1
EXHIBIT 10p
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into as of the
8th day of October, 1998, by and between XXXXXX INCOME PROPERTIES II, LTD., a
Texas limited partnership, ("Landlord"), whose address is 0000 XXX Xxxxxxx,
Xxxxx 000, XX #0, Xxxxxx, Xxxxx 00000, and XXXXXX XXXXX CORP., a Pennsylvania
corporation ("Tenant"), whose address is 000 Xxxx Xxxxxx, Xxxx xx Xxxxxxx,
Xxxxxxxxxxxx 00000. Subject to all of the terms, provisions, covenants and
conditions of this Lease, and in consideration of the mutual covenants,
obligations and agreements contained in this Lease, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Landlord and Tenant agree as follows:
ARTICLE I. BASIC LEASE PROVISIONS.
Base Rental shall mean for each month during the Term (hereinafter defined) the
amount per square foot of Floor Area in the Leased Premises set forth below:
Period Base Rental/Square Foot Monthly Base Rental
------ ----------------------- -------------------
December 1, 2000 - October 31, 2004 $3.00 $13,500.00
November 1, 2004 - October 31, 2007 $3.10 $13,950.00
November 1, 2007 - October 31, 2009 $3.25 $14,625.00
November 1, 2009 - October 31, 2014 $3.50 $15,750.00
Broker shall mean Xxxxxx Realty Investors IX, Inc.
Building shall mean the approximately 172,800 square foot structure situated
upon the Site (hereinafter defined), located in the City of Xxxxx Xxxxxxx,
Xxxxxx xx Xxxxxxx, Xxxxx xx Xxxxx, as the same currently exists or as it may
from time to time hereafter be expanded or modified. For the purposes of
determining Tenant's Share, the floor area of the Building shall be the amount
set forth in the preceding sentence.
Commencement Date shall mean December 1, 2000.
Common Area shall mean all areas of the Site designated by Landlord from time
to time for the common use of all tenants, including, among other facilities,
parking areas, sidewalks, landscaping, curbs, loading areas, private streets
and alleys, lighting facilities, hallways, restrooms and other areas and
improvements provided by Landlord for the common use of all tenants, all of
which shall be subject to the provisions of Section 4.02 of this Lease.
Floor Area shall mean the total number of square feet of floor space in the
Leased Premises (hereinafter defined) available for the exclusive use of an
occupant, whether or not actually occupied, including basement, subterranean,
balcony and mezzanine, measured from exterior facade of exterior walls and
center line of demising walls. The Floor Area of the Leased Premises has been
calculated on the basis of the foregoing definition, and is stipulated for all
purposes to be the number of square feet set forth in Section 2.01 of the
Lease, whether the same should be more or less as a result of minor variations
resulting from completion of the Leased Premises for occupancy so long as such
work is in accordance with this Lease.
Other Lease shall mean that certain Lease Agreement dated as of October 23,
1992 between Landlord and Tenant, as the successor-in-interest to Xxxxxx Family
Partnership Ltd. providing for the lease by Landlord to Tenant of 118,800
square feet of Floor Area in the Building.
Project shall mean the Building, together with the Site, the Common Area and
all other improvements situated therein or directly benefitting the Building,
and all future additional facilities or improvements directly benefitting the
Building that may be constructed.
Site shall mean that certain tract of land situated in Tarrant County, Texas
and more particularly described on Exhibit A attached hereto and hereby made a
part hereof.
Term shall mean one hundred sixty-seven (167) months, commencing on the
Commencement Date and ending on October 31, 2014, as the same may be extended
pursuant to Section 2.04.
2
ARTICLE II. Section II.1. Leased Premises. Landlord does hereby lease, demise
and let to Tenant and Tenant does hereby lease and take from Landlord those
certain premises containing approximately 54,000 square feet of Floor Area in
the Building together with the non-exclusive use of all rights, privileges,
easements, appurtenances and immunities belonging to or in any way pertaining
to said premises (collectively, the "Leased Premises"). The Leased Premises are
outlined on Exhibit B attached hereto and hereby made a part hereof. Tenant
accepts the Leased Premises and the Project in their "AS IS" "WHERE IS"
condition, and Landlord shall have no obligation to furnish, equip or improve
the Leased Premises or the Project. By occupying the Leased Premises, Tenant
shall be deemed to have accepted the Leased Premises and the Project and to
have acknowledged that the Leased Premises and the Project comply fully with
Landlord's covenants and obligations.
Section II.2. Term. The Term of this Lease shall begin on the Commencement Date
and shall continue in full force and effect for the Term of this Lease unless
extended or sooner terminated in accordance with the provisions of this Lease.
Section II.3. Use. Tenant shall use and be permitted to use the Leased Premises
solely for the following purposes: general office and warehouse for the storage
and management of business records and for no other purpose. Any other use may
be done only with Landlord's prior written consent, not to be unreasonably
withheld, conditioned or delayed. Tenant, at its sole expense, will comply, and
will cause Tenant's Agents (hereinafter defined) to comply, with any and all
applicable laws, rules and regulations in any way applicable to Tenant,
Tenant's Property (hereinafter defined), the Leased Premises or the Project
(collectively, "Legal Requirements" and individually, "Legal Requirement").
Tenant will not (a) use, occupy or permit the use or occupancy of the Leased
Premises or the Project for any purpose or in any manner which is not permitted
hereunder or which is or may be, directly or indirectly, violative of any Legal
Requirement, or dangerous to life or property, or a public or private nuisance,
or disruptive or obstructive of any tenant or neighbor of the Leased Premises
or the Project; provided, however, Tenant shall be entitled to contest in good
faith the alleged violation by Tenant of any Legal Requirement so long as
Tenant's contest does not adversely affect the Building or Landlord and any
enforcement proceedings against the Building or Landlord have been stayed, (b)
keep, or permit to be kept, any substance in or conduct, or permit to be
conducted, any operation from the Leased Premises or the Project which might
emit offensive or hazardous odors or conditions onto or into the Leased
Premises, the Project or the property located outside the Project, (c) cause,
commit or permit to remain any waste or damage to the Leased Premises or the
Project, or any conditions which adversely impair in Landlord's sole reasonable
judgment the value or marketability of the Leased Premises or the Project, (d)
install or permit to remain any improvements to the Leased Premises or the
Project (other than improvements which have first been approved by Landlord)
which are visible from the outside of the Leased Premises or the Project, or
adversely affect the mechanical, plumbing or electrical systems of the Building
or affect the structural integrity thereof in any way, (e) place any dumpsters
or other garbage or trash disposal equipment in the Leased Premises or the
Project except those approved by Landlord, or (f) commit, or permit to be
committed, any action or circumstance in, upon or about the Leased Premises or
the Project which, directly or indirectly, would or might justify any insurance
carrier in canceling or increasing the premium on any insurance policy covering
the Leased Premises, the Project or the contents thereof, and if any increase
so results, Tenant shall pay such increase upon Landlord's demand. Tenant shall
comply with, and Tenant shall cause Tenant's Agents to comply with, the current
Rules and Regulations of the Building (a copy of which are attached hereto as
Exhibit C) as the same may be amended by Landlord from time to time. Landlord
will endeavor in good faith to apply the Rules and Regulations uniformly and
consistently among all tenants of the Building.
Section II.4. Renewal Option. Provided no default shall remain uncured beyond
any applicable grace or cure period at the time the option is exercised, and
provided Tenant shall not have assigned this Lease or sublet the Leased
Premises, Tenant shall have the right, at the expiration of the initial Term to
extend the Term as to the entire Leased Premises for a period of five (5) years
("Renewal Term"). If the option is exercised during a grace or cure period, the
exercise shall be of no force or effect if the default is not cured by the
expiration of the applicable grace or cure period. Such right to renew shall be
exercised by written notice to Landlord at least 180 days prior to the end of
the initial Term. During the Renewal Term, the Lease shall continue upon the
same terms and conditions as provided herein except for an adjustment in Base
Rental as hereinafter provided. During the Renewal Term, Base Rental shall be
ninety-five percent (95%) of Market Rent (hereinafter defined). "Market Rent"
shall mean the prevailing fair market rental rate for comparable lease space in
the area of the Project at the time in question. The Market Rent shall be
determined by agreement of the parties; provided, however, if the parties are
unable to agree on Market Rent by ninety (90) days prior to commencement of the
Renewal Term, within the next fifteen (15) days, each of Landlord and Tenant
shall select an independent qualified appraiser and such appraisers shall
select a third. The three
2
3
appraisers so selected shall determine the Market Rent for the Leased Premises
and shall submit a written report of their determination to both Landlord and
Tenant within thirty (30) days after selection. Prior to the commencement of
the Renewal Term, Landlord and Tenant shall execute and deliver an agreement
evidencing the renewal and establishing the adjusted Base Rental. Tenant's
failure to timely exercise its option to extend for the Renewal Term in the
manner provided in this Section shall constitute Tenant's waiver of all rights
to extend the Term.
Section II.5. Left Blank Intentionally.
Section II.6. Left Blank Intentionally.
ARTICLE III. Section III.1. Rent. (a) Tenant agrees to pay the Base Rental to
Landlord for each month during the Term of the Lease as herein provided. Base
Rental for the first (1st) month of the Term of the Lease shall be due and
payable on the Commencement Date, and Base Rental for each and every month
thereafter during the Term of the Lease shall be due and payable in advance on
the first (1st) day of each month. If the Commencement Date is a day other than
the first (1st) day of a calendar month or in the event this Lease terminates
on other than the last day of a calendar month, then Base Rental for such month
or months shall be prorated and the rental installment or installments so
prorated shall be paid in advance. Tenant shall pay any and all sums, other
than Base Rental, which Tenant is or becomes obligated to pay to Landlord under
this Lease (herein called "Additional Rental") within thirty (30) days after
receipt of Landlord's invoice or statement for same which statement shall be
accompanied by receipted bills and other detail sufficient to allow
verification of amounts reflected on the statement, or, if this Lease provides
another time for payment of certain items of Additional Rental, then at such
other time.
(b) Tenant shall pay to Landlord Tenant's Share (hereinafter defined) of
Expenses (hereinafter defined) as follows as an item of Additional Rental.
(i) "Tenant's Share" shall mean that portion of an Expense determined
by multiplying the cost of the item by a fraction, the numerator of which is
the total Floor Area of the Leased Premises and the denominator of which is the
total floor area of the Building. Landlord and Tenant acknowledge that the size
of the Project, and the floor area therein, may change from time to time, and
Tenant's Share may vary accordingly.
(ii) "Expenses" shall mean the total in any given calendar year of all
expenses, costs and disbursements (but not specific costs billed to specific
tenants) of every kind and nature which Landlord shall pay or become obligated
to pay because of, or in connection with, ownership, maintenance (other than
maintenance of the roof, exterior walls and foundation to the extent Landlord
is obligated to maintain such items pursuant to Section 4.01(a)) and operation
of the Project, including without limitation, the following: (A) costs of all
insurance relating to the Project maintained by Landlord; (B) all real estate
taxes, assessments (whether they be general, specific or special), sewer rents,
rates and charges, transit taxes, taxes based upon the receipt of rent and any
other federal, state or local governmental charge, general, special, ordinary
or extraordinary (but not including income or franchise taxes or estate;
inheritance, succession or transfer taxes, or any other taxes imposed upon or
measured by Landlord's income or profits, unless a rent tax or receipts tax
regarding the Leased Premises or the Project is imposed, in which case Tenant
shall pay such tax determined as if only the Leased Premises were being taxed
exclusive of Landlord's other property), which may now or hereafter be levied
or assessed against or relating to the Project; (C) costs of repairs and
general maintenance of all Common Areas; and (D) cost of all supplies and
materials used in such repair and maintenance. All accounting for Expenses
shall be on the accrual basis except for taxes which, notwithstanding any other
provision herein to the contrary, shall be computed on the basis of taxes
actually paid during the calendar year in question and in accordance with
generally accepted accounting principles.
(iii) Calculation of Tenant's Share of Expenses. Tenant's Share of
Expenses shall be determined and paid in the following manner:
(A) (1) For the calendar year of Landlord in which the Commencement
Date occurs (the "First Year"), whether the portion of the Term following the
Commencement Date includes the full calendar year or a portion thereof,
Tenant's Share of Expenses shall be determined by applying Tenant's Share to an
amount equal to the Expenses of the Project, as projected by Landlord for the
full calendar year.
(2) For each calendar year during the Term (whether full calendar
year or portion thereof falls within the Term) following the First Year (a "New
Year"), Landlord shall provide Tenant a comparison
3
4
between the Expenses for the year preceding the New Year and the projected
Expenses for each New Year. Landlord shall make reasonable efforts to provide
such projection prior to, and Tenant shall commence to pay on or effective, the
first day of each New Year Tenant's Share of Expenses -- which shall be
determined by applying Tenant's Share to an amount equal to Expenses of the
Project, as projected by Landlord for the full calendar year.
(3) Tenant shall pay one-twelfth (1/12th) of Tenant's Share of
Expenses, as determined by the provisions in (iii)(A)(1) and (2) above, as
applicable, for each month of the Term following the Commencement Date.
However, if this Lease commences or terminates at any time other than on the
first day of a calendar month, Tenant's Share of Expenses for said commencement
or termination month shall be prorated accordingly.
(B) Landlord shall, within the period of one hundred fifty (150) days
(or as soon thereafter as possible) after the close of the First Year and each
New Year, provide Tenant a statement for such year showing the projected
Expenses, actual Expenses, and the difference between them (the "Difference").
If actual Expenses are greater than those projected for such year, Tenant shall
pay as Additional Rental Tenant's Share of the Difference upon Landlord's
demand. If such year's projected Expenses are greater than the actual Expenses
for such year, Landlord shall credit Tenant's Share of the Difference against
the Base Rental next falling due. If this Lease commences or terminates at any
time other than the first day of the year, then Tenant's Share of the
Difference for such commencement or termination year shall be prorated
accordingly.
Section III.2. Payment; Past Due Rate. Base Rental and Additional Rental shall
constitute and are sometimes hereinafter collectively referred to as "Rent".
Tenant shall pay all Rent and other sums of money as shall become due from and
payable by Tenant to Landlord hereunder in lawful money of the United States of
America at the times and in the manner provided in this Lease, without demand,
deduction, abatement, setoff, counterclaim or prior notice. In the event that
Tenant fails to pay any installment of Rent or any other sums due under this
Lease by the due date thereof or within any grace period provided for herein,
the total amount then due shall bear interest at the lesser of twelve percent
(12%) or the maximum nonusurious rate of interest then permitted by the
applicable laws of the State of Texas or the United States of America,
whichever shall permit the higher nonusurious rate, such interest being in
addition to and cumulative of any other rights and remedies which Landlord may
have with regard to the failure of Tenant to make any such payments under this
Lease.
Section III.3. Left Blank Intentionally.
ARTICLE IV. Section IV.1. Maintenance. (a) Landlord's Maintenance. Landlord
shall maintain at its sole cost and expense the roof, structural soundness of
the exterior walls and foundation of the Leased Premises in operable repair and
condition, reasonable wear and tear and damage by any casualty pursuant to
Section 6.03 of this Lease excepted. Tenant shall immediately give Landlord
written notice of defects or repairs of items required to be maintained by
Landlord under this Article IV, after which Landlord shall, with reasonable
promptness, commence and complete the necessary repairs. If Landlord has not
completed the repairs within thirty (30) days after notice from Tenant, or if
the nature of the repair is such that it cannot reasonably be completed in
thirty (30) days, unless Landlord has within such thirty-day period commenced
the repair and is diligently pursuing the same to completion, Tenant may, at
its option, undertake the repairs itself. In that event, Landlord shall
reimburse Tenant for the reasonable cost of such repairs within thirty (30)
days after receipt of a statement therefor accompanied by receipted bills and
other detail sufficient to allow verification of amounts reflected on the
statement. If Landlord fails to make such payment within the thirty-day period,
the amount due Tenant shall bear interest at twelve percent (12%) per annum.
Notwithstanding the foregoing, if in Tenant's reasonable judgment, a bona fide
emergency exists, if Landlord has not made the necessary repairs within 72
hours after written notice from Tenant, Tenant may, at its option, undertake
such repairs and recover the reasonable cost thereof as hereinabove provided.
Landlord shall not be liable to Tenant for any damage to Tenant's Property in
the Leased Premises or Project; provided, however, if by reason of Landlord's
failure to repair and maintain the Leased Premises as provided in this Section
4.01(a), there is a material interference with the ordinary conduct of Tenant's
business, Tenant shall be entitled to a fair and equitable diminution of the
Base Rental payable hereunder, based on the extent and nature of the
interference and the portion of the Leased Premises so affected. The period of
the diminution shall continue until the interference has been substantially
removed. Unless otherwise expressly provided in this Lease, Landlord shall not
be required to maintain, or make any repairs to, the Leased Premises. Subject
to the provisions of Section 3.01(b) hereof, Landlord shall also maintain all
landscaping, exterior lighting, concrete and paving including driveway and
parking area surfaces (subject, however, to the limitations of Section 4.01(b)
of this Lease), pedestrian walks and other Common Area.
4
5
(b) Tenant's Maintenance. Tenant shall, at its sole expense, keep all
other parts of the Leased Premises in good condition, order and repair, clean,
sanitary and safe, including, without limitation, the following items: all
glass, including windows of glass or plate glass, window mullions and gaskets,
doors and attached hardware, office entries, special store fronts, interior
walls, interior ceilings, cabinets, millwork, paneling and other finish work,
floors and floor coverings, plumbing fixtures and sanitary sewers between
Tenant's plumbing fixtures and the main Project sanitary sewers, electrical
facilities and electrical fixtures, and all other equipment, fixtures and Trade
Fixtures (hereinafter defined), and shall paint the interior of the Leased
Premises when necessary in order to maintain at all times a clean and sightly
appearance. Tenant shall also maintain on a regular basis the heating,
ventilating and cooling equipment serving the Leased Premises, and repair the
same as necessary. Tenant shall repair and replace, subject to Landlord's
direction and supervision, any damage to the Leased Premises or the Project
caused by Tenant or any of Tenant's Agents. If Tenant refuses or neglects to
make repairs and/or maintain the Leased Premises, or any part thereof, in a
manner reasonably satisfactory to Landlord, Landlord shall have the right (but
not the obligation), upon giving Tenant ten days' prior written notice of its
election to do so, to make such repairs or replacements or perform such
maintenance on behalf of and for the account of Tenant. Such cost shall be
payable to Landlord by Tenant on demand as Additional Rental. The obligation to
repair shall include the obligation to replace when necessary. All contractors,
workmen, artisans and other persons which or who Tenant proposes to retain to
perform work in the Leased Premises pursuant to this Section 4.01 shall be
approved by Landlord prior to the commencement of any such work. Tenant is also
obligated to perform, at Tenant's own cost and expense and risk, all other
maintenance and repairs necessary or appropriate to cause the Leased Premises
to be suitable for Tenant's intended commercial purpose.
(c) Occupancy of Leased Premises. Tenant shall throughout the Term of
this Lease, at its own expense, maintain the Leased Premises and all
improvements thereon and shall deliver up the Leased Premises in a clean and
sanitary condition at the expiration or termination of this Lease or the
termination of Tenant's right to occupy the Leased Premises, in good repair and
condition, reasonable wear and tear excepted, subject to the provisions of
Article VI. Upon the expiration or termination of this Lease or the termination
of Tenant's right to occupy the Leased Premises, Tenant shall surrender all
keys for the Leased Premises to Landlord at the place then fixed for the
payment of Rent and Landlord shall have the right to reenter and resume
possession of the Leased Premises. No act done by Landlord or any of Landlord's
Agents (hereinafter defined) during the Term of the Lease shall be deemed an
acceptance of a surrender of the Leased Premises, and no agreement to accept a
surrender of the Leased Premises shall be valid unless the same be made in
writing and executed by Landlord. Tenant shall notify Landlord at least fifteen
(15) days prior to vacating the Leased Premises and shall arrange to meet with
Landlord for a joint inspection of the Leased Premises. If Tenant fails to give
such notice or to arrange for such inspection, then Landlord's inspection of
the Leased Premises shall be deemed correct for the purpose of determining
Tenant's responsibility for repair of the Leased Premises.
Section IV.2. Common Area. The Common Area shall be subject to Landlord's sole
management and control and shall be operated and maintained in such manner as
Landlord, in its 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 in the Project, and to eliminate buildings. Tenant and Tenant's
Agents shall have the nonexclusive right and license to use the Common Area as
constituted from time to time, such use to be in common with Landlord, other
tenants of the Project and other persons permitted by Landlord to use the
Common Area. Landlord may from time to time designate specific areas within the
Project or in reasonable proximity thereto in which automobiles owned by Tenant
and Tenant's Agents shall be parked. Tenant and Tenant's Agents shall not,
without the prior written consent of Landlord, solicit business or display
merchandise within the Common Area, or distribute handbills therein, or take
any action which would interfere with the rights of other persons to use the
Common Area. Landlord may temporarily close any part of the Common Area as may
be necessary to prevent the public from obtaining prescriptive rights or to
make repairs or alterations.
Section IV.3. Light, Air and View. Neither the diminution nor the shutting off
of any light, air or view nor any other effect on the Leased Premises by any
structure or condition now or hereafter existing on property adjacent to the
Leased Premises or the Project shall affect this Lease, xxxxx Rent or otherwise
impose any liability on Landlord.
Section IV.4. Entry. Tenant shall permit Landlord and Landlord's Agents
(hereinafter defined) to enter into and upon the Leased Premises at all
reasonable times for the purposes of inspecting the same or showing the
5
6
same to prospective purchasers, or for the purpose of maintaining or making
repairs and the Rent shall in no way xxxxx while such inspections, repairs,
alterations, improvements or additions are being made, by reason of loss or
interruption of business of Tenant; provided, however, that Landlord shall make
reasonable efforts not to interfere with the normal business operations of
Tenant. During the period that is six (6) months prior to the end of the Term
hereof (unless Tenant has exercised its option to renew) and at any time Tenant
is in default, Landlord or Landlord's Agents may enter the Leased Premises
during reasonable times for the purpose of showing the Leased Premises.
Landlord acknowledges that the business conducted by Tenant and to be conducted
by Tenant on the Leased Premises consists of retention, maintenance and storage
of records of third parties, which requires that their access be restricted so
as to maintain the confidentiality thereof. In exercising its right to enter
into and upon the Leased Premises, Landlord shall observe such procedures and
safeguards as Tenant may reasonably impose to protect the confidentiality of
the business records stored in the Leased Premises, provided, in the case of an
emergency, Landlord may take such action as may be reasonably necessary to
protect the Leased Premises. In the event of a default by Tenant under and
pursuant to this Lease, Tenant, or the third parties whose records are stored
and maintained by Tenant on the Premises, shall have thirty (30) days from the
retaking of possession by Landlord in which to remove such records from the
Premises without interference from Landlord. In no event shall any Landlord
type lien, security interest or encumbrance attach in any manner to any of such
third party records.
Section IV.5. Waste and Environmental Compliance. Tenant covenants and agrees
to comply strictly and in all respects and to cause Tenant's Agents to comply
strictly and in all respects with the requirements of any applicable law,
statute, ordinance, permit, decree, guideline, rule, regulation or order
pertaining to health or the environment (hereinafter sometimes collectively
called "Applicable Environmental Laws"), including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
the Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act, the Texas Water Code, the Texas Solid Waste Disposal Act
and regulations promulgated under any of the preceding statutes, as each of the
foregoing may be amended from time to time. Tenant shall not cause or permit
any Hazardous Materials (hereinafter defined) to be brought to or generated,
treated, stored, used, installed or disposed in, on, under or about the Leased
Premises or the Project. Tenant represents, warrants, covenants and agrees that
Tenant and Tenant's Agents are not and will not become involved in operations
at the Leased Premises, the Project which could lead to the imposition on
Landlord or any of Landlord's Related Parties (hereinafter defined) of
liability under any of the Applicable Environmental Laws. As additional
consideration for Landlord's entering into this Lease, Tenant does hereby for
itself and its heirs, legal representatives, successors and assigns, agree to
and hereby does expressly (a) assume and accept any and all liability and risks
involved or related to the presence on the Project of any and all Hazardous
Materials introduced by Tenant, (b) indemnify, defend and hold harmless
Landlord and Landlord's Related Parties against and from any and all actions,
causes of action, claims, demands, liabilities, losses, damages and expenses of
whatsoever kind, including, but not limited to, attorneys' fees, that any or
all of Landlord or any of Landlord's Related Parties may at any time sustain or
incur by reason of any and all claims asserted against any of them to the
extent that such claims arise out of or are based upon the breach of any of the
agreements of Tenant under this Section 4.05 or based upon any Hazardous
Materials being brought or allowed to be brought to or from the Project by
Tenant or any of Tenant's Agents. The covenants and agreements of Tenant under
this Section 4.05 shall survive the expiration or termination of this Lease. As
used in this Lease, the term "Hazardous Materials" means any flammables,
explosives, radioactive materials, asbestos-containing materials, solid wastes
that pose imminent and substantial endangerment to health or the environment,
formaldehyde, radon gas, lead, petroleum products or wastes, polychlorinated
biphenyls and other hazardous waste, toxic substances or other potentially
health affecting substances, including without limitation substances defined as
"hazardous substances," "hazardous materials," "toxic substances," "hazardous
waste," "extremely hazardous substance," "regulated substance," "contaminant"
or "Class I" or "Class II" waste in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Hazardous Materials Transportation
Act, the Resources Conservation and Recovery Act, the Texas Water Code, the
Texas Solid Waste Disposal Act, and regulations promulgated under any of the
preceding statutes, as each of the foregoing may be amended from time to time.
ARTICLE V. Section V.1. Utilities. (a) Services. Landlord agrees to cause to be
provided the necessary mains, conduits and other facilities necessary to supply
water, electricity, gas, telephone, and sewer service (sometimes collectively
referred to in this Section 5.01 as the "services") to the Leased Premises to
the extent and in such manner as is deemed by Landlord to be adequate for the
use and occupancy of the Building.
(b) Payment of Impositions. Tenant shall pay all charges for gas,
electricity and water used in its operations in the Leased Premises, and all
connection charges and sewer charges attributable thereto. Tenant shall pay
suppliers directly for those utilities which are separately metered by the
supplier thereof. Tenant
6
7
shall pay Landlord for utilities which are not paid directly to the supplier
thereof and charges for such utilities shall be calculated by Landlord in
accordance with Section 3.01(b) hereof.
(c) Personal Property Taxes. Tenant shall pay all ad valorem and other
taxes, assessments or charges levied upon or applicable to any of Tenant's
Property and all fees or charges imposed on the business conducted by Tenant on
the Leased Premises before such items become delinquent. If Landlord shall be
required to pay a higher tax with respect to the Leased Premises as a result of
Tenant's leasehold improvements, then Tenant shall pay to Landlord, upon
demand, the amount of the increase in such tax.
(d) No Liability. No interruption, cessation or malfunction of any
services from any cause of any kind which is beyond the reasonable control of
Landlord, shall constitute an eviction or disturbance of Tenant's use and
possession of the Leased Premises or a breach by Landlord of any of its
obligations under this Lease or render Landlord liable for any damages to
either person or property (including, without limitation, consequential or
special damages) or entitle Tenant to be relieved from any of its obligations
under this Lease (including the obligation to pay Rent) or grant Tenant any
right of setoff, counterclaim, abatement or recoupment. In the event of any
such interruption of any such services, Landlord shall use reasonable diligence
to restore such service.
Section V.2. Liens. Tenant shall not permit any mechanic's lien or any other
liens, claims or charges to be placed on the Leased Premises, on the Project,
on the improvements thereon, on Landlord's interest therein, or upon Tenant's
leasehold interest therein, during the Term of this Lease, and in the event of
the filing of any such lien, encumbrance, claim or charge, Tenant shall
promptly have same removed. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of labor
performed or materials furnished in connection with any work performed on the
Leased Premises and that it will save and hold Landlord harmless from and
defend Landlord against any and all loss, cost or expense based on or arising
out of any such asserted claims, liens or charges. Tenant agrees to give
Landlord immediate written notice of the placing of any lien, charge, claim or
encumbrance against the Leased Premises.
Section V.3. Indemnification. As additional consideration for Landlord entering
into this Lease, Tenant does hereby for itself and its heirs, legal
representatives, successors and assigns, agree to and hereby does expressly
indemnify, defend and hold harmless Landlord, and Landlord's manager of the
Project and Landlord's and such manager's agents, principals, employees, heirs,
legal representatives, successors, assigns, affiliates, officers, directors,
shareholders, partners, venturers, trustees and representatives (collectively,
"Landlord's Related Parties"), against and from any and all claims, actions,
causes of action, demands, losses, assessments, suits, damages, liability,
costs and expenses of whatever kind (including without limitation attorneys'
fees), that Landlord or any of Landlord's Related Parties may at any time
sustain or incur by reason of any and all claims asserted against any of them
to the extent that such claims arise out of or are based upon (a) any breach of
any of the agreements of Tenant under this Lease, (b) any occurrence in, upon
or about the Leased Premises or the Project caused by the sole, contributory,
partial, joint, comparative or concurrent negligence of Tenant or Tenant's
respective employees, agents, officers, directors, shareholders, partners,
trustees, representatives, customers, guests, invitees, licensees, subtenants,
concessionaires, contractors, servants, vendors, materialmen, suppliers, heirs,
legal representatives, successors, assigns or any other person entering the
Project under express or implied invitation of Tenant, claiming by, through or
under Tenant or who may occupy or use the Leased Premises (collectively,
"Tenant's Agents"), (c) the conduct of management of any work done by Tenant or
any of Tenant's Agents in, upon or about the Leased Premises or the Project,
(d) any occurrence in, upon or about the Leased Premises or the Project
occasioned wholly or in part by any act, omission or neglect claimed to have
been caused by Tenant or any of Tenant's Agents, or (e) any occurrence
occasioned by the violation of any law, statute, permit, order, decree,
guideline, rule, regulation or ordinance (including without limitation any
Legal Requirements) by Tenant or any of Tenant's Agents. In any case in which
Tenant has agreed to indemnify Landlord, Landlord's Related Parties or any
other person, such indemnity shall be deemed to include an obligation on the
part of Tenant to appear on behalf of the indemnified party in any and all
proceedings involving a claim or cause of action covered by such indemnity and
to defend the indemnified party against such claim or cause of action, all at
Tenant's cost; provided, however, at the option of any party indemnified
hereunder, such party shall have the right to appear on its own behalf, employ
its own legal counsel and defend any claim or cause of action indemnified in
this Section 5.03, all at Tenant's cost. The provisions of this Section 5.03
shall survive the termination or expiration of this Lease.
Section V.4. Alterations. Tenant shall not make any alterations, improvements,
modifications or additions to the Leased Premises or the Project without prior
written consent of Landlord. Any and all furnishing, equipping and improving of
or other alteration and addition to the Leased Premises shall be: (a) made at
Tenant's sole cost, risk and expense; (b) performed in a prompt, good and
workmanlike manner with labor
7
8
and materials of such quality as Landlord may reasonably require; (c)
constructed in accordance with all plans and specifications approved in writing
by Landlord prior to the commencement of any such work; (d) prosecuted
diligently and continuously to completion so as to minimize interference with
the normal business operations of other tenants in the Building; and (e)
performed by contractors approved in writing by Landlord. Any and all
alterations, improvements and additions (other than Trade Fixtures) to the
Leased Premises shall at once become the property of Landlord. Tenant shall
have no (and hereby waives all) rights to payment or compensation for any such
item.
Section V.5. Trade Fixtures. "Trade Fixtures" shall mean any and all items of
property placed by Tenant in the Leased Premises and used by Tenant in, upon or
about the Leased Premises for the carrying on of its business and which may or
may not be annexed to the realty by the Tenant, but in any event can be removed
without material injury to the Leased Premises, including but not limited to
signs, furniture, equipment, shelves, steel storage racking, telecommunication
equipment, computer systems, bins and machinery; provided, however, that the
term Trade Fixtures shall not include any permanent leasehold improvements,
including but not limited to any floor, wall or ceiling coverings, any interior
walls or partitions, any lighting fixtures, track lights or any property which
is a part of or associated with any electrical, plumbing or mechanical system,
notwithstanding that the same may have been installed in, upon or about the
Leased Premises. Notwithstanding anything in this Article V to the contrary,
Tenant, at its own cost and expense, may erect such Trade Fixtures on the
Leased Premises as it desires provided that (a) such Trade Fixtures do not
alter the basic character of the Leased Premises, (b) such Trade Fixtures do
not overload or damage the Leased Premises, (c) such items may be removed
without injury to the Leased Premises, and (d) the construction, erection or
installation thereof complies with all Legal Requirements and with Landlord's
specifications and requirements. Tenant shall have the right to remove at the
termination or expiration of this Lease such Trade Fixtures owned by Tenant and
so installed (other than replacements for any such items originally installed
by Landlord), provided Tenant is not in default under this Lease and such
removal is made within five (5) days after the termination or expiration of
this Lease; provided, however, Tenant shall repair any damage caused by such
removal and restore the Leased Premises to its original condition, reasonable
wear and tear excepted, subject to the provisions of Article VI.
Section V.6. Removal. Any alterations, improvements, modifications, additions
or fixtures made, installed or attached by either Landlord or Tenant to, in or
on the Leased Premises (other than as provided in Section 5.05 hereof) shall
become the property of Landlord and shall, at Landlord's election, be (a)
surrendered with the Leased Premises at the termination or expiration of this
Lease without any payment or reimbursement therefor, or (b) promptly removed by
Tenant at Tenant's expense, and Tenant shall repair any damage caused by such
removal and restore the Leased Premises to its original condition, reasonable
wear and tear excepted.
ARTICLE VI. Section VI.1. Condemnation. (a) Total Taking. In the event of a
taking or damage related to the exercise of the power of eminent domain, by any
authority, corporation or entity empowered to condemn property (including
without limitation a voluntary conveyance by Landlord in lieu of such taking or
condemnation) (individually, a "Taking") of (i) the entire Leased Premises,
(ii) so much of the Leased Premises as to prevent or substantially impair its
use by Tenant during the Term of this Lease or (iii) portions of the Building
or Project required for reasonable access to, or reasonable use of, the Leased
Premises (individually, a "Total Taking"), the rights of Tenant under this
Lease shall cease and terminate as of the date upon which title to the property
taken passes to and vests in the condemnor or the effective date of any order
for possession if issued prior to the date title vests in the condemnor ("Date
of Taking").
(b) Partial Taking. In the event of a Taking of only a part of this
Leased Premises or of a part of the Project which does not constitute a Total
Taking during the Term of the Lease (individually, a "Partial Taking"), the
rights of Tenant under this Lease and the leasehold estate of Tenant in and to
the portion of the property taken shall cease and terminate as of the Date of
Taking, and an adjustment to the Rent shall be made based upon the reduced
value of the Leased Premises.
(c) Termination by Landlord. In the event of a Taking of a portion of the
Building or Project (other than the Leased Premises), and in Landlord's
reasonable opinion, the Building or Project should be restored in a manner that
materially alters the Leased Premises, Landlord may terminate this Lease by
giving notice to Tenant within sixty (60) days following the date title vests
in the condemnor. This Lease shall terminate on the date specified in the
termination notice, which date shall be at least thirty (30) days but not more
than ninety (90) days after the date such notice is given.
(d) Rent Adjustment. If this Lease is terminated pursuant to this Section
6.01, Landlord shall refund to Tenant any prepaid unaccrued Rent and any other
sums due and owing to Tenant (less any sums then due
8
9
and owing Landlord by Tenant), and Tenant shall pay to Landlord any remaining
sums due and owing Landlord under this Lease, each prorated as of the Date of
Taking where applicable.
(e) Repair. If this Lease is not terminated as provided for in this
Section 6.01, then Landlord at its expense shall promptly repair and restore
the Project, Building and/or the Leased Premises to approximately the same
condition that existed at the time Tenant entered into possession of the Leased
Premises, wear and tear excepted (and Landlord shall have no obligation to
repair or restore Tenant's improvements to the Leased Premises or Tenant's
Property), except for the part taken, to render the Building or Project a
complete architectural unit, but only to the extent of the condemnation award
received by Landlord for the damage.
(f) Awards and Damages. Landlord reserves all rights to damages paid
because of any Partial or Total Taking of the Leased Premises or the Project.
Tenant assigns to Landlord any right Tenant may have to the damages or award.
Further, Tenant shall not make claims against Landlord or the condemning
authority for damages. Notwithstanding, Tenant may claim and recover from the
condemning authority a separate award for Tenant's moving expenses, business
dislocation damages, Tenant's Property and any other award that would not
reduce the award payable to Landlord.
Section VI.2. Force Majeure. Neither Landlord nor Tenant shall be required to
perform any term of this Lease (other than the obligations of Tenant to pay
Rent as provided herein) so long as such performance is delayed or prevented by
"Force Majeure", which shall mean acts of God, strikes, injunctions, lockouts,
material or labor restrictions by any governmental authority, civil riots,
floods, fire, theft, public enemy, insurrection, war, court order, requisition
or order of governmental body or authority, and any other cause not reasonably
within the control of Landlord or Tenant and which by the exercise of due
diligence Landlord or Tenant is unable, wholly or in part, to prevent or
overcome. Neither Landlord nor any mortgagee shall be liable or responsible to
Tenant for any loss or damage to any property or person occasioned by any Force
Majeure, or for any damage or inconvenience which may arise through repair or
alteration of any part of the Project as a result of any Force Majeure.
Section VI.3. Fire or Other Casualty. (a) Damage. If any portion of the Leased
Premises shall be destroyed or damaged by fire or any other casualty, Tenant
shall immediately give notice thereof to Landlord. If any portion of the Leased
Premises or Project shall be destroyed or damaged by fire or any other casualty
then, at the option of Landlord, (i) Landlord may restore and repair the
portion of the Leased Premises or Project damaged and, if the Leased Premises
are rendered untenantable in whole or in part by reason of such casualty as
determined by Landlord, Tenant shall be entitled to a fair diminution of the
Rent (subject to the limitations in Section 6.03(c) below) hereunder until such
time as the Leased Premises (exclusive of any of Tenant's Property or Tenant's
improvements) are made tenantable by repair or restoration as determined by an
architect's certificate or issuance of a certificate of occupancy or (ii)
Landlord may terminate this Lease whereupon all Rent accrued up to the time of
such termination and any other sums due and owing shall be paid by Tenant to
Landlord (less any sums then due and owing Tenant by Landlord) and any
remaining sums due and owing by Landlord to Tenant shall be paid to Tenant. In
no event shall Landlord have any obligation to repair or restore any such
destruction or damage.
(b) Repair. Landlord shall give Tenant written notice of its decisions,
estimates or elections under this Section 6.03 within forty-five (45) days
after any such damage or destruction; should Landlord fail to timely give such
written notice, Tenant may, by written notice to Landlord terminate this Lease.
If Landlord has elected to repair and restore the Leased Premises or other
portion of the Project, this Lease shall continue in full force and effect, and
the repairs will be made within a reasonable time thereafter (not to exceed one
hundred eighty (180) days following the casualty) subject to the provisions of
Section 6.02 of this Lease; provided, however, if at the time repair and
restoration has commenced, Landlord has delivered to Tenant an independent
architect's certificate to the effect that repair and restoration will require
longer than 180 days, then the period for repair and restoration shall be the
period so certified by the architect up to but not exceeding 270 days following
the casualty. Should the repairs not be completed within that period, both
Landlord and Tenant shall each have the option of terminating this Lease by
written letter of termination. If this Lease is terminated pursuant to Section
6.03 (a) or (b), Tenant shall be entitled to a fair and equitable diminution of
Base Rental from the date of casualty to the date of termination based on the
extent and nature of the damage, and Landlord shall refund to Tenant any
prepaid Rent (unaccrued as of the date of damage or destruction) and any other
sums due and owing by Landlord to Tenant (less any sums then due and owing
Landlord by Tenant) and any remaining sums due and owing by Tenant to Landlord
shall be paid to Landlord. If Landlord has elected to repair and reconstruct
the Leased Premises or other portion of the Project to the extent stated above,
the Term will be extended for a time equal to the period of such repair and
reconstruction. If Landlord elects to rebuild the Leased Premises or other
portion of the Project, Landlord shall (i) only
9
10
be obligated to restore or rebuild the Leased Premises or other portion of the
Project to approximately the same condition as existed at the time Tenant
entered into possession of the Leased Premises, wear and tear excepted and (ii)
not be required to rebuild, repair or replace any part of Tenant's Property or
Tenant's improvements. Notwithstanding anything contained in this Lease to the
contrary, if Landlord shall elect to repair and restore the Leased Premises or
other portion of the Project pursuant to this Section 6.03, in no event shall
Landlord be required to expend under this Article VI any amount in excess of
the proceeds actually received from the insurance carried by Landlord pursuant
to Section 6.04 of this Lease. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or destruction or the disregard of the
repair thereof.
(c) Negligence of Tenant. Notwithstanding the provisions of Sections
6.03(a) and 6.03(b) of this Lease, if the Leased Premises, the Project or any
portion thereof, are damaged by fire or other casualty resulting from the fault
or negligence of Tenant or any of Tenant's Agents, the Rent under this Lease
will not be diminished during the repair of that damage (except to the extent
covered by insurance proceeds of any rent interruption insurance maintained by
the Landlord) and Tenant will be liable to Landlord for the cost and expense of
the repair and restoration of the Leased Premises, the Project or any part
thereof, caused thereby to the extent that cost and expense is not covered by
insurance proceeds (including without limitation the amount of any insurance
deductible).
Section VI.4. Insurance. (a) Landlord shall maintain, or cause to be
maintained, at all times during Term of this Lease standard fire and extended
coverage insurance on the Project (excluding leasehold improvements by Tenant
and Tenant's Property) in amounts representing at least eighty percent (80%) of
the replacement value of the Building and improvements (excluding leasehold
improvements by Tenant). Said insurance shall be maintained with an insurance
company authorized to do business in Texas, in amounts desired by Landlord with
the same to be included in the expenses of the Project.
(b) Tenant shall, at its sole cost and expense, procure and maintain
during the Term of this Lease comprehensive general liability insurance
(including personal injury liability, premises/operation, property damage,
independent contractors and broad form contractual in support of the
indemnifications of Landlord by Tenant under this Lease) in amounts of not less
than a combined single limit of $1,000,000, business interruption insurance,
contractual liability insurance, property insurance with respect to Tenant's
Property, leasehold improvements, alterations and additions written on an "all
risk" basis for full replacement cost, worker's compensation and employer's
liability insurance and comprehensive catastrophe liability insurance, all
maintained with companies, on forms and in such amounts as Landlord may, from
time to time, reasonably require and endorsed to include Landlord as an
additional insured, with the premiums being fully paid on or before the due
dates. In the event that Tenant fails to take out or maintain any policy
required by this Section 6.04 to be maintained by Tenant, such failure shall be
a defense to any claim asserted by Tenant against Landlord by reason of any
loss sustained by Tenant that would have been covered by such policy,
notwithstanding that such loss may have been proximately caused solely or
partially by the negligence or willful misconduct of Landlord or any of
Landlord's Related Parties. If Tenant does not procure insurance as required,
Landlord may, upon advance written notice to Tenant, cause this insurance to be
issued and Tenant shall pay to Landlord the premium for such insurance within
ten (10) days of Landlord's demand, plus interest at the past due rate provided
for in Section 3.02 of this Lease until repaid by Tenant. All policies of
insurance required to be maintained by Tenant shall specifically provide that
Landlord shall be given at least ten (10) days' prior written notice of any
cancellation or nonrenewal of any such policy. A duplicate original or a
certificate evidencing the existence of each such policy shall be deposited
with Landlord by Tenant on or before the Commencement Date, and a duplicate
original or certificate of each subsequent policy shall be deposited with
Landlord at least ten (10) days prior to the expiration of the preceding such
policy. All insurance policies obtained by Tenant shall be written as primary
policies (primary over any insurance carried by Landlord), not contributing
with and not in excess of coverage which Landlord may carry, if any.
Section VI.5. Waiver of Subrogation Rights. Each party hereto waives all rights
of recovery, claims, actions or causes of actions arising in any manner in its
(the "Injured Party's") favor and against the other party for loss or damage to
the Injured Party's property located within or constituting a part or all of
the Project, to the extent the loss or damage is covered by: (i) the Injured
Party's insurance; or (ii) the insurance the Injured Party is required to carry
under this Lease, whichever is greater, regardless of the cause or origin,
including the sole, contributory, partial, joint, comparative or concurrent
negligence of the other party. This waiver also applies to each party's
directors, officers, employees, shareholders, partners, representatives and
agents. All insurance carried by either Landlord or Tenant covering the losses
and damages described in this Section 6.05 shall provide for a waiver of rights
of subrogation by the Injured Party's insurance carrier against the other
party, to the maximum extent that the same is permitted under the laws and
regulations governing the
10
11
writing of insurance within the State of Texas. Both parties hereto are
obligated to obtain such a waiver and provide evidence to the other party of
such waiver. The waiver set forth in this Section 6.05 shall be in addition to,
and not in substitution for, any other waivers, indemnities or exclusions of
liability set forth in this Lease.
ARTICLE VII. Section VII.1. Waiver of Landlord's Lien. Landlord hereby waives
any and all right which Landlord may have by virtue of this Lease, Tenant's
occupancy of the Leased Premises, or under and pursuant to or by virtue of the
application of any law, to assert a lien or security interest as against any
goods, wares, equipment, fixtures, furniture, files, improvements or other
personal property of Tenant presently or which may hereinafter be situated and
located in the Leased Premises, and Landlord further agrees to execute and
deliver an instrument providing for the waiver of such rights to the extent
requested by a financial institution involved in making a credit
accommodation(s) to Tenant.
Section VII.2. Default by Tenant. The occurrence of any one or more of the
following events shall constitute a default by Tenant under this Lease:
(a) Tenant shall fail to perform, observe or comply with any of the
terms, provisions, agreements, covenants or conditions of this Lease or any
guaranty now or hereafter executed relating to this Lease (other than the
failure specified in Section 7.02(b) hereof), such failure continuing for
twenty (20) days after written notice from Landlord to Tenant of such failure
or if the nature of the default is such that it cannot reasonably be cured or
remedied within twenty (20) days, then so long as Tenant has commenced the cure
or remedy, the cure period shall be extended for such reasonable period, up to
but not exceeding an additional twenty-five (25) days, as may be necessary to
complete the cure or remedy; provided, however, that Landlord shall not be
required to provide such notice (x) with respect to any default which is by its
nature incurable, or (y) with respect to any nonmonetary default (or
substantially similar nonmonetary default), be obligated to provide such
written notice more than two (2) times during the Term, the third such default
not requiring such notice by Landlord;
(b) Tenant shall fail to pay to Landlord any Rent or any other monetary
charge due from Tenant hereunder as and when due and payable and such failure
shall continue for a period of ten (10) days after the due date;
(c) A Transfer (hereinafter defined) shall occur of all or a part of (i)
this Lease or (ii) the Leased Premises, without the prior written approval of
Landlord;
(d) The interest of Tenant under this Lease shall be levied on under
execution or other legal process and the same has not been stayed or removed
within thirty (30) days;
(e) Any petition in bankruptcy or other insolvency proceedings shall be
filed by or against Tenant, or any petition shall be filed or other action
taken to declare Tenant a bankrupt or to delay, reduce or modify Tenant's debts
or obligations or to reorganize or modify Tenant's capital structure or
indebtedness or to appoint a trustee, receiver or liquidator of Tenant or of
any property of Tenant, or any proceeding or other action shall be commenced or
taken by any governmental authority for the dissolution or liquidation of
Tenant and in the case of any involuntary proceeding commenced against Tenant,
the same has not been dismissed within sixty (60) days;
(f) Tenant shall become insolvent, or Tenant shall make an assignment for
the benefit of creditors, or Tenant shall make a transfer in fraud of
creditors, or a receiver or trustee shall be appointed for Tenant or any of its
properties;
(g) Tenant shall desert, abandon or vacate the Leased Premises or any
substantial portion thereof unless Tenant shall continue to timely pay all Rent
due hereunder and provide Landlord with adequate security for the payment of
future Rent through the remainder of the Term; provided, however,
notwithstanding continued payment and providing for security, upon any such
desertion, abandonment or vacation of the Leased Premises, Tenant's rights
under Sections 2.04, 2.05 and 2.06 shall forthwith terminate and be of no
further force or effect;
(h) Tenant shall fail to operate its business in the Leased Premises for
more than fifteen (15) days for any reason other than destruction or
condemnation of the Leased Premises;
11
12
(i) Tenant shall do or permit to be done anything which creates a lien
upon the Leased Premises or the Project unless the same shall be removed or
bonded around with thirty (30) days; or
(j) The death or legal incapacity of Tenant, if Tenant is an individual
person, or the termination, dissolution or liquidation of Tenant, if Tenant is
a corporation, partnership or other entity.
(k) The occurrence of a default by the tenant under the Other Lease,
following any period for notice and opportunity to cure provided therein.
The term "Tenant" as used in this Section 7.02 shall be deemed to include any
guarantor of, or any other person or entity primarily or secondarily liable
for, any of the Tenant's obligations under this Lease.
Section VII.3. Landlord's Remedies. Upon the occurrence of any default by
Tenant under this Lease, Landlord may, at its sole option, have the option to
pursue any one or more of the following remedies without any notice or demand
whatsoever, other than any notice expressly provided in this Lease (and without
limiting the generality of the foregoing, except as otherwise provided herein,
Tenant hereby specifically waives notice and demand for payment of Rent or
other obligations due hereunder and waives any and all other notice or demand
requirements imposed by applicable law):
(a) Terminate this Lease, and Landlord may forthwith repossess the Leased
Premises and be entitled to recover as damages a sum of money equal to the
total of (i) the cost of recovering the Leased Premises, (ii) the cost of
removing and storing Tenant's or any other occupant's property, (iii) the
unpaid Rent and any other sums accrued hereunder at the date of termination
(including interest at the past due rate provided in Section 3.02 of this Lease
if in arrears), (iv) a sum equal to the amount, if any, by which the present
value of the total Rent and other benefits which would have accrued to Landlord
under this Lease for the remainder of the Term, if the terms of this Lease had
been fully complied with by Tenant, exceeds the total fair market value of the
Leased Premises for the balance of the Term (it being the agreement of the
parties hereto that Landlord shall receive the benefit of its bargain), (v) the
cost of restoring the Leased Premises to the condition necessary to rent the
Leased Premises at the prevailing market rental rate, normal wear and tear
excepted, (vi) any increase in insurance premiums caused by the vacancy of the
Leased Premises, (vii) the amount of any unamortized improvements to the Leased
Premises paid for by Landlord, (viii) the amount of any unamortized brokerage
commission paid by Landlord in connection with the leasing of the Leased
Premises (ix) the cost of any brokerage fees or commissions payable by Landlord
in connection with any reletting or attempted reletting; and (x) any other sum
of money or damages owed by Tenant to Landlord. The fair market value of the
Leased Premises shall be the prevailing market rental rate for similar space of
similar size in a similar building in the city where the Leased Premises is
located for a lease term equal to the remaining Term.
(b) Terminate Tenant's right of occupancy of the Leased Premises and
reenter and repossess the Leased Premises by entry, forcible entry or detainer
suit or otherwise, without demand or notice of any kind to Tenant and without
terminating this Lease, without acceptance of surrender of possession of the
Leased Premises, and without becoming liable for damages or guilty of trespass,
in which event Landlord may, but shall be under no obligation to relet the
Leased Premises or any part thereof for the account of Tenant (nor shall
Landlord be under any obligation to relet the Leased Premises before Landlord
relets or leases any other portion of the Project or any other property under
the ownership or control of Landlord) for a period equal to or lesser or
greater than the remainder of the Term of the Lease on whatever terms and
conditions Landlord, at Landlord's sole discretion, deems advisable. Tenant
shall be liable for and shall pay to Landlord all Rent payable by Tenant under
this Lease (plus interest at the past due rate provided in Section 3.02 of this
Lease if in arrears) plus an amount equal to (i) the cost of recovering
possession of the Leased Premises, (ii) the cost of removing and storing any of
Tenant's or any other occupant's property left on the Leased Premises or the
Project after reentry, (iii) the cost of decorations, repairs, changes,
alterations and additions to the Leased Premises and the Project, (iv) the cost
of any attempted reletting or reletting and the collection of the rent accruing
from such reletting, (v) the cost of any brokerage fees or commissions payable
by Landlord in connection with any reletting or attempted reletting, (vi) any
other costs incurred by Landlord in connection with any such reletting or
attempted reletting, (vii) the cost of any increase in insurance premiums
caused by the termination of possession of the Leased Premises, (viii) the
amount of any unamortized improvements to the Leased Premises paid for by
Landlord, (ix) the amount of any unamortized brokerage commission paid by
Landlord in connection with the leasing of the Leased Premises and (x) any
other sum of money or damages owed by Tenant to Landlord, all reduced by any
sums received by Landlord through any reletting of the Leased Premises;
provided, however, that in no event shall Tenant be entitled to any excess of
any sums obtained by reletting over and above Rent provided in this Lease to be
paid by Tenant to Landlord.
12
13
For the purpose of such reletting Landlord is authorized to decorate or to make
any repairs, changes, alterations or additions in or to the Leased Premises
that may be necessary. Landlord may file suit to recover any sums falling due
under the terms of this Section 7.03(b) from time to time, and no delivery to
or recovery by Landlord of any portion due Landlord hereunder shall be any
defense in any action to recover any amount not theretofore reduced to judgment
in favor of Landlord. No reletting shall be construed as an election on the
part of Landlord to terminate this Lease unless a written notice of such
intention is given to Tenant by Landlord. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate
this Lease for such previous default and/or exercise its rights under Section
7.03(a) of this Lease.
(c) Enter upon the Leased Premises and do whatever Tenant is obligated to
do under the terms on this Lease; and Tenant agrees to reimburse Landlord on
demand for any expenses which Landlord may incur in effecting compliance with
Tenant's obligations under this Lease plus fifteen percent (15%) of such cost
to cover overhead plus interest at the past due rate provided in this Lease,
and Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action. No action taken by Landlord under this
Section 7.03(c) shall relieve Tenant from any of its obligations under this
Lease or from any consequences or liabilities arising from the failure to
perform such obligations.
(d) Disconnect, discontinue, interrupt or cause the interruption of any
utility or service currently being furnished to Tenant including without
limitation gas, water, electricity, air conditioning and heating.
(e) Change all door locks and other security devices of Tenant at the
Leased Premises and/or the Project, and Tenant hereby expressly agrees that
Landlord shall not be required to affix any notice of any kind to the Leased
Premises or provide the new key to the Tenant at any hour, including Tenant's
regular business hours, until such time as Tenant has cured any and all
defaults hereunder and reimbursed Landlord for all sums due Landlord hereunder.
Landlord, on terms and conditions satisfactory to Landlord in its sole
discretion, may upon request from Tenant's employees, enter the Leased Premises
for the purpose of retrieving therefrom personal property of such employees,
provided, Landlord shall have no obligation to do so.
(f) Exercise any of the following remedies: suit on the contract, suit
for anticipatory breach and injunctive relief of all varieties.
(g) Exercise any or all other remedies available to Landlord in this
Lease, at law or in equity.
Section VII.4. No Duty to Relet or Mitigate. Notwithstanding anything contained
herein to the contrary, to the full extent permitted under applicable law,
Tenant hereby releases Landlord from any and all duty to relet the Leased
Premises or otherwise mitigate damages. Landlord shall not be liable, nor shall
Tenant's obligations hereunder be diminished, because of Landlord's failure to
relet the Leased Premises or collect rent due with respect to such reletting.
In no event shall Tenant be entitled to any excess rents received by Landlord.
In the event, and only in the event, that (despite such waiver) Texas law
requires Landlord to attempt to mitigate damages, Landlord shall use reasonable
efforts to relet the Leased Premises on such terms and conditions as Landlord
in its good faith judgment may determine; provided, however, that Landlord
shall not be obligated to relet the Leased Premises before leasing any other
unoccupied portions of the Project and any other property under the ownership
or control of Landlord.
Section VII.5. Reentry. If Tenant fails to allow Landlord to reenter and
repossess the Leased Premises, Landlord shall have full and free license to
enter into and upon the Leased Premises with or without process of law for the
purpose of repossessing the Leased Premises, expelling or removing Tenant and
any others who may be occupying or within the Leased Premises, removing any and
all property therefrom and changing all door locks of the Leased Premises.
Landlord may take these actions without being deemed in any manner guilty of
trespass, eviction or forcible entry or detainer, without accepting surrender
of possession of the Leased Premises by Tenant, and without incurring any
liability for any damage resulting therefrom including without limitation any
liability arising under Sections 93.002 and 93.003 of the Texas Property Code,
as amended or superseded from time to time, and without relinquishing
Landlord's right to Rent or any other right given to Landlord hereunder or by
operation of law or in equity.
Section VII.6. Waiver of Certain Rights. Tenant hereby expressly waives any and
all rights Tenant may have under Sections 93.002 and 93.003 of the Texas
Property Code (as amended or superseded from time to time) including without
limitation its right to (a) either recover possession of the Leased Premises or
terminate this Lease, and (b) recover from Landlord an amount equal to the sum
of its actual damages, one month's rent, and reasonable attorneys' fees, less
any delinquent rents or other sums for which Tenant is liable. Tenant
13
14
hereby waives any and all liens (whether statutory, contractual or
constitutional) it may have or acquire as a result of a breach by Landlord
under this Lease. Tenant also waives and releases any statutory lien and offset
rights it may have against Landlord, including without limitation the rights
conferred upon Tenant pursuant to Section 91.004 of the Texas Property Code, as
amended or superseded from time to time, or other applicable law.
Section VII.7. NonWaiver. Failure on the part of Landlord to complain of any
action or nonaction on the part of Tenant, no matter how long the same may
continue, shall not be deemed to be a waiver by Landlord of any of its rights
under this Lease. Further, it is covenanted and agreed that no waiver at any
time of any of the provisions hereof by Landlord shall be construed as a waiver
of any of the other provisions hereof and that a waiver at any time of any of
the provisions hereof shall not be construed as a waiver at any subsequent time
of the same provisions. The consent or approval by Landlord to or of any action
by Tenant requiring Landlord's consent or approval shall not be deemed to waive
or render unnecessary Landlord's consent or approval to or of any subsequent
similar act.
Section VII.8. Holding Over. In the event Tenant remains in possession of the
Leased Premises after the expiration or termination of this Lease without the
execution of a new lease, then Tenant, at Landlord's option, shall be deemed to
be occupying the Leased Premises as a tenant at will at a base rental equal to
150% of the greater of (a) the prevailing market base rental rate of the Leased
Premises or (b) the Base Rental, and shall otherwise remain subject to all the
conditions and provisions of this Lease insofar as the same are applicable to a
tenancy at will, including without limitation the payment of all other Rent. No
holding over by Tenant after the expiration or termination of this Lease shall
be construed to extend the Term or in any other manner be construed as
permission by Landlord to hold over. Tenant shall indemnify Landlord (y)
against all claims for damages by any other tenant to whom Landlord may have
leased any part of the Leased Premises effective upon the termination or
expiration of this Lease, and (z) for all other losses, costs and expenses,
including reasonable attorneys' fees, incurred by reason of such holding over.
Section VII.9. Attorneys' Fees and Other Expenses. In the event either party
hereto defaults in the faithful performance or observance of any of the terms
of this Lease, the party in default shall be liable for and shall pay to the
nondefaulting party all expenses incurred by such nondefaulting party in
enforcing any of its remedies for any such default, and if the non-defaulting
party places the enforcement of all or any part of this Lease in the hands of
an attorney, the party in default agrees to pay the nondefaulting party's
reasonable attorneys' fees in such connection.
Section 7.10 Abandonment of Personal Property. Any personal property left in
the Leased Premises or any personal property of Tenant left about the Project
at the expiration or termination of this Lease, the termination of Tenant's
right to occupy the Leased Premises or the abandonment, desertion or vacating
of the Leased Premises by Tenant, shall be deemed abandoned by Tenant and may,
at the option of Landlord, be immediately removed from the Leased Premises or
such other space by Landlord and stored by Landlord at the full risk, cost and
expense of Tenant. Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. In the event Tenant does not reclaim any
such personal property and pay all costs for any storage and moving thereof
within thirty (30) days after the expiration or termination of this Lease, the
termination of Tenant's right to occupy the Leased Premises or the abandonment,
desertion or vacating of the Leased Premises by Tenant, Landlord may dispose of
such personal property in any way that it deems proper. If Landlord shall sell
any such personal property, it shall be entitled to retain from the proceeds
the amount of any Rent or other expenses due Landlord, together with the cost
of storage and moving and the expense of the sale. Notwithstanding anything
contained herein to the contrary, in addition to the rights provided herein
with respect to any such property, Landlord shall have the option of exercising
any of its other rights or remedies provided in the Lease or exercising any
rights or remedies available to Landlord in the Texas Property Code, as amended
from time to time, or otherwise at law or in equity.
ARTICLE VIII. Section VIII.1. Transfers. Tenant shall not, by operation of law
or otherwise, (a) assign, transfer, mortgage or otherwise encumber all or any
part of this Lease or the Leased Premises, (b) grant any concession or license
within the Leased Premises, (c) grant or transfer any management privileges or
rights with respect to the Leased Premises, (d) sublet all or any part of the
Leased Premises or any right or privilege appurtenant to the Leased Premises
except to Xxxxxx Xxxxx Corp., (e) permit any other party to occupy or use all
or any part of the Leased Premises or (f) advertise for any of the foregoing
(collectively, a "Transfer"), without the prior written consent of Landlord. If
Tenant is other than an individual person, any conveyance, assignment or
transfer of more than a twenty-five percent (25%) interest in Tenant or any
lesser percentage which, in the opinion of Landlord, results in a change in the
effective control of Tenant, in a single transaction or a series of
transactions, shall be deemed to constitute a Transfer; provided, however, so
long as no default
14
15
remains uncured beyond any applicable grace or cure period, transfer of an
interest in Tenant to one or more partners of Tenant or shareholders of Xxxxxx
Xxxxx Corp. or members of the immediate family of any of them or a trust
created for the benefit of any such person or any entity controlled by any such
person may be effected without Landlord's consent. If Tenant requests
Landlord's consent to any Transfer, then Tenant shall provide Landlord with
documentation reasonably requested by Landlord regarding the proposed Transfer.
Tenant shall reimburse Landlord for its reasonable attorneys' fees and other
expenses incurred in connection with considering any request for its consent to
a Transfer. Landlord's consent to a Transfer shall not release Tenant from
performing its obligations under this Lease but rather Tenant's transferee
shall assume all of Tenant's obligations under this Lease in a writing
satisfactory to Landlord and Tenant, and its transferee shall be jointly and
severally liable therefor. Landlord's consent to any Transfer shall not waive
Landlord's rights as to any subsequent Transfer. While the Leased Premises or
any part thereof are subject to a Transfer, Landlord may collect directly from
such transferee all rents or other sums relating to the Leased Premises
becoming due to Tenant or Landlord and apply such rents and other sums against
the Rent and any other sums payable hereunder (in the event any such sums
received from such transferee exceed the Rent, Landlord shall have the right to
retain such excess); provided, so long as Tenant is not in default hereunder,
Landlord shall not be entitled to collect any Rent directly from Xxxxxx Xxxxx
Corp. as Subtenant. Tenant authorizes its transferees to make payments of rent
and any other sums due and payable, directly to Landlord upon receipt of notice
from Landlord to do so. Any attempted Transfer by Tenant in violation of the
terms and covenants of this Article VIII shall be void and shall constitute a
default by Tenant under this Lease. The rights of Tenant under Sections 2.04,
2.05 and 2.06 shall in no event inure to the benefit of a sublessee (other than
Xxxxxx Xxxxx Corp.) or assignee of Tenant unless specifically agreed and
consented to in writing by Landlord in connection with any such sublease or
assignment. Any proposed Transfer by Xxxxxx Xxxxx Corp. shall be subject to the
provisions of this Section 8.01.
Section VIII.2. Assignment by Landlord. Landlord shall have the right at any
time to sell, transfer or assign, in whole or in part, by operation of law or
otherwise, its interests in any part of this Lease or the Project, without the
prior consent of Tenant, and such sale, transfer or assignment shall be binding
upon Tenant. Tenant shall attorn to such purchaser, transferee or assignee,
upon such party's request, and Landlord shall be released from all liability
and obligations under this Lease.
Section VIII.3. Limitation of Landlord's Liability. Any provisions of this
Lease to the contrary notwithstanding, Tenant hereby agrees that no personal,
partnership or corporate liability of any kind or character whatsoever now
attaches or at any time hereafter under any condition shall attach to Landlord
or any of Landlord's Related Parties or any mortgagee for payment of any
amounts payable under this Lease or for the performance of any obligation under
this Lease. The exclusive remedies of Tenant for the failure of Landlord to
perform any of its obligations under this Lease shall be to proceed against the
interest of Landlord in and to the Project. The provision contained in the
foregoing sentence is not intended to, and shall not, limit any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest or any suit or action in connection with
enforcement or collection of amounts which may become owing or payable under or
on account of insurance maintained by Landlord.
ARTICLE IX. MISCELLANEOUS. Section IX.1. Subordination. This Lease shall be
subject and subordinated at all times to all ground leases and all liens of all
mortgages and deeds of trust in any amount or amounts whatsoever now or
hereafter placed on the Project or Landlord's interest or estate therein or on
or against such ground or underlying leases and to all modifications thereof.
Tenant shall execute and deliver upon demand any instruments, releases or other
documents reasonably requested by any lessor or mortgagee for the purpose of
subjecting and subordinating this Lease to such ground leases, mortgages or
deeds of trust. As of the date, hereof, neither the Project nor any part of the
Leased Premises is encumbered by the lien of any mortgage or deed of trust.
Should the Project subsequently become so encumbered, Landlord will exercise
reasonable efforts to obtain from the holder of the mortgage or deed of trust,
a nondisturbance agreement in form and substance reasonably satisfactory to
Tenant. Tenant shall attorn to any party succeeding to Landlord's interest in
the Leased Premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease or otherwise, only upon such
party's request and at such party's sole discretion but not otherwise, and
shall execute such agreements confirming such attornment as such party may
reasonably request. Tenant shall not seek to enforce any remedy it may have for
any default on the part of Landlord without first giving written notice by
certified mail, return receipt requested, specifying the default in reasonable
detail, to any mortgagee or lessor under a lien instrument or lease covering
the Leased Premises whose address has been given to Tenant, and affording such
mortgagee or lessor a reasonable opportunity to perform Landlord's obligations
hereunder. Notwithstanding the generality of the foregoing, any mortgagee or
ground lessor may at any time subordinate any such deeds of trust,
15
16
mortgages, other security instruments or ground leases to this Lease on such
terms and conditions as such mortgagee or ground lessor may deem appropriate.
Section IX.2. Estoppel Certificate or Three-Party Agreement. Tenant and
Landlord agree within ten (10) days following request by the other to execute,
acknowledge and deliver to the requesting party and any other persons specified
by such party, a certificate certifying to matters relating to the Leased
Premises and the Lease as such party may reasonably request; provided that
neither Landlord nor Tenant shall have any obligation to provide such a
certificate unless the same has been requested by the other to fulfill an
obligation to or satisfy a condition imposed by a third party.
Section IX.3. Notices. Any notice or other communication required or
contemplated by this Lease must be in writing, and may, unless otherwise in
this Lease expressly provided, be given by depositing the same in the United
States Postal Service, post-paid and certified and addressed to the party to be
notified, with return receipt requested, or by prepaid telegram or express
overnight mail service, when appropriate, addressed to the party to be
notified. Notice deposited in the mail in the manner hereinabove described
shall be effective from and after three (3) days (exclusive of Saturdays,
Sundays and postal holidays) after such deposit. Notice given in any other
manner shall be effective only if and when delivered to the party to be
notified or at such party's address for purposes of notice as set forth herein.
For purposes of notice the addresses of the parties shall, until changed as
herein provided, be as provided on the first page of this Lease. However, the
parties hereto shall have the right from time to time to change their
respective addresses by giving at least fifteen (15) days' written notice to
the other party in the manner set forth in this Section 9.03.
Section IX.4. Successors; Gender; Time. Subject to the provisions of this
Lease, and except as otherwise provided in this Lease, all covenants and
obligations as contained within this Lease shall bind and extend and inure to
the benefit of the parties hereto and their heirs, legal representatives,
successors and assigns. The pronouns of any gender shall include the other
genders, and either the singular or the plural shall include the other. Time is
of the essence with respect to this Lease.
Section IX.5. Rights and Remedies Cumulative. The rights and remedies of
Landlord under this Lease shall be nonexclusive and each right or remedy shall
be in addition to and cumulative of all other rights and remedies available to
Landlord under this Lease or at law or in equity. Pursuit of any right or
remedy shall not preclude pursuit of any other rights or remedies provided in
this Lease or at law or in equity, nor shall pursuit of any right or remedy
constitute a forfeiture or waiver of any Rent due to Landlord or of any damages
accruing to Landlord by reason of the violation of any of the terms of this
Lease.
Section IX.6. Landlord's Representations and Warranties. Landlord hereby
represents and warrants as follows:
(a) Landlord has good and indefeasible title to the Project. Landlord has
full partnership right, power and authority to enter into and execute and
deliver and perform its duties and obligations under this Lease, which when so
executed and delivered, shall be binding upon Landlord and enforceable by
Tenant in accordance with its terms, except as may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally.
(b) No written notice from any governmental body or person has been
served upon Landlord claiming any violation of any restrictive covenant, law,
ordinance, code or regulation or requiring construction, alterations or
installation on or in connection with the Leased Premises which has not been
complied with or asserting or establishing any liability or claim against
Landlord or any predecessor in interest.
(c) There are no pending, or to Landlord's actual knowledge, contemplated
or proposed eminent domain proceedings with respect to the Building or any
rights of Landlord therein.
(d) Landlord has and at the Commencement Date will have good and valid
rights of ingress and egress to and from the Building from dedicated public
street systems, and the Building is and at the Commencement Date will be
connected to, is adequately served by, and has legal use of the public sewer
lines, electric, water and other public utilities and there are no septic tanks
located on any thereof.
(e) There are no pending assessments for public improvements against the
Premises.
16
17
(f) To the best of Landlord's actual knowledge, during the period of
Landlord' ownership of the Project, (i) the Leased Premises have not been used
to generate, manufacture, refine, transport, treat, sort, handle, dispose,
transfer, produce, process or in any manner deal with hazardous materials (as
defined by any federal, state or local environmental law, ordinance, rule or
regulation) and (ii) no hazardous materials have been installed or stored on
the Leased Premises, in either case in violation of any applicable
environmental law. Neither the Landlord, nor, to the best of Landlord's actual
knowledge, any tenant, subtenant or occupant of the Leased Premises during the
period of Landlord's ownership of the Project has received any written notice
or advise from any governmental agency or any tenant, subtenant or occupant
with regard to hazardous materials on, from or affecting the Leased Premises.
For the purposes of the foregoing representation, hazardous materials shall not
include substances in quantities and concentrations which are customarily used
in the ordinary course of Landlord's or any other tenant's business so long as
such substances are and have been used and disposed of in accordance with all
applicable environmental laws.
Section IX.7. Legal Interpretation. This Lease and the rights and obligations
of the parties hereto shall be interpreted, construed and enforced in
accordance with the laws of the State of Texas and the United States. The
determination that one or more provisions of this Lease is invalid, void,
illegal or unenforceable shall not affect or invalidate any other provision of
this Lease, and this Lease shall be construed as if such invalid, illegal or
unenforceable provision had never been contained in this Lease, and, so far as
is reasonable and possible, effect shall be given to the intent manifested by
the portion held invalid or inoperative. All obligations of either party
hereunder not fully performed after the expiration or termination of the Term
of this Lease shall survive the expiration or termination of the Term of this
Lease and shall be fully enforceable in accordance with those provisions
pertaining thereto. Article and section titles and captions appearing in this
Lease are for convenient reference only and shall not be used to interpret or
limit the meaning of any provision of this Lease. No custom or practice which
may evolve between the parties in the administration of the terms of this Lease
shall waive or diminish the right of Landlord to insist upon the performance by
Tenant in strict accordance with the terms of this Lease. Tenant agrees that
this Lease supersedes and cancels any and all previous statements,
negotiations, arrangements, brochures, agreements and understandings, if any,
between Landlord and Tenant with respect to the subject matter of this Lease or
the Leased Premises and that this Lease, including written extrinsic documents
referred to herein, is the entire agreement of the parties, and that there are
no representations, understandings, stipulations, agreements, warranties or
promises (express or implied, oral or written) between Landlord and Tenant with
respect to the subject matter of the Lease or the Leased Premises. It is
likewise agreed that this Lease may not be altered, amended or extended except
by an instrument in writing signed by both Landlord and Tenant. The terms and
provisions of this Lease shall not be construed against or in favor of a party
hereto merely because such party is "Landlord" or "Tenant" hereunder or because
such party or its counsel is the draftsman of this Lease. All references to
days in this Lease and any Exhibits or Addendums hereto mean calendar days, not
working or business days, unless otherwise stated.
Section IX.8. Tenant's Authority. Tenant warrants and represents unto Landlord
that Tenant has full right, power and authority to execute, deliver and perform
this Lease and that the person executing this Lease on behalf of Tenant was
authorized to do so.
Section IX.9. Leases and Tenants. Landlord reserves the absolute right to
effect such other tenancies in the Building as Landlord, in the exercise of its
sole business judgment, shall determine to best promote the interest of the
Building. Notwithstanding anything in this Lease to the contrary, Tenant does
not rely on the fact, and Landlord does not represent, that any specific tenant
or number of tenants shall during the Term occupy any space or any particular
space in the Building, and Landlord does not represent or warrant that any
particular space will be used for any particular purpose during the Term.
Section 9.10. Joint and Several Liability. If there is more than one Tenant,
then the obligations hereunder imposed upon Tenant shall be joint and several.
If there is a guarantor of Tenant's obligations hereunder, then the obligations
hereunder imposed upon Tenant shall be the joint and several obligations of
Tenant and such guarantor, and Landlord need not first proceed against Tenant
before proceeding against such guarantor nor shall any such guarantor be
released from its guaranty for any reason whatsoever.
Section 9.11. Independent Covenants. The obligation of Tenant to pay Rent and
other monetary obligations provided to be paid by Tenant under this Lease and
the obligation of Tenant to perform Tenant's other covenants and duties under
this Lease constitute independent, unconditional obligations of Tenant to be
performed at all times provided for under this Lease, save and except only when
an abatement thereof or reduction therein is expressly provided for in this
Lease and not otherwise. Notwithstanding any of the other terms or provisions
of this Lease and notwithstanding any other circumstances whatsoever, it is the
intent
17
18
and agreement of Landlord and Tenant that so long as Tenant has not been
wrongfully evicted from the Leased Premises, the doctrine of independent
covenants shall apply in all matters relating to this Lease including, without
limitation, the obligation of Landlord to perform Landlord's covenants under
this Lease, as well as the obligation of Tenant to pay Rent and all other
monetary obligations of Tenant and perform Tenant's other covenants, duties and
obligations under this Lease.
Section 9.12. Recording. This Lease (and any Exhibits or Addendums hereto) or
memoranda hereof shall not be recorded without the prior written consent of
Landlord.
Section 9.13. Broker's Fee. Landlord and Tenant represent and warrant to each
other that no real estate commissions, finders' fees, or brokers' fees have
been or will be incurred in connection with this Lease other than a commission
payable by Landlord to Broker in an amount provided by separate agreement
between Landlord and Broker. Landlord and Tenant shall indemnify, defend and
hold each other harmless from any claim, liability, obligation, cost or expense
(including attorneys' fees and expenses) for fees or commissions relating to
this Lease asserted against either party by any broker or other person (other
than the Broker) claiming by, through or under the indemnifying party or whose
claim is based on the indemnifying party's acts.
Section 9.14. Attorney's Fees. Wheresoever Tenant is required to pay counsel
fees of Landlord, such fees shall be reasonable in amount.
Section 9.15. Non-Competition. Landlord will not, at any time that the Lease is
in force, and for five (5) years following termination thereof for whatever
reason, directly or indirectly, in any capacity or for the benefit of any
person, including Landlord, communicate with or solicit any person who is or
during the Term of the Lease becomes a customer, supplier, employee,
salesperson, agent or representative of either the Tenant or Xxxxxx Xxxxx Corp.
in an effort to obtain such person as a customer, supplier, employee,
salesperson, agent or representative of any business in competition with either
the Tenant or Xxxxxx Xxxxx Corp.; provided, however, notwithstanding the
foregoing, in no event shall Landlord be precluded from leasing space to any
person at any time in any place or soliciting any such person to become a
tenant so long as the relationship between Landlord and such person is solely
that of landlord and tenant. Landlord acknowledges and agrees that the scope
and duration of the restrictions contained in this Section 9.15 are reasonable
and necessary to protect the rights of Tenant and Xxxxxx Xxxxx Corp. sought to
be protected. Landlord further acknowledges and agrees that any breach by it of
the restrictions contained in this Section 9.15 will result in irreparable
injury to the Tenant and Xxxxxx Xxxxx Corp., which is not compensable by
monetary damages and that, in such event, either the Tenant or Xxxxxx Xxxxx
Corp. will be entitled (in addition to any other remedies available at law or
in equity and without resorting to arbitration) to the issuance of injunctive
relief, whether preliminary or permanent by a court of competent jurisdiction
enjoining Landlord, or any other person involved therein from continuing such
breach, without posting bond or other security in addition to any other
remedies they may have. Notwithstanding the foregoing, in the event that the
restrictions contained in this Section 9.15 are determined by any court of
competent jurisdiction to be unenforceable by reason of its extending over too
great a period of time or being too extensive in any other respect, it will be
interpreted to extend only over the maximum period of time for which it may be
enforceable, and to the maximum extent in all other respects as to which it may
be enforceable, all as is determined by such court in such action.
EXCEPT AS OTHERWISE PROVIDED IN THIS LEASE, LANDLORD AND TENANT EXPRESSLY
ACKNOWLEDGE AND AGREE, AS A MOVING AND MATERIAL PART OF THE CONSIDERATION FOR
LANDLORD'S ENTERING INTO THIS LEASE WITH TENANT, THAT LANDLORD HAS MADE NO
WARRANTIES TO TENANT AS TO THE USE OR CONDITION OF THE LEASED PREMISES OR THE
PROJECT, EITHER EXPRESS OR IMPLIED, AND LANDLORD AND TENANT EXPRESSLY DISCLAIM
ANY IMPLIED WARRANTY THAT THE LEASED PREMISES OR THE PROJECT ARE SUITABLE FOR
TENANT'S INTENDED COMMERCIAL PURPOSE OR ANY OTHER WARRANTY (EXPRESS OF IMPLIED)
REGARDING THE LEASED PREMISES OR THE PROJECT AND ALSO EXPRESSLY ACKNOWLEDGE AND
AGREE THAT TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE
CONDITION OF THE LEASED PREMISES OR THE PROJECT OR THE PERFORMANCE BY LANDLORD
OF ITS OBLIGATIONS HEREUNDER, AND THAT TENANT WILL CONTINUE TO PAY THE RENT
PROVIDED FOR HEREIN WITHOUT ABATEMENT, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY
BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER, EXPRESS OR IMPLIED.
TENANT EXPRESSLY WAIVES (TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW) ANY
CLAIMS UNDER FEDERAL, STATE OR OTHER LAW THAT TENANT MIGHT
18
19
OTHERWISE HAVE AGAINST LANDLORD RELATING TO THE USE, CHARACTERISTICS OR
CONDITION OF THE LEASED PREMISES OR THE PROJECT. LANDLORD AND TENANT EXPRESSLY
AGREE THAT THERE ARE NO, AND SHALL NOT BE ANY, IMPLIED WARRANTIES OF
MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER
KIND ARISING OUT OF THIS LEASE AND THAT ALL EXPRESS OR IMPLIED WARRANTIES IN
CONNECTION HEREWITH ARE EXPRESSLY DISCLAIMED AND WAIVED.
IN TESTIMONY WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
LANDLORD:
XXXXXX INCOME PROPERTIES II, LTD., a Texas
limited partnership
By: Xxxxxx Realty Investors IX, Inc., a Texas
corporation
General Partner
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: Executive Vice President
TENANT:
XXXXXX XXXXX CORP., a
Pennsylvania corporation
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
EXHIBITS:
Exhibit A - Legal Description of Site
Exhibit B - Floor Plans of Leased Premises
Exhibit C - Building Rules and Regulations
19
20
BUILDING RULES AND REGULATIONS
1. No additional locks shall be placed on the doors of the Leased
Premises by Tenant, nor shall any existing locks be changed unless Landlord is
immediately furnished with two keys to such locks. Landlord will without charge
furnish Tenant with two keys for each lock existing upon the entrance doors
when Tenant assumes possession with the understanding that at the termination
of the Lease these keys shall be returned.
2. Any alterations, additions or improvements to the Leased Premises or
other work performed therein shall be done only by contractors approved by
Landlord, such approval not to be unreasonably withheld. Tenant may from time
to time submit to Landlord for its approval a list of contractors, and
thereafter, Tenant, without any further approval from Landlord, may use any of
the contractors on the approved list. As a condition to approval, Landlord may
require any contractor to provide evidence that it has in full force and effect
insurance providing coverages, including without limitation, workmen's
compensation, general liability and motor vehicle liability insurance, and in
amounts determined by Landlord, in the exercise of its reasonable discretion,
to be adequate given the nature of work to be performed. Tenant will be
responsible for determining that any such contractor's insurance is in full
force and effect at the commencement of and during any work performed in the
Leased Premises. This provision shall apply to all work performed in the
Building including installations of telephones, telegraph equipment, electrical
devices and attachments, and installations of any nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment or any other physical
portion of building. AT&T, Southwestern Xxxx and GTE are approved contractors
and will not be required to provide evidence of insurance.
3. Third parties providing services in connection with movement in or out
of the Building of furniture, equipment and other bulky items or materials
shall be subject to approval by Landlord as provided in Section 2 above, such
approval not to be unreasonably withheld. Landlord shall have the right to
impose reasonable rules regarding the time, method and routing of movement and
limitations imposed by safety or other concerns which may prohibit any article,
equipment or any other item from being brought into the Building. Tenant is to
assume all risk as to damage to articles moved and injury to persons or public
engaged or not engaged in such movement, including equipment, property, and
personnel of Landlord if damaged or injured as a result of acts in connection
with carrying out this service for Tenant from time of entering property to
completion of work; and Landlord shall not be liable for acts of any person
engaged in, or any damage or loss to any of said property or persons resulting
from any act in connection with such service performed for Tenant.
4. No signs will be allowed in any form on windows inside or out, and no
signs except in uniform location and uniform style approved by Landlord will be
permitted in or about the Building.
5. No portion of Tenant's area or any other part of Building shall at
anytime be used or occupied as sleeping or lodging quarters.
6. No birds or animals shall be brought into or kept in or about the
Building.
7. Agents or employees of Landlord shall not receive or carry messages
for or to any Tenant or other person, nor contract with or render free or paid
services to any Tenant or Tenant's agents, employees, or invitees.
8. Landlord will not permit entrance to the Leased Premises by use of
pass keys controlled by Landlord, to any person at any time without written
permission by Tenant except agents, employees, contractors or service personnel
engaged by Landlord to perform services pursuant to the Lease.
9. None of the sidewalks, driveways, entries, passages, doors, elevators,
elevator doors, hallways or stairways shall be blocked or obstructed, or any
rubbish, litter, trash, or material of any nature placed, emptied or thrown
into these areas, or such areas be used at any time except for access or egress
by Tenant, Tenant's agents, employees or invitees.
EXHIBIT C
to
Lease Agreement
Page 1 of 2
21
10. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from Tenant's Leased Premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
11. These Rules and Regulations are in addition to, and shall not be
construed to in anyway modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of premises in the Building.
12. Landlord reserves the right to make such other and reasonable Rules
and Regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building, and for the preservation of good
order therein.
EXHIBIT C
to
Lease Agreement
Page 2 of 2
