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EXHIBIT 10.1
STANDARD LEASE
1. PARTIES
1.1 This Lease is entered into between INTERPARK XXXX LIMITED
PARTNERSHIP, "LANDLORD", and LIFEQUEST MEDICAL, INC.,"Tenant".
2. PREMISES
2.1 Landlord Leases to Tenant and Tenant Leases from Landlord the
following premises (hereinafter sometimes called "the premises", the "demised
premises", or the "leased premises"), situated in the City of San Antonio,
County of Bexar, State of Texas, such premises being part of INTERPARK II
BUSINESS CENTER, BUILDING 13 hereinafter referred to as "the Project" (see
Exhibit "C" attached hereto for further description); with the following legal
description:
approximately 17,010 square feet as more particularly shown as the
hatched area on Exhibit "C" attached hereto, of office/warehouse space
with an address of 12961 Park Central, Suite 1300, in a 30,900 square
foot facility in Interpark II Business Center, said project consisting
of two (2) buildings totaling 79,000 square feet situated on Xxx 00,
Xxxxx 0, XXX 00000, AmberJack Distribution Center Subdivision, in the
City of San Antonio, Bexar County, Texas.
Landlord also grants to Tenant the non-exclusive right to use the designated
parking areas, common service drives, and rail spur (if any) appurtenant to
the Leased premises and any other common areas associated with the Project.
3. TERM
3.1 The term of this Lease shall be for a period of SIXTY (60)
MONTHS with a commencement date of the 1st day of June, 1997, and a termination
date of the 31st day of May, 2002. Tenant may occupy the premises on the 15th
day of May 1997, (hereinafter known as "Precommencement Date") under all of the
same terms and conditions of this Lease as if the Lease had commenced. The
total rent for the partial month shall be prorated based upon the number of
days occupied within the month and shall be paid at occupancy.
4. BASE RENT
4.1 The Base Rent referenced in this Lease shall be TEN THOUSAND
FIVE HUNDRED FORTY-SIX DOLLARS ($10,546.00 per month) commending 5/15/97.
5. PERMITTED USE
5.1 The permitted use for the Leased premises (hereinafter
referred to as "permitted use") shall be office and storage, manufacture,
repairing and assembling of medical equipment and related supplies.
6. SECURITY DEPOSIT
6.1 The security deposit referenced in this Lease shall be
SEE PAGE 1a DOLLARS ($ ).
7. NOTICE
7.1 All notices or demands of any kind required to be given by
Landlord or Tenant hereunder shall be in writing and shall be deemed delivered
forty-eight (48) hours after depositing the notice or demand in the United
States mail, certified or registered, postage prepaid at the following
addresses, or such other address as shall be designated by either party in
compliance with the provisions of this paragraph, or to such other address as
shall have been last designated by notice in writing from one party to the
other, to wit:
LANDLORD: TENANT:
AEQUUS PROPERTY MANAGEMENT COMPANY LIFEQUEST MEDICAL, INC.
0000 X.X. Xxxx 410 00000 Xxxx Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000 Xxx Xxxxxxx, XX 00000
with a copy to: with a copy to:
Fulbright & Xxxxxxxx LLP
000 Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
8. DEFINITIONS
8.1 "Base Real Property Taxes" for purposes of Paragraph 15.2 are
real property taxes applicable to the Project and shall be $1.00 per square
foot per Year.
8.2 "Base Insurance" for purposes of Paragraph 15.3 shall be $0.07
per square foot per year
9. ADDITIONAL PARAGRAPHS
9.1 Paragraphs 9.2-9.17 on pages, 1a, 1b, 1c and exhibits A, B, C,
D, E attached hereto have been added prior to the execution hereof and by this
reference are deemed a part of this Lease.
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9.2 ADDENDUM TO PARAGRAPH 6.1 - SECURITY DEPOSIT
Landlord has accepted an Irrevocable Letter of Credit in the amount of
ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00) in a form
acceptable to Landlord as the security deposit required under Paragraphs 6.1
and 12.1 for the first twenty-four (24) months of the primary Lease term. Prior
to end of the twenty-third (23rd) month of the primary Lease term, Tenant shall
deposit with Landlord the amount of TEN THOUSAND FIVE HUNDRED FORTY-SIX AND
NO/100 DOLLARS ($10,546.00) as the security deposit required under Paragraphs
6.1 and 12.1 for the remainder of the Lease term. Failure to deposit this
$10,546.00 prior to the end of the 23rd month of the primary Lease term shall
constitute a default under the terms of this Lease.
9.3 ADDENDUM TO PARAGRAPH 10.2(d) - ADJUSTMENTS
Add the following at the end of the first sentence of this paragraph
after "... Landlord's work": "as reasonably determined by Landlord and Tenant
and the premises are ready for Tenant to immediately occupy and open for
business."
9.4 ADDENDUM TO PARAGRAPH 13.1-THE LEASED PREMISES
Tenant shall have the non-exclusive right to thirty-five (35) parking
spaces on the front of Building 13 and the exclusive right to from five (5) to
eight (8) reserved canopy parking spaces in the rear of Building 13 as shown on
Exhibit "D". Such canopy parking spaces and the area labeled #148 (construction
of compressor) on Exhibit "D" are subject to final approval of the
Architectural Committee overseeing the Property.
9.5 ADDENDUM TO PARAGRAPH 14.2 UTILITIES - PAYMENT
The existing paragraph 14.2 shall be deleted in its entirety and shall
be replaced with the following:
"14.2 PAYMENT. Tenant shall pay, prior to delinquency, for all gas,
heat, electricity, telephone, air conditioning and ventilating, janitorial and
other materials and services which are used by Tenant during the term of this
Lease. Common meter water and sewer shall be apportioned pro rata among Tenants
on the basis of square footage of leased areas. It is the intention of the
parties hereto that such apportionment of common meter water and sewer charges
equitably represent each Tenant's usage of such utilities. In the event of
disproportionate use of common meter water and sewer services by Tenant or any
other Tenant, Landlord shall allocate the cost of the same among such Tenants
in an equitable manner. In the event that Tenant occupies the premises prior to
the effective transfer of utility service charges to Tenant's own name, then
Tenant agrees to reimburse Landlord for Tenant's pro rata share of common meter
gas and electrical service charges, such share to be based upon the square
footage of Leased areas of the Tenants being served by such common meter."
9.6 ADDENDUM TO PARAGRAPH 15.2 - REAL PROPERTY TAX
Following is a sample calculation of the allocated tax:
1) Total Real Property Tax Xxxx for Base Year x 44.67% = Base Year
Allocated Tax (BYAT)
2) Total Real Property Tax Xxxx for Next Year x 44.67% = Next Year
Allocated Tax (NYAT)
3) NYAT - BYAT x (Tenant's Square Footage/Square Feet of Project) =
Tenant's Share of Allocated Tax
9.7 ADDENDUM TO PARAGRAPH 16.2 - TENANT'S DUTIES
Add the following at the end of Paragraph 16.2: "Notwithstanding any
other provisions herein to the contrary, Tenant's responsibilities under this
Paragraph 16.2 do not include (i) any responsibilities in Paragraph 16.1 or
(ii) any costs or expenses that are included in the Common Area Services costs
under Paragraph 15.4 above."
9.8 ADDENDUM TO PARAGRAPH 16.5 - CONDITION AT END OF TERM
The first sentence of Paragraph 16.5 shall be amended to read as
follows: "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, repairs and/or restorations that are Landlord's
responsibility hereunder and damage by earthquake, act of God, or the elements
alone or any casualty not covered by the insurance required to be carried by
Tenant under Paragraph 22.2 below excepted."
9.9 ADDENDUM TO PARAGRAPH 20.1-ASSIGNMENT AND SUBLETTING
Add the following at the end of Paragraph 20.1: "Notwithstanding the
foregoing to the contrary, Tenant may assign this Lease or sublet the premises
in connection with the merger of Tenant with another entity, the purchase and
sale of all or substantially all of the assets of Tenant or the reorganization
of Tenant with others, provided that any sole surviving entity is of equal or
greater creditworthiness as Tenant."
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9.10 ADDENDUM TO PARAGRAPH 22.2 - FIRE INSURANCE
Delete the existing Paragraph 22.2 in its entirety and replace it with
the following:
"22.2 FIRE INSURANCE. Landlord shall take out and keep in force during
the term of this Lease, at Landlord's expense, fire and extended coverage
insurance with an "all risk" or "special form" endorsement covering all of the
buildings in the project which contains the premises as shown on Exhibit "C"
attached hereto to the extent of 100% of their full replacement cost. The term
"full replacement cost" shall mean the cost of replacing the buildings in the
Project which contains the premises as shown on Exhibit "C" attached hereto,
exclusive of the cost of excavations, foundations and footings. The proceeds
shall be applied by Landlord pursuant to the provisions of Paragraph 27. Tenant
will carry, at Tenant's own expense, adequate insurance on all of Tenant's
property located in, about or on the premises."
9.11 ADDENDUM TO PARAGRAPH 24.1 - LANDLORD'S LIEN
The existing paragraph is hereby deleted in its entirety and shall be
replaced with the following:
"24.1 WAIVER OF LANDLORD'S LIENS. Landlord hereby waives any and all
of its liens upon and security interests in any and all of Tenant's property
now or hereafter placed in or upon the premises by Tenant."
9.12 ADDENDA TO PARAGRAPH 28.1- HAZARDOUS SUBSTANCES
The second line of Paragraph 28.1(c) shall be amended to read as
follows: ". . .environmental condition on, about, or under the premises caused
by Tenant, Tenant's employees, agents or contractors and required as a result
of Tenant's use or occupancy of the premises;".
Paragraph 28.1(d) shall be amended to read as follows: "To keep the
premises free of any lien imposed pursuant to any Environmental Laws resulting
from actions of Tenant, Tenant's employees, agents or contractors during the
term of this Lease;".
9.13 ADDENDUM TO PARAGRAPH 31.1- SUBORDINATION
Add the following sentence at the beginning of paragraph 31.1:
"Landlord hereby represents and warrants to Tenant that, as of the date of
execution of, this Lease, there is no mortgage in existence which affects the
real property of which the premises constitutes a portion."
9.14 ADDENDA TO PARAGRAPH 34 - MISCELLANEOUS
34.12 BROKERAGE. Tenant warrants that it has had no dealings with
any broker or agents other than Xxxxxxx Interests, Inc., and Aequus Property
Management Company in connection with this Lease and covenants to pay, hold
harmless and indemnify Landlord from and against any and all cost, expense or
liability for any compensation, commissions, charges claimed by any other
broker or agent with respect to this Lease or negotiation thereof. Landlord
warrants that it has had no dealings with any broker or agents other than
Aequus Property Management Company in connection with this Lease and covenants
to pay, hold harmless and indemnify Tenant from and against any and all cost,
expense or liability for any compensation, commissions, charges claimed by any
broker or agent with respect to this Lease or negotiation thereof.
34.13 AUTHORIZATION TO EXECUTE. If Tenant or Landlord is a
corporation or if Tenant or Landlord is a partnership on whose behalf a partner
which is a corporation executes this Lease, then in either of such cases each
individual executing this Lease on behalf of such corporation represents and
warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of said corporation and partnership, as the case may be, in accordance
with a duly adopted resolution of the Board of Directors of such corporation.
If a corporation acting as the manager for the Landlord executes this Lease on
behalf of Landlord, such corporation represents and warrants that it is duly
authorized by Landlord to execute and deliver this Lease on behalf of the
Landlord and each individual executing this Lease on behalf of such corporation
represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said corporation in accordance with a duly
adopted resolution of the Board of Directors of such corporation.
9.15 IMPROVEMENTS TO PREMISES
Landlord will grant an allowance of up to $150,000.00 for the
construction of Tenant improvements as shown on Exhibit "D" to be made by
Landlord or Landlord's authorized contractor. All costs of construction,
including, but not limited to, heating, ventilating and air conditioning
systems and hookup, ceilings, restrooms and plumbing, cabinetry and fixtures,
electrical distribution and hookup, interior wall construction, canopy parking,
demising walls, personnel doors, floor finishes, permits and construction
drawings will be applied by Landlord against this allowance. In the event the
total cost of said Tenant improvements should exceed $150,000.00, then Tenant
agrees to pay to Landlord the amount by which the cost of such improvements
exceeds such allowance prior to Landlord's commencing work on such excess
improvements. Furthermore, prior to the termination of this Lease, Tenant will,
at Tenant's sole cost and expense, remove all canopy parking, compressors,
cinder block walls and ceiling around compressor area #148, rooms 134-137, and
rooms 141-144 as shown on Exhibit "D". Such removal shall be made in a good and
workmanlike manner and the premises restored in these areas to their original
condition, wear and tear and casualty damage excepted.
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9.16 OPTION TO RENEW
So long as Tenant is not in default under the terms of this Lease,
Tenant shall have the option to renew this Primary Lease for a period of five
(5) years, such renewal term to begin upon the expiration of the original term
of this Lease, and all of the terms, covenants and provisions of this Lease
shall apply to such extended term, except that the monthly rental payable shall
be increased to a rate to be negotiated by the parties at the time said option
is exercised. In the event that the parties to this Lease Agreement are unable
to agree upon a rental rate for such extended term within ninety (90) days
prior to the primary term expiration, then all of Landlord's obligations
hereunder shall terminate upon the expiration of the original term of this
Lease. If Tenant should elect to exercise its option, it shall do so by written
notice given to Landlord no later than one hundred twenty (120) days prior to
the expiration of the term of this Lease. The base lease year of such renewal
term shall be that of the original term for the purposes of determining ad
valorem tax and insurance escalations under Section 15 of this Lease.
9.17 RIGHT OF FIRST REFUSAL
So long as Tenant is not in default under the terms of this Lease,
Tenant shall have the continuing right of first refusal, during the primary
term of this Lease only, to Lease the adjacent 2,910 square feet of
office/warehouse space described as "Option Space" on Exhibit "C" attached
hereto, such space to be Leased in an "as-is" condition under the same terms,
covenants and provisions of this Lease, except that the monthly rental payable
shall be the rate to be the "as-is" rate negotiated by Landlord and Tenant. In
the event that Landlord proposes to Lease to a third party a part of or all of
the Option Space during Tenant's primary Lease term, Landlord shall give Tenant
written notice of such prospect, then Tenant shall have five (5) business days
after receipt of amendment from Landlord in which to execute such amendment
modifying the terms and conditions of this original Lease to reflect the
increased total square footage and the increased total rental. In the event
Tenant and Landlord are unable to reach an agreement and execute an amendment
in five (5) business days, this Right of First Refusal is null and void.
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10. OCCUPANCY OF THE PREMISES
10.1 Acceptance of the Premises. Tenant acknowledges that it has
fully inspected the demised premises and that Tenant is not aware of any
defects in the premises and common areas surrounding the premises that are
vital to the use of the premises for their intended commercial purpose as
defined in Paragraphs 5.1 and 13.1, subject only to the completion of
Landlord's work (Exhibit "D" hereto), hereinafter referred to as "Landlord's
work". Tenant shall pay for the cost of the Certificate of Occupancy and any
required inspection related to Tenant's occupancy of the premises.
10.2 Adjustments.
(a) In the event that construction of the premises is not
completed at the date of the execution of this Lease, Landlord agrees to use
reasonable best efforts to complete Landlord's work on or before the earlier of
the precommencement date or the commencement date as specified above. Tenant
hereby accepts exhibit "D" as the final and complete description of Landlord's
work and Tenant further acknowledges that any changes in the plans which are
subsequently requested by Tenant or required, by virtue of Tenant's occupancy
or use of the premises in order to secure a Certificate of Occupancy, will be
made at Tenant's expense.
(b) In the event Landlord is unable to complete Landlord's work or
make the premises available on the first day of a month, the initial term of
this Lease shall commence on the first full day of the month following the
occupancy of the premises (hereinafter known as the "adjusted commencement
date"). The length of the Lease shall be the same as that which is identified
in Paragraph 3.1.
(c) If the premises are occupied prior to the adjusted
commencement date, then the partial month of occupancy shall be on a pro rated
basis under all of the same terms and conditions of this Lease as if the Lease
had commenced; however, the term shall not decrease the length of the Lease as
defined in paragraph 3.1.
(d) The premises shall be deemed "ready for occupancy" on the date
that Landlord has substantially completed all of Landlord's work (see page 1a).
In the event of any delay in the completion of Landlord's work, Landlord shall
not be liable for any damage caused thereby, however, if such completion is
delayed for more than ninety (90) days beyond the commencement date identified
in Paragraph 3.1, then either Tenant or Landlord may declare this Lease to be
null and void.
(e) The parties agree that in the event the commencement date or
termination date is different from that stipulated in Paragraph 3.1, the
parties shall execute a written stipulation acknowledging the revised
commencement date and termination date (hereinafter known as "term dates"). If
Landlord has not received the agreement executed by Tenant within thirty (30)
days after Landlord has notified Tenant of the adjusted term dates in writing,
then for all purposes of this Lease the term dates shall be deemed adjusted as
specified by Landlord in the notification agreement.
10.3 OCCUPANCY PRIOR TO COMPLETION OF LANDLORD'S WORK. In the
event that Tenant takes occupancy prior to the completion of Landlord's work,
Landlord shall not be relieved of its duty to timely complete its work. Tenant
shall provide uninterrupted access to Landlord, its subcontractors, employees,
agents or representatives, and any and all inspectors from any governmental
authority or agency, between the hours of 7:30 a.m. and 5:00 p.m. Monday
through Friday of each week, until a Certificate of Occupancy has been issued
by the City of San Antonio and Landlord's work is complete.
11. RENT
11.1 Tenant, throughout the term of this Lease, and without prior
notice or demand, shall pay to Landlord, in advance, at the address set out
after the signature of Landlord or at such place or places as Landlord may from
time to time direct, Base Rent on the first day of each month in lawful money
of the United States of America. In the event the Tenant occupies the premises
prior to the commencement date or the adjusted commencement date, the prorated
Rent shall be paid on the first day of occupancy. Base Rent 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. The covenant of
Tenant to pay rent hereunder is and shall be deemed a separate and individual
covenant, and Tenant shall have no right to deduction or setoff whatsoever. In
the event Tenant shall fail to pay the rent within five (5) days after the date
that such installment is due hereunder, Tenant shall be liable for and Landlord
may collect a late charge of five percent (5%) of any monthly installment of
rent or other sums due hereunder, such charge to be in addition to and not in
lieu of any other remedy of Landlord hereunder. All monies received from Tenant
shall be credited first to non-rent items and last to rent regardless of
notations on checks. Any notation on any payment received by Landlord
purporting to effect an accord and satisfaction shall be completely void unless
specifically agreed to in writing by Landlord after receipt of such payment.
12. SECURITY DEPOSIT
12.1 Tenant has deposited with Landlord the security deposit as
security for the full performance of all the provisions of this Lease and shall
not be considered as the last rental payment due under the 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 rent or any other sum due Landlord as additional rent,
Landlord may apply all or a part of the security deposit for such payment after
the expiration of the applicable notice and cure period described in Paragraph
23 hereof. Should Landlord be required to use all or a part of the security
deposit, Tenant, upon demand from Landlord, shall immediately replenish the
funds so expended to maintain the security deposit at the amount stated
hereinabove. Landlord may also apply all or a part of the deposit to clean or
repair damages to the Leased premises. If Tenant is not in default at the
termination of the Lease, Landlord shall return the remaining deposit to Tenant
within forty (40) days after the termination of the Lease. Landlord shall not
be required to keep this security deposit separate from its general funds, and
Tenant shall not be entitled to interest on such deposit.
13. USE
13.1 THE LEASED PREMISES. The Leased premises may be used and
occupied only for the permitted use identified in paragraph 5.1 and for no
other purpose or purposes without Landlord's prior written consent. Tenant
shall promptly comply with all governmental laws, ordinances, orders and
regulations and reasonable Landlord's rules which are described in Paragraph
34.11 and Exhibit "A" affecting the Leased premises and their cleanliness,
safety, occupation and use. Tenant, Tenant's employees and invited guests will
not perform any act or carry on any practices that may injure the building or
disturb the rights, comforts or conveniences of persons at adjoining premises.
Tenant may not store any trash, equipment, vehicles or merchandise on any
outside parking areas or loading areas, except in areas specifically designated
and approved in writing by Landlord for such purposes. Landlord will provide
sanitary receptacles for any and all trash,
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rubbish or discarded merchandise. Such receptacles will be emptied as required
to maintain the premises in a clean and sanitary fashion. All such expenses of
trash storage and removal will be borne by Tenant. Vehicles owned or operated
by or for Tenant, Tenant's employees, agents or invitees may be parked only in
those areas designated by Landlord immediately in front of or behind the
premises. SEE PAGE 1a.
13.2 INSURANCE. No use shall be made or permitted to be made of the
premises by Tenant or acts done by Tenant which solely increase the cost of
Landlord's insurance as provided for in paragraph 22.2 of this Lease or which
solely increase the cost of insurance as carried by any other Tenant of the
Project. 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 costs, 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 or act within the premises which will cause the
cancellation of any insurance policy concerning the premises or the contents
thereof and agrees to indemnify Landlord against all claims or actions for loss
which result from any such act of cancellation.
13.3 FIRE PROTECTION SYSTEM. Deleted
13.4 COMBUSTIBLE MATERIAL. Tenant shall not use the premises for
storage of polystyrene trays or any other highly flammable/combustible
materials or of any other material which is prohibited by Landlord's insurance
carrier except materials as specified on Exhibit "E".
14. UTILITIES
14.1 RESPONSIBILITY. Landlord's responsibility with respect to
natural gas and electrical utility services hereunder shall be limited to the
connection of service lines and meters to the premises as required to service
the premises. Tenant shall have the entire responsibility to contract for and
maintain gas and electrical utility services through such service lines and
Tenant shall not in any event be relieved of any of Tenant's obligations under
this Lease by reason of Tenant's failure or inability to contract for or
maintain any such service.
14.2 PAYMENT. SEE PAGE 1a.
15. ADDITIONAL EXPENSES
15.1 Tenant shall also be obligated to pay to Landlord, as
additional expenses hereunder, Tenant's pro rata share of additional taxes,
additional insurance and Common Area Services costs, such share being the
percentage that the square foot area of the premises bears to the total square
foot area of the building(s) comprising the project.
15.2 REAL PROPERTY TAX.
(a) Landlord shall pay the "Base Real Property Taxes" on the
Project during the Lease term.
(b) Tenant shall pay Landlord the amount, if any, by which the
Real Property Taxes during each calendar year of the Lease term exceeds the
Base Real Property Taxes (hereinafter known as "Additional Taxes").
(c) The Project consists of two unique property types (hereinafter
known as "property types") which have different property values relative to the
overall valuation of the total Project. If the total Project is not separately
assessed among the different property types within the total Project, then
Landlord shall allocate the total Real Property Tax among the two property
types based upon the following percentages hereinafter known as "allocated
tax"):
44.67% of the total real property tax xxxx shall be allocated to
suites located in buildings 1300; 55.33% of the total real property
tax xxxx shall be allocated to suites located in building 1400. SEE
SAMPLE "ALLOCATED TAX" ON PAGE 1a.
Once the total Real Property Tax is allocated to the property type,
then Tenant's share of the allocated tax shall bear the same relationship to
the Additional Taxes as the square footage of the Leased premises bears to the
total square footage of the buildings comprising the property type.
(d) "Real property tax" as used herein shall be deemed to mean
property tax consulting and attorneys' fees and taxes and assessments
(including but not limited to real property taxes and assessments or taxes and
assessments imposed in lieu thereof), licenses and levies of every kind or
character, whether general, special, ordinary or extraordinary, which may
lawfully taxed, charged, levied or imposed by the municipality or other
governmental authority (state, local or federal, upon or against the premises,
the leasehold estate created, or which may arise out of the use and operation
by Tenant of the premises, or which may be imposed against the project as a
whole. Notwithstanding any other provision contained herein, real property tax
does not include Landlord's federal or state income, franchise, business
activity, inheritance or estate taxes.
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15.3 INSURANCE.
(a) Landlord shall pay the "Base Insurance" on the Project during
the Lease term.
(b) Tenant shall pay Landlord the amount, if any, by which
Insurance costs during each year of the Lease term exceeds the Base Insurance
(hereinafter known as "Additional Insurance").
(c) If the Project is not separately assessed for real estate tax
purposes, Tenant's share of the Base Insurance payable by Tenant shall bear the
same relationship to the Additional Insurance as the square footage of the
Leased premises bears to the total square footage of the building(s) comprising
the Project.
(d) "Insurance" as used herein shall include Landlord's insurance
as provided for in Paragraphs 22.1 and 22.2 hereof.
15.4 COMMON AREA SERVICES. "Common Area Services" costs shall
include without limitation the cost of electricity, water/sewer, gas, trash
removal, fire sprinkler inspections and maintenance, exterior painting, water
blasting, interior termite control and exterior pest control, window washing,
HVAC filter replacements, landscaping, lawn sprinkler repairs and maintenance,
parking lot, service area and appurtenant street cleaning, repair, repaving and
striping, replacement and maintenance of exterior lighting fixtures and bulbs;
courtesy patrol (if offered); property management fees paid by Landlord,
including an allocation of such manager's property manager, maintenance
technician and other personnel costs; Amortized Repairs, and maintenance costs
other than those associated with Landlord's duties as defined in paragraph
16.1. Amortized Repairs are those repairs not specified in Paragraph 16.1
herein which are made to the project and in Landlord's option should be
reasonably billed to the Tenants over a multi-year period, which period shall
be determined by Landlord in Landlord's sole opinion. Landlord and Tenant
expressly agree that all services to be performed by Landlord including
maintenance, repairs and property management of the premises and the common
area surrounding the premises exclusively involve the exercise of professional
judgment by Landlord and Landlord's agents, and Tenant expressly waives any
claims for breach of warranty arising from the performance of such services.
15.5 PAYMENT OF ADDITIONAL EXPENSES. For each month during the
Term, Tenant shall pay one-twelfth (1/12th) of its proportionate share of the
estimated annual amount of Additional Expenses at the same time and same place
as the payment of Base Rent for each month. The amount of the annual real
property tax, insurance and common area maintenance estimates shall be
reasonably determined by Landlord, such estimates to be subject to adjustment
not more than two (2) times in any twelve (12) month period upon written notice
to Tenant. If, upon determination of the Additional Expenses pursuant to
paragraphs 15.2(b), 15.3(b) and the actual Common Area services per Paragraph
15.4, the sum of the additional amounts for taxes, insurance and the actual
amount for Common Area services differs from the total estimated monthly
payments which Tenant has paid to Landlord, a cash adjustment shall be made
between Landlord and Tenant within thirty (30) days after request by either
party.
15.6 PERSONAL PROPERTY. Tenant shall pay before delinquency any and
all taxes, assessments, licenses, fees and public charges lawfully 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 Leased premises.
15.7 RECORDS. Landlord, for a period of ninety (90) days after its
demand for payment, shall make available to Tenant during reasonable business
hours after reasonable notice, for inspection and copying, all records of
Landlord relating to the Real Property Taxes, insurance payments and Common
Area Services made by Tenant.
16. MAINTENANCE AND REPAIRS
16.1 LANDLORD'S DUTIES. Landlord, at its sole cost and expense,
shall maintain in a good state of repair the exterior of the roof and exterior
walls (excluding glass windows and doors) and all structural portions of the
roof, exterior walls (excluding glass windows and doors), floors and foundations
of the premises, except for any repairs caused by the negligent acts or
omissions of Tenant, Tenant's agents, employees or invitees. Landlord shall
maintain heating and air conditioning systems within the Leased premises for
the first year of this Lease term only. The preceding are the sole expenses
paid by Landlord and all other expenses of the Project shall be paid directly
by Tenant or reimbursed pursuant to Paragraph 15.4.
16.2 TENANT'S DUTIES. Tenant, at its sole cost and expense shall
provide interior pest extermination services and shall maintain in a clean and
sanitary condition and in a good state of repair all other portions of the
premises, including, but in no way limited to, all plumbing, wiring, glazing,
interior and exterior windows, interior and exterior doors, floors, ceilings,
interior walls and the interior surface of exterior walls, all fixtures, fire
protection systems, equipment and signs, except for repairs caused by the
negligent acts or omissions of Landlord and its agents. Tenant shall assume the
responsibility for repair and replacement of heating and air conditioning
systems after the first year of the primary Lease term. Before the end of the
first year of the primary term of this Lease, Tenant shall provide Landlord
with evidence satisfactory to Landlord that Tenant has entered into a
preventive maintenance contract for customary and routine preventive
maintenance of all air conditioning and heating systems within the premises. If
Landlord is not provided evidence of Tenant's entering into a service contract
which is reasonably satisfactory to Landlord within thirty (30) days of
Landlord's request, Landlord may incur such expense and Tenant shall pay for
same within ten (10) days of written request. SEE PAGE 1a.
16.3 PARKING LOT DAMAGE. Tenant shall not be permitted to dump or
drain any garbage, waste water, refuse, liquids or any other materials directly
onto the parking lot surface within the project without the prior written
consent of Landlord. Tenant shall also be responsible for any damage to the
parking lot caused by vehicles and equipment utilized in connection with
Tenant's use of the Leased premises.
16.4 FAILURE TO PERFORM. In the event Tenant fails to maintain the
premises pursuant to the above provisions, Landlord shall give Tenant notice to
do such acts as are reasonably required to so maintain the premises. In the
event Tenant fails to promptly commence such work and diligently pursue it to
completion, then Landlord shall have the right to do such acts and expend such
funds at the expense of Tenant as are reasonably required to perform such work.
Any amount so expended by Landlord shall be paid by Tenant promptly after
demand or deducted by Landlord from Tenant's security deposit. Landlord shall
have no liability to Tenant for any damage, inconvenience or interference with
the use of the premises by Tenant as a result of performing any such work.
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16.5 CONDITION AT END OF TERM. SEE PAGE 1a. Specifically Tenant
will restore or replace any portion of the floor, door or wall surfaces within
the Leased premises which have been scratched, gouged, broken, or otherwise
marred by Tenant's operations within the premises except due to normal wear and
tear and agrees to reasonably clean such surfaces of dirt, grease, paint, tire
marks or other discoloration prior to surrendering the premises to Landlord
upon the termination of this Lease. Tenant's duties hereunder shall include
the duty to clean the premises and to deliver the current keys to Landlord.
Failure to do so shall constitute a failure to perform under paragraph 16.4
above.
17. ALTERATIONS
17.1 Tenant shall not make or permit to be made any alterations or
changes in or additions to the exterior or structural interior of the premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant shall, unless otherwise specifically waived in
writing by Landlord (if not in default hereunder), prior to the expiration of
this Lease or any extension thereof, remove all trade fixtures, equipment and
improvements which Tenant has placed in the premises, and repair all damages to
the premises caused by such removal and restore the premises to their original
condition (the condition existing as of the earlier of the Lease Commencement
Date or the Precommencement Date) as provided in and subject to Paragraph 16.5
above.
18. LIENS
18.1 Tenant shall keep the premises, and any building of which the
premises are a part, free and clear of any liens arising out of work performed
or caused to be performed by Tenant and shall indemnify, hold harmless and
defend Landlord from any liens and encumbrances arising out of any work
performed or materials furnished by or at the direction of Tenant excluding any
work performed by Landlord. In the event any lien is filed, Tenant shall do
all acts necessary to discharge such lien within thirty (30) days after Tenant
receives actual notice of its filing; or, if Tenant desires to contest any
lien, then Tenant may also bond around lien or Tenant shall deposit with
Landlord such security as Landlord shall reasonably demand to ensure the
payment of the lien claim. In the event Tenant shall fail to pay any lien claim
when due or shall fail to deposit the security with Landlord, 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.
19. ENTRY
19.1 Landlord and its agents shall have the right during Tenant's
usual business hours with 24 hours notice of the time of inspection except in
emergencies to enter upon the premises for the purposes of inspection,
construction, serving or posting notices, showing to a prospective purchaser or
making any changes or alterations or repairs which Landlord shall deem
necessary for the protection, improvement or preservation of the premises or
the building of which the premises are a part, or for any lawful purpose. At
any time within ninety (90) days prior to the expiration of the term of the
Lease, Landlord may place thereon any usual or ordinary "For Lease" signs.
Landlord may also show the premises to prospective Tenants during the last 90
days of the Lease term with 24 hours notice prior to the time of the showing of
the premises.
20. ASSIGNMENT AND SUBLETTING
20.1 Tenant shall not assign, pledge or encumber this Lease, or
sublet the whole or any part of the premises without the prior written consent
of Landlord, which consent shall not be unreasonably withheld. 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. Tenant shall promptly remit to
Landlord all sums which Tenant receives as the result of any such subletting or
assignment in excess of the fixed rental payments to Landlord required
hereunder, whether or not such subletting or assignment is consented to by
Landlord. 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 the Landlord, terminate the Lease. 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. SEE PAGE 1a.
21. INDEMNIFICATION
21.1 Tenant's obligation. Tenant shall hold harmless, indemnify and
defend Landlord and Landlord's management company and their employees, agents,
owners, directors and officers against all claims, demands and actions for
loss, liability, damage, cost and expense (including attorneys' fees) resulting
from injury or death to any person and damage to property caused by the willful
act or negligence of Tenant, its agents or employees except for loss or damage
caused by the willful act or negligence of Landlord and/or Landlord's
management company, their employees and agents, while in, upon or connected in
any way with the premises or surrounding common areas during the term of this
Lease or any occupancy hereunder.
21.2 Landlord's obligation. Landlord shall hold harmless, indemnify
and defend Tenant, its employees, agents, owners, directors and officers
against all claims, demands and actions for loss, liability, damage, cost and
expense (including attorneys' fees) resulting from injury or death to any
person and damage to property caused by the willful act or negligence of
Landlord, its management company and their employees, agents, owners, directors,
and officers while in, upon or connected in any way with the Project including
the common areas during the term of this Lease or any occupancy hereunder.
22. INSURANCE COVERAGE
22.1 PUBLIC LIABILITY. Tenant shall take out and keep in force
during the term of this Lease, at Tenant's expense, comprehensive general
liability insurance protection in the limit of $1,000,000 for personal injury
and property damage liability protection per each occurrence and a general
annual aggregate of $1,000,000. Landlord shall be named as an additional
insured under Tenant's insurance policy. Landlord shall maintain comprehensive
general liability insurance protection with at least equivalent limits, at
Landlord's expense.
22.2 FIRE INSURANCE. SEE PAGE 1b.
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22.3 WAIVER OF SUBROGATION. Landlord and Tenant hereby release
each other and their officers, owners, directors, employees and agents from any
and all liability or responsibility to the other or anyone claiming through or
under them by way of subrogation or otherwise 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 hare 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 demised premises or its contents shall provide for a waiver of rights or
subrogation against Landlord and Tenant and their officers, owners, directors,
employees and agents on the part of the insurance carrier.
22.4 PROCEDURE. The policies required by Paragraphs 22.1 and 22.2
shall be with a Best's A+, Class X company. A certificate as to such
Tenant insurance shall be presented to Landlord upon demand, 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 therefor, and
Tenant shall promptly repay to Landlord the amount so paid after demand, as
Additional Rental.
23. DEFAULT BY TENANT
23.1 Tenant shall be deemed in default hereof in the event Tenant
should:
(a) Default in the prompt payment of rent or any additional
expenses when the same is due and continue in such default for ten (10) days
after receipt of written notice to be given not more than twice in a calendar
year; or
(b) Remain in violation of any other of the covenants to be
performed by Tenant hereunder after the expiration of thirty (30) days
following the receipt of written notice of such violation so long as Tenant
commences to cure the default within the 30-day period and diligently proceeds
to cure same thereafter; or
(c) 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
(d) Abandon all of the premises.
Upon default, (i) all rental payments and other estimated Landlord
charges due pursuant to the current term of this Lease shall become immediately
due and payable without additional notice or demand; and (ii) Landlord may alter
any and all locks and other security devices denying access to the Leased
premises without notice; or (iii) either cancel this Lease or relet the premises
as agent for Tenant or otherwise and receive the rent therefor, applying the
same first to the payment of such expenses hereunder, the balance, if any, to be
paid to Tenant, who shall remain liable for any deficiency. Upon the reentering
of said premises, Landlord may remove all or any part of the personal property
of Tenant remaining on the premises and store the same at Tenant's expense.
24. LANDLORD'S LIEN - SEE PAGE 1b.
25. BANKRUPTCY OF TENANT
25.1 If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, 11 U.S.C. paragraph 101 et seq., any and
all funds payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
funds or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and be promptly paid or delivered to Landlord. Any
person or entity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code shall be deemed without further act or deed to have assumed
all of the obligations arising under this Lease on and after the date of such
assignment. Any such assignee shall upon demand execute and deliver to Landlord
an instrument confirming such assumption.
26. COST OF SUIT
26.1 WAIVER OF JURY TRIAL. If legal action shall be brought by
either party because of the breach of any term or provision hereof, then the
prevailing party shall be entitled to recover costs of suit, reasonable
attorney's fees, administrative expenses and collection costs incurred in the
action. Landlord and Tenant hereby irrevocably waive any right to trial by jury
in any lawsuit, proceeding or counterclaim brought by either party against the
other on any matter arising out of or connected with this Lease.
27. DAMAGE TO PREMISES BY FIRE OR OTHER CASUALTY
27.1 RESTORATION OF THE PREMISES. In the event that the Leased
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
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 Total Rent 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 must restore the premises to substantially the same
condition as immediately prior to the casualty except that Landlord's
obligation to restore the premises shall be limited to the scope of
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Landlord's original work and to the amount of insurance proceeds actually
received, and Tenant shall be entirely responsible for the restoration of
improvements by Tenant or Tenant's personal property. In the event that the
Leased premises cannot be restored within one hundred twenty (120) days of such
damage, then either Landlord or Tenant may cancel this Lease effective upon
written notice of such cancellation given to the other party.
27.2 NO RESTORATION. Notwithstanding anything contained hereinabove
to the contrary, in the event that any mortgagee of the premises refuses to
make the proceeds of Landlord's insurance immediately available to Landlord for
the restoration of the premises, or in the event that the cost of such
restoration is estimated to exceed eighty percent (80%) of the replacement cost
of the entire premises, 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 forty-five (45) days of the date of the damage, in which event Tenant
may terminate the Lease effective upon the date of destruction and receive a
refund of any rents paid for the period of time after the destruction.
28. HAZARDOUS SUBSTANCES
28.1 Tenant shall not cause or permit the release, discharge, or
disposal nor the presence, use, transportation, generation, or storage of any
Hazardous Material (as hereafter defined) in, on, under, about, to, or from the
Premises by either Tenant, Tenant's employees, agents, contractors, or invitees
(collectively the "Tenant") other than the use of such materials in de minimum
quantities reasonably necessitated by the Tenant's regular business activities.
Tenant further agrees and covenants to Landlord, its agents,
employees, affiliates and shareholders (collectively the "Landlord") the
following:
a. To comply with all Environmental Laws in effect, or may come
into effect, applicable to the Tenant or Tenant's use and
occupancy of the premises;
b. To immediately notify Landlord, in writing, of any existing,
pending or threatened (1) investigation, inquiry, claim or
action by any governmental authority in connection with any
Environmental Laws; (2) third party claims (3) regulatory
actions; and/or (4) contamination of the premises;
c. Tenant shall, at Tenant's expense, investigate, monitor,
remediate, and/or clean up any Hazardous Material or other
environmental condition on, about, or under the premises
required as a result of Tenant's use or occupancy of the
premises; SEE PAGE 1b
d. To keep the premises free of any lien imposed pursuant to any
Environmental Laws; SEE PAGE 1b; and
e. To indemnify, defend, and save Landlord harmless from and
against any and all claims (including personal injury, real,
or personal property damage), actions, judgments, damages,
penalties, fines, costs, liabilities, interest, or attorneys'
fees that arise, directly or indirectly, from Tenant's
violation of any Environmental Laws or the presence of any
Hazardous Materials caused by Tenant on, under or about the
premises.
The Tenant's obligations, responsibilities, and liabilities under this
paragraph shall survive the expiration of this Lease.
For purposes of this paragraph the following definitions apply:
"Hazardous Materials" shall mean: (a) any "hazardous waste" and/or
"hazardous substance" defined pursuant to any Environmental Laws; (b) asbestos
or any substance containing asbestos; (c) polychlorinated biphenyls; (d) lead;
(e) radon; (f) pesticides; (g) petroleum or any other substance containing
hydrocarbons; (h) any substance which, when on the premises, is prohibited by
any Environmental Laws; and (i) any other substance, material, or waste which,
(1) by any Environmental Laws requires special handling or notification of any
governmental authority in its collection, storage, treatment, or disposal, or
(2) is defined or classified as hazardous, dangerous or toxic pursuant to any
legal requirements.
"Environmental Laws" shall mean: any and all federal, state and local
laws, statutes, codes, ordinances, regulations, rules or other requirements,
relating to human health or safety or to the environment, including, but not
limited to, those applicable to the storage, treatment, disposal, handling and
release of any Hazardous Materials, all as amended or modified from time to
time.
29. EMINENT DOMAIN
29.1 PREMISES TAKEN. If the premises or any portion thereof are
taken under the power of eminent domain or sold under the threat of the
exercise of said power (all of which are herein called "condemnation"), this
Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever first occurs. If more than ten
percent (10%) of the floor area of the premises, or more then twenty-five
percept (25%) of the parking area of the Project is taken by condemnation and
cannot be replaced by Landlord, Tenant may, at Tenant's option, to be exercised
in writing only within thirty (30) days after Landlord shall have given Tenant
written notice of such taking (or in the absence of such notice, within thirty
(30) days after the condemning authority shall have taken possession), terminate
this Lease as of the date the condemning authority takes such possession.
29.2 PREMISES REMAINING. If Tenant does not terminate this Lease in
accordance with the foregoing, Landlord, at its expense, shall restore the
improvements with reasonable diligence to an architectural whole, and this
Lease shall remain in full force and effect as to the portion of the premises
remaining, except that the rent shall be reduced in the proportion that the
floor area of the premises taken bears to the total floor area of the original
premises. Any award for the taking of all or any part of the premises under the
power of eminent domain, or any payment made under threat of the exercise of
such power, shall be the property of the Landlord, whether such award shall be
made as compensation for diminution in value of the leasehold or for the taking
of the fee, or as severance damages; provided, however, that Tenant shall se
entitled to any award for loss or damage to Tenant's trade fixtures, leasehold
estate, removable personal property, equipment and improvements which were made
by Tenant.
30. HOLDING OVER
30.1 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 50% of the Base Rent last charged Tenant
during the primary Lease or any renewal or extension thereof, subject to the
right of either party to terminate upon thirty (30) days written notice to the
other party.
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31. SUBORDINATION AND STATEMENT OF CONDITION OF LEASE
31.1 SUBORDINATION. Tenant accepts this Lease subject and
subordinate to any mortgage presently existing or to hereinafter come into
existence upon the demised premises or upon the entire premises and to any
renewals and extensions thereof, but Tenant agrees that any mortgagee shall
have the right at any time to subordinate such mortgage to this Lease on such
terms and subject to such conditions as the mortgagee may deem appropriate in
its discretion. This subordination shall be self-operative without the
necessity of the execution of any further instruments by Tenant, but upon the
request of any present or future mortgagee, 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 demised
premises or upon the entire premises by executing a written subordination
instrument as attorney-in-fact for Tenant, and Tenant further agrees upon
demand to execute any additional instruments subordinating this Lease as
Landlord may request. Any such subordination provided for in this Paragraph
shall be upon the express condition that: (a) upon foreclosure, exercise of
power of sale or other exercise of the mortgagee's rights, Tenant's possession
of the demised premises shall not be disturbed so long as Tenant shall continue
to perform all of the covenants and conditions of this Lease; and (b) that
Tenant's obligation to perform such covenants and conditions shall not be in
any way diminished thereby. SEE PAGE 1b.
31.2 CONDITION OF LEASE. Tenant shall execute, acknowledge and
deliver to Landlord, without any charge, at any time within ten (10) days after
request by Landlord, a written statement or estoppel certificate as may be
required by any mortgagee or purchaser of the premises 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 this Lease, the date on which rental has
been last paid, the existence of any default, 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 buildings of
which the premises are a part and shall not affect Tenant's right to later
assert any subsequent default or modification. Upon request by Tenant, Landlord
shall execute a similar letter without any charge to Tenant.
32. SIGNS
32.1 Tenant, at Tenant's expense, may affix one sign to the
exterior of the premises in a location previously designated by Landlord. Such
sign must meet Landlord's reasonable requirements with respect to size, shape,
construction, materials, design and color, (Exhibit "B") and must be approved
in writing by Landlord prior to its installation by Tenant. Landlord reserves
the right to the use of the exterior walls and the roof of the premises and the
building of which the premises are a part.
33. SECURITY
33.1 Tenant, at Tenant's own expense, shall provide whatever
security and/or alarm systems which Tenant deems necessary and appropriate for
the protection of the leased 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 personal property, 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 Landlord reasonably deems necessary, in
which event Tenant shall pay to Landlord, promptly after demand, Tenant's pro
rata share of the costs incurred by Landlord in having such services performed,
such pro-rata share to be determined by the percentage which the square footage
of the leased premises bears to the total square footage of the building(s)
benefiting from such services. Tenant is hereby notified that Landlord
maintains no security with respect to keys and that Tenant may (at Tenant's
expense) change or re-key the premises' locks as deemed necessary by Tenant
without Landlord's consent. Upon default per Paragraph 23.1 of this Lease,
Landlord may change or re-key the premises locks without Tenant's consent or
notice to Tenant.
34. MISCELLANEOUS
34.1 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.
34.2 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, administrators, legal
representatives, 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.
34.3 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.
34.4 TIME AND JOINT AND SEVERAL LIABILITY. Time is of the essence
in each and every provision of this Lease. 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.
34.5 NON WAIVER. No covenant, term or 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 rent at any time shall not be deemed to be a waiver of any
covenant, term or condition as to the rent payment accepted.
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34.6 WITHHOLDING OF CONSENT. DELETED
34.7 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,
signed and acknowledged by the parties hereto, their legal representatives,
successors and assigns, except as may be expressly otherwise provided herein.
34.8 NO REPRESENTATIONS. Landlord or Landlord's agent have made no
expressed or implied representations or promises now or in the future with
respect to the building, the land upon which the building is erected, 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.
34.9 QUIET ENJOYMENT. Tenant, subject to the terms and provisions
of this Lease on payment of the rent and observing, keeping and performing all
the terms or provisions of this Lease on its part to be observed, kept and
performed shall lawfully, peacefully and quietly have, hold and enjoy the
premises during the term hereof on and after the term Commencement Date without
hindrance or ejection, subject, nevertheless, to the terms and conditions of
this Lease. It is understood and agreed, however, that this covenant and any
and all other covenants of Landlord contained in this Lease shall be binding
upon Landlord and its successors only with respect to breaches occurring during
its and their respective ownership of Landlord's interest hereunder.
34.10 LIMITATION OF LANDLORD'S REPRESENTATIVE. Landlord's
representative, unless authorized by Landlord, does not and will not have
authority to (a) make exceptions, changes or amendments to this Lease, (b)
waive any right, requirement, or provision of this Lease, or (c) release Tenant
from all or part of this Lease, unless such action is in writing.
34.11 RULES AND REGULATIONS. Tenant and Tenant's agents, employees
and invitees will comply fully with any reasonable rules and regulations
including those on Exhibit "A" governing the operation and use of the premises
or the common service drives, parking areas, and railroad spur (if any)
situated upon the project which are hereinafter imposed by Landlord upon all
Tenants of the Project in order to preserve the rights and peaceful occupancy
of all Tenants of the Project.
SEE PAGE 1b.
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EXECUTED THIS 28th day of April, 1997
LANDLORD: TENANT:
AEQUUS PROPERTY MANAGEMENT COMPANY, LIFEQUEST MEDICAL, INC.
AS MANAGER FOR INTERPARK XXXX LIMITED
PARTNERSHIP
BY: /s/ XXXXXXX X. XXXX BY: /s/ XXXX XXXXX
-------------------------------------- ---------------------------------
XXXXXXX X. XXXX, PRESIDENT XXXX XXXXX, PRESIDENT
BY: /s/ XXXXXXX X. XXXXXX BY:
-------------------------------------- ---------------------------------
XXXXXXX X. XXXXXX, SECRETARY
AEQUUS PROPERTY MANAGEMENT COMPANY
BY: BY:
-------------------------------------- ----------------------------------
LANDLORD'S ADDRESS: TENANT'S ADDRESS:
0000 X.X. Xxxx 410 0000 XxXxxxxxxx XxxxxxX, #0000
Xxx Xxxxxxx, Xx 00000-0000 Xxx Xxxxxxx, Xxxxx 00000
Home Office Telephone No.: _________
TAX I.D. #: 00-0000000 Local Office Telephone No.:_________
Interpark Xxxx Limited Partnership (000) 000-0000
Emergency Telephone No.: __________
SIC Code: __________________________
Landlord'S PROPERTY MANAGER:
Aequus Property Management Company
0000 X.X. Xxxx 000
Xxx Xxxxxxx, Xx 00000-0000
(000) 000-0000
TAX I.D. #: 00-0000000
10
INITIALS
