder and the sewer
and
drainage systems therein) any hazardous substances (as defined or established
from time to time by applicable local, state or federal law). The term
"hazardous substances" includes, among other things, hazardous waste. Tenant
shall immediately notify Landlord if any such release occurs, and, as to any
such release that has been caused or permitted by Tenant, Tenant shall
immediately and entirely remove such released hazardous substance at Tenant's
expense, and such removal shall be in a manner fully in compliance with all
laws
pertaining to the removal and storage or disposal thereof. Further, Tenant
shall, upon Landlord's demand and at Tenant's sole expense, demonstrate to
Landlord (through such tests, professional inspections, sampling or otherwise
as
is, in Landlord's sole judgment, sufficient for the purpose) that Tenant has
not
caused or permitted any such release of hazardous substances. In addition to
the
foregoing, Tenant shall at all times be in full compliance with all applicable
codes, regulations, ordinances and statutes, whether local, state or federal,
including applicable environmental laws, such as, for example, the Emergency
Planning and Community Right to Know Act of 1986, or Title III, and any
amendments thereto. The provisions of this paragraph shall survive the
expiration or termination of this Lease.
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27. "AS
IS" NATURE OF PREMISES.
27.1 EXCEPT
AS
OTHERWISE SPECIFICALLY PROVIDED HEREIN, TENANT HEREBY AGREES AND ACKNOWLEDGES
THAT IT IS LEASING THE PREMISES IN ITS EXISTING CONDITION, "AS IS, WHERE IS,
AND
WITH ALL FAULTS WITH RESPECT TO ANY FACTS, CIRCUMSTANCES, CONDITIONS AND
DEFECTS. LANDLORD HAS NO OBLIGATION TO REPAIR OR CORRECT ANY SUCH FACTS,
CIRCUMSTANCES, CONDITIONS OR DEFECTS IN THE CONDITION OF THE PREMISES, NOR
DOES
LANDLORD HAVE ANY OBLIGATION TO COMPENSATE TENANT FOR SAME. NO PROMISE OF
LANDLORD TO ALTER, REMODEL, REPAIR OR IMPROVE THE PREMISES OR THE BUILDING
AND
LAND AND NO REPRESENTATION RESPECTING THE CONDITION OF THE PREMISES OR THE
BUILDING AND LAND HAVE BEEN MADE BY LANDLORD TO TENANT. TENANT EXPRESSLY
ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE SPECIFIED HEREIN, LANDLORD HAS MADE
NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF
LAW,
INCLUDING, BUT OT LIMITED TO, ANY WARRANTY OF CONDITION, TITLE, HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
PREMISES, ALL SUCH REPRESENTATIONS AND WARRANTIES, AS WELL AS ANY IMPLIED
WARRANTIES BEING HEREBY EXPRESSLY DISCLAIMED.
27.2 TENANT
HEREBY AGREES AND ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE SPECIFICALLY STATED
IN
THIS LEASE, LANDLORD HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OR, AS TO, OR
CONCERNING THE NATURE AND CONDITION OF THE PREMISES, INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY, THE SUITABILITY THEREOF AND OF THE
PREMISES OR OTHER ITEMS CONVEYED HEREUNDER FOR ANY AND ALL ACTIVITIES AND USES
WHICH TENANT MAY ELECT TO CONDUCT THEREON, THE EXISTENCE OF ANY ENVIRONMENTAL
HAZARDS OR CONDITIONS THEREON (INCLUDING BUT NOT LIMITED TO THE PRESENCE OF
ASBESTOS OR OTHER HAZARDOUS MATERIALS) OR COMPLIANCE WITH APPLICABLE
ENVIRONMENTAL LAWS, RULES OR REGULATIONS.
28. MISCELLANEOUS
28.1 Captions.
The
captions of the paragraphs contained in this Lease are for convenience only
and
shall not be deemed to be relevant in resolving any questions of interpretation
or construction of any paragraph of this Lease.
28.2 Waiver.
No
covenant, term, condition or breach thereof shall be deemed waived, except
by
written consent of the party against whom the waiver is claimed, and any waiver
or the breach of any covenant, term or condition shall not be deemed to be
a
waiver of any preceding or succeeding breach of the same or any other covenant,
term or condition. Acceptance of all or any portion of Rental at any time shall
not be deemed to be a waiver of any covenant, term or condition as to the Rental
payment accepted.
28.3 Withholding
of Consent.
It is
expressly understood that in any case in which the Landlords consent is required
under the terms of this Lease and the consent is expressly "not to be
unreasonably withheld", Landlord shall not be liable for damages for its failure
to provide this consent, even though withholding of the Landlord's consent
shall
be found unreasonable, so that Tenant's remedy in such event shall be limited
to
injunctive relief.
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28.4 Entirety
Clause.
This
Lease contains and embraces the entire agreement between the parties hereto
and
it or any part of it may not be changed, altered, modified, limited, terminated,
or extended orally or by any agreement between the parties unless such agreement
be expressed in writing and signed by the parties hereto, their legal
representatives, successors or assigns, except as may be expressly otherwise
provided herein.
28.5 Brokerage.
Tenant
warrants that it has had no dealings with any broker or agent other than REOC
Partners, Ltd in connection with the negotiation or execution of this Lease
and
shall indemnify Landlord against any claim from any broker or agent other than
REOC Partners, Ltd in connection with this Lease.
28.6 No
Smoking Policy.
A no
smoking policy is in effect in the Building. Smoking is prohibited in all areas
of the Building, including the Common Areas, restrooms, lobbies, elevators
and
the Premises. Tenant agrees that Tenant and Tenant’s employees, agents and
invitees will not smoke in the Building. Tenant acknowledges that there are
existing tenants in the Building that are not contractually prohibited from
smoking in their lease premises as the present time. Where possible, Landlord
will incorporate this No Smoking Policy into all lease renewals and new leases
from and after the date of this Lease.
28.7 Attorneys'
Fees.
In the
event either party shall become a party to any litigation against the other
party to enforce or protect any rights or interests under this Lease and shall
prevail, the losing party shall reimburse the prevailing party for all
investigative and court costs and attorneys' fees incurred in such
litigation.
28.8 Successors
and Assigns.
All of
the terms, covenants and conditions of this Lease shall be binding upon and
inure to the benefit of the parties hereto and their heirs, executors and
administrators, successors and assigns, except that nothing in this provision
shall be deemed to permit any assignment, subletting or use of the Premises
other than as provided for herein.
28.9 Applicable
Law.
This
Lease shall be governed and interpreted solely by the laws of the State of
Texas
then in force. Each number, singular or plural, as used in this Lease, shall
include all numbers, and each gender shall be deemed to include all
genders.
28.10 Time
and Joint and Several Liability.
Time is
of the essence in this Lease and each and every provision hereof, except as
to
the conditions relating to the delivery of possession of the Premises to Tenant.
All the terms, covenants and conditions contained in this Lease to be performed
by either party, if such party shall consist of more than one person or
organization, shall be deemed to be joint and several, and all rights and
remedies of the parties shall be cumulative and nonexclusive of any other
remedy.
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29. EXHIBITS
There
are
attached to this Lease the following exhibits, which exhibits shall be
considered a part of this Lease for all material purposes.
EXHIBIT
"A" Basic
Terms
EXHIBIT
"B" Legal
Description of the Property
EXHBIT
"B-1" Description
of the Premises
EXHIBIT
"C" Building
Standard Improvements
EXHIBIT
"D" Rules
and
Regulations
Schedule
1 - Work
Letter for Leasehold Improvements
Schedule
2 - Parking
EXECUTED
this 20th day of April, 2006.
LANDLORD:
FROST
NATIONAL BANK, TRUSTEE
FOR
A
DESIGNATED TRUST
By:
REOC
Partners, Ltd., a Texas limited partnership
As
Agent
for Landlord
By:
GWHLT, L.L.C., a Texas limited liability company,
Its:
General
Partner
By: /s/
Xxxx
X. Gold
Name:
Xxxx X. Gold
Title:
President
TENANT:
By: /s/
Xxx
Xxxxxx
Name: Xxxxxx
Xxxxxx
Its: CEO
and
Chairman
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EXHIBIT
"A"
BASIC
TERMS
Tenant:
|
|
Notification
Address:
|
000
Xxxxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxx 00000
Telephone:
(000) 000-0000
Fax:
|
Landlord:
|
FROST
NATIONAL BANK,
TRUSTEE
FOR A DESIGNATED TRUST
|
Notification
Address:
|
c/o
REOC Partners, Ltd.
7800
X-X 00 Xxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxx 00000
Telephone:
(000) 000-0000
Fax(210)
000-0000
with
copy to:
REOC
Partners, Ltd
000
Xxxxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxx 00000
|
Premises:
|
Suite
No. 700 containing a total of 2,547 square feet of net rentable area
("RSF") in the Building as shown on the Floor Plan attached to this
Lease
as Exhibit "B-1"
|
Use
of Premises:
|
General
Office Use.
|
Area
of the Building:
|
168,296
rentable square feet
|
Term:
|
Twelve
(12) full calendar months commencing February 1, 2006
|
Anticipated
Date of Substantial Completion:
|
_________
|
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A-1
Base
Rental:
|
Months
|
Rate1
|
Annual
Amount2
|
Monthly
Installment/RSF
|
|||||||
1-12
|
$24.00
|
$61,128.00
|
$5,094.00
|
||||||||
1
Per square foot of Net Rentable Area per annum
2
Expressed on an annualized basis even though the applicable period
may be
longer or shorter than twelve
months.
|
Security
Deposit:
|
n/a
|
||||
Base
Year:
|
2006
|
||||
Parking
Spaces:
|
Reserved:
|
3
|
|||
Non-Reserved:
|
n/a
|
||||
Leasehold
Improvements:
|
Any
Leasehold Improvements installed in the Premises as of the date of
this
Lease, together with (and as altered by) the Work
Letter
|
||||
Guarantor:
|
None
|
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A-2
EXHIBIT
"B"
LEGAL
DESCRIPTION OF PROPERTY
Xxx
0,
Xxxxx 0, Xxx Xxxx Xxxxx 00000, Xxxxxxx Business Park, Unit 2, an addition to
the
City of San Antonio, Bexar County, Texas, according to the map or plat thereof,
recorded in Volume 9545, Pages 63-64 of the Deed and Plat Records of Bexar
County, Texas.
Xxx
0,
Xxxxx 0, Xxx Xxxx Xxxxx 00000, Xxxxxxx Business Park, Unit 2, an addition to
the
City of San Antonio, Bexar County, Texas, according to the map or plat thereof,
recorded in Volume 9545, Pages 63-64, of the Deed and Plat Records of Bexar
County, Texas.
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B-1
EXHIBIT
"B-1"
FLOOR
PLAN OF PREMISES
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EXHIBIT
"C"
BUILDING
STANDARD IMPROVEMENTS
PARTITIONS:
Partitions
are 5/8” thick, ceiling-high gypsum board mounted on 2-1/2" metal studs.
Partitions will be furnished with 4" resilient base moldings.
DOORS,
FRAMES AND HARDWARE:
Doors
are
full height 3' X 6’8” nominal, solid-core doors, including metal frames.
Hardware shall include door stops, latchsets and hinges on interior doors,
and
locksets, hinged door stops, and lever handles on corridor doors, (limited
to
one per tenant, or as required by building codes).
WALL
FINISHES:
All
wall
surfaces shall be covered with one primer coat and one 100% acrylic flat
coat.
CEILING:
Accessible
fire-rated acoustical system with 24" X 48" X 3/4" acoustical.
LIGHTING:
Fixtures
are 2' X 4' ; (4) tube recessed fluorescent lighting units and wall mounted
light switches.
ELECTRICAL
OUTLETS:
Wall
mounted, duplex electrical outlets (110 volt).
FLOOR
COVERING:
Building
Standard carpeting throughout premises.
AIR
CONDITIONING:
A
primary
heating ventilation and air conditioning system, supply air diffuser, return
air
grilles, decuting and thermostatic control throughout the premises.
GRAPHICS:
With
Landlord’s prior written approval, Tenant at Tenant’s expense, may install
exterior signage to be located on the designated sign band. Signing shall be
only of Building Standard approved letters and shall be located directly over
the Leased Premises front exterior demising wall. One line only of copy shall
be
permitted and the copy length shall not exceed 75% of the length of the Leased
Premises front exterior demising wall, or 75% of the distance between exterior
brick columns, whichever is less.
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C-1
EXHIBIT
"D"
RULES
AND REGULATIONS
The
following rules and regulations shall apply, where applicable, to the Property
and to each portion thereof:
1. Sidewalks,
doorways, vestibules, halls, stairways, elevator lobbies, and other similar
common areas of the Property may not be used for the storage of materials or
disposal of trash, obstructed by any tenant, or used by any tenant for any
purpose other than movement about the Property.
2.
Plumbing
fixtures may be used only for the purposes for which they are designed, and
no
sweeping, rubbish, rags or other unsuitable materials may be disposed in
them.
3.
Movement
in or out of the Building or Retail Center of furniture, office equipment,
or
any other bulky or heavy materials is restricted to hours reasonably designated
by Landlord. Landlord will determine the method and routing of the movement
of
such items to ensure the safety of persons and property, and Xxxxxxx will be
responsible for all associated costs and expenses. Written notice of intent
to
move such items must be given to Landlord at least twenty-four (24) hours before
the time of the move.
4.
All
deliveries (other than of small hand-carried parcels) must be made through
the
freight elevators. Passenger elevators are to be used only for the movement
of
persons. Delivery vehicles are permitted only in areas designated by Landlord
for deliveries to the Building or Retail Center. No carts or dollies are allowed
through the main entrances of the Building or Retail Center or on passenger
elevators without the prior written consent of Landlord.
5.
After-hours
removal of hand-carried items must be accompanied by an “Equipment Removal Form”
or “Property Pass” provided by Landlord or by a letter signed by an authorized
representative of a tenant on the tenant’s letterhead. Each tenant must give
landlord a list of persons authorized to sign the Equipment Removal Form or
Property Pass.
6.
Landlord
must approve the proposed weight and location of any safes and heavy furniture
and equipment, which must in all cases stand on supporting devices approved
by
Landlord in order to distribute the weight.
7.
Corridor
doors that lead to common areas of the Building and Retail Center (other than
doors opening into the elevator lobby on floors leased entirely to a tenant)
must be kept closed at all times.
8.
Each
tenant must cooperate with Landlord to keep its premises neat and clean. No
tenant may employ any person for the purpose of cleaning other than the Building
or Retail Center's cleaning and maintenance personnel.
9.
All
freight elevator lobbies are to be kept neat and clean. The disposal of trash
or
storage of materials in these areas is prohibited.
10.
No
birds,
fish, or other animals may be brought into or kept in, on, or about the Building
or Retail Center (except for seeing-eye dogs).
11.
Tenants
may not tamper with or attempt to adjust temperature control thermostats in
their premises. Landlord will adjust thermostats as required to maintain the
Building standard temperature. Each tenant must use reasonable efforts to keep
all window blinds down and tilted at a 45 degree angle toward the street to
help
maintain comfortable room temperatures and conserve energy.
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D-1
12.
Each
tenant will comply with all security procedures during business hours, after
hours, and on weekends. Landlord will give each tenant prior notice of the
security procedures.
13.
Tenants
must lock all office doors leading to corridors and turn out all lights at
the
close of their working day.
14.
All
requests for overtime air conditioning or heating must be submitted in writing
to Landlord by an authorized representative of the tenant. Each tenant must
give
Landlord a list of persons authorized to request overtime services. Any such
request must be made by 2:00 p.m. on the day desired for weekday requests,
by
2:00 p.m. Friday for weekend requests, and by 2:00 p.m. on the preceding
business day for holiday requests. Requests made after that time may result
in
an additional charge to such tenant, if acted upon by Landlord, but Landlord
will have no obligations to act on untimely requests.
15.
No
flammable or explosive fluids or materials may be kept or used within the
Property except in areas approved by Landlord, and each tenant must comply
with
all applicable building and fire codes.
16. No
machinery of any kind other than normal office equipment may be operated by
any
tenant in its premises without the prior written consent of
Landlord.
17.
Canvassing,
peddling, soliciting, and distribution of hand bills in the Property (except
for
activities within a tenant’s premises that involve on the tenant’s employees) is
prohibited. Tenants will notify Landlord if such activities occur.
18.
A
“Tenant
Contractor Entrance Authorization” form supplied by Landlord is required for the
following:
(a) Access
to
Building or Retail Center mechanical, telephone or electrical rooms (e.g.,
Southwestern Xxxx Telephone employees).
(b) After-hours
freight elevator use.
(c) After-hours
building access by tenant contractors. Tenants will be responsible for
contacting Landlord in advance for clearance of tenant contractors.
19.
Tenants
must refer all contractors, contractors’ representatives, and installation
technicians tendering any service to them to Landlord for Landlord’s
supervision, approval, and control before the performance of any contractual
services. This provision applies to all work performed in the Building or Retail
Center (other than work under contract for installation or maintenance of
security equipment or banking equipment), including but not limited to,
installations of telephones, telegraph equipment, electrical devices and
attachments, and any and all installations of every nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment, and any other portion
of
the Building or Retail Center.
20.
A
no
smoking policy is in effect in the Building and Retail Center. Smoking is
prohibited in all areas of the Building and Retail Center, including the Common
Areas, restrooms, lobbies, elevators and the Premises. Tenant agrees that Tenant
and Tenant’s employees, agents and invitees will not smoke in the Building or
Retail Center. Tenant acknowledges that there are existing tenants in the
Building and Retail Center that are not contractually prohibited from smoking
in
their lease premises as the present time. Where possible, Landlord will
incorporate this No Smoking Policy into all lease renewals and new leases from
and after the date of this Lease.
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D-2
21.
Each
tenant is responsible for removal of trash resulting from large deliveries
or
move-ins. Such trash must be removed from the Building, Retail Center and
Facilities may not be used for dumping. Each tenant is responsible for
compliance with this rule by its contractors. If trash is not promptly removed,
Landlord may cause it to be removed at the tenant’s sole cost plus a Building
standard charge to be determined by Landlord to cover Landlord’s administrative
costs.
22. Tenants
may not install, leave, or store equipment, supplies, furniture, or trash
outside their premises.
23.
Each
tenant must provide Landlord with names and telephone numbers of individuals
who
should be contacted in an emergency.
24.
Tenants
must comply with the Property’s life safety program established by Landlord,
including without limitation, fire drills, training programs, and fire warden
staffing procedures, and must use reasonable efforts to cause all tenant
employees, invitees, and guests to comply with such program.
25.
No
ice,
mineral or other water, towels, newspapers, or other products may be delivered
to any premises except by persons appointed or approved by Landlord in
writing.
26.
If
a
tenant requires telegraphic, telephonic, annunciator, or other communication
service, Landlord will direct the electricians where and how wires are to be
introduced and placed, and none may be introduced or placed except as Landlord
may approve. Electrical current may not be used for space heaters, cooking
or
heating devices or similar appliances without Landlord’s prior written
permission.
27.
Nothing
may be swept or thrown into corridors, halls, elevator shafts, or
stairways.
28
No
portion of any tenant’s premises may be used or occupied as sleeping or lodging
quarters, nor may personnel occupancy loads exceed limits reasonably established
by Landlord for the Building.
29.
All
communications to Landlord in connection with these rules may be addressed
to
Landlord’s property manager, and any approvals required of Landlord under these
rules may be obtained from or through Landlord’s property manager.
30.
Landlord
reserves the right to amend these Rules and Regulations and to make such other
and further reasonable Rules and Regulations as in its judgment may from time
to
time be needed and desirable.
31.
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Landlord
shall furnish Tenant the following keys/access
cards:
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a.)
One
(1)
access card for each contract parking space rented. Each card will provide
access to the parking garage and the building, unless Tenant requests otherwise.
(2) cards for building access only at no initial cost. Additional cards, for
building access only, or replacement of lost or damaged cards, will be provided
at a cost of $10.00 per card. Tenant will notify Landlord as soon as possible
should a card be lost or stolen, regardless of whether Tenant intends to
purchase a replacement.
b.)
Two
(2)
keys to each door entering Tenant’s leased area
c.) Two
(2)
keys to Tenant’s mailbox
If
there is a conflict between any other provision of the Lease and these Rules
and
Regulations, the other provisions of the Lease control.
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TENANT
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LANDLORD
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Argyle
2006
D-3
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TENANT
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LANDLORD
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D-
D-4
SCHEDULE
1
WORK
LETTER
Tenant
hereby leases Premises “as-is”.
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TENANT
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LANDLORD
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Argyle
2006
SCH.
1-1
SCHEDULE
2
PARKING
1. Tenant
is
authorized, at Tenant’s expense, to park vehicles within the garage located on
the Property (the "Garage") as follows:
(a)
0
vehicles
in the general parking area designated by Landlord in the Garage, and (b)
3
vehicles
in the reserved parking area designated by Landlord in the Garage.
Landlord
will issue a parking sticker and /or card for each vehicle of Tenant authorized
to be parked in the Garage, or Landlord will provide a reasonable alternate
means to identify authorized vehicles. Landlord may designate the area of the
Garage within which each authorized vehicle may be parked, and Landlord may
change such designations from time to time.
2.
As
part
of each monthly Base Rental installment payable under this Lease, Tenant must
pay Landlord a “Monthly Parking Charge” equal to the sum of (a) $38.00
per
month (plus any applicable sales tax) for each reserved space, 7 am - 5 pm,
Monday through Friday in the reserved parking area of the Garage, plus (b)
$n/a
per
month (plus any applicable sales tax) for each space available in the general
parking area of the Garage.
3.
If
parking in the Garage cannot be provided for the full number of vehicles
authorized in this Schedule owing to fire or other casualty, condemnation or
sale in lieu thereof, or any other cause beyond the reasonable control of
Landlord, this Lease will continue without abatement of Rental, and Landlord
will use reasonable efforts to make available to Tenant replacement unassigned
surface or garage parking spaces within a reasonable distance from the Property,
as determined by Landlord, until the full number of vehicles authorized in
this
Schedule can again be parked in the Garage. The replacement parking spaces
will
be provided to Tenant without change in the Monthly Parking Charge.
4.
Landlord
or the operator of the Garage may make, modify, and enforce reasonable rules
relating to the parking of vehicles in the Garage. Tenant must abide by such
rules and exercise reasonable efforts to cause its employees, agents,
contractors, customers, and visitors to abide by such rules.
5.
Landlord
may alter the size of the Garage, restripe parking spaces in the Garage, and
designate or assign parking spaces in the Garage or elsewhere on the Property
for visitor parking, reserved parking, or other purposes.
INITIAL
HERE
TENANT
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INITIAL
HERE
LANDLORD
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Argyle
2006
SCH.
2-1