LEASE AGREEMENT (Office)
Property: MINOL
CENTER
Tenant: AEROSPACE
INSURANCE MANAGERS, INC.
(Office)
TABLE OF
CONTENTS
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1.
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Definitions and Basic
Provisions
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1 | ||||
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2.
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Lease of Premises; Parking
Privileges
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2 | ||||
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3.
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Services by Landlord
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2 | ||||
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4.
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Adjustment of Base Rent
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3 | ||||
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5.
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Electricity
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4 | ||||
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6.
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Payments and Performance
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5 | ||||
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7.
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Installation of Improvements; ADA
Compliance
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5 | ||||
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8.
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Completion of Improvements and Commencement of
Rent
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5 | ||||
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9.
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Limited Right to Calculate Rentable Space;
Subsequent Liquidation
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6 | ||||
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10.
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Repairs and Reentry
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6 | ||||
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11.
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Alterations and Additions by
Tenant
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7 | ||||
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12.
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Entry by Landlord
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7 | ||||
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13.
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Mechanic's Liens
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7 | ||||
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14.
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Tenant’s Use
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7 | ||||
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15.
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Laws and Regulations; Rules of the
Building
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8 | ||||
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16.
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Indemnity, Liability and Loss or
Damage
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8 | ||||
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17.
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No Subrogation; Insurance
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9 | ||||
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18.
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Fire and Casualty
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9 | ||||
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19.
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Condemnation
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10 | ||||
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20.
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Relocation of Premises
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10 | ||||
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21.
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Assignment and Subletting
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10 | ||||
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22.
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Holding Over
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11 | ||||
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23.
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Abandoned Property
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12 | ||||
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24.
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Taxes
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12 | ||||
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25.
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Transfer of Landlord's
Rights
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12 | ||||
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26.
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Default
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12 | ||||
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27.
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Security Deposit
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15 |
Page
i
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28.
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Landlord's Lien and Security
Interest
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15 | ||||
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29.
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Remedies
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15 | ||||
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30.
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Joint and Several Liability
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15 | ||||
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31.
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Constructive Eviction
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15 | ||||
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32.
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Certain Rights Reserved by
Landlord
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15 | ||||
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33.
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Subordination
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16 | ||||
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34.
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Lease Certificates; Financial
Statements
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17 | ||||
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35.
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Limitation of Landlord
Liability
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17 | ||||
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36.
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Consents
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17 | ||||
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37.
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Notices
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17 | ||||
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38.
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Brokerage
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18 | ||||
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39.
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Force Majeure
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18 | ||||
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40.
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No Third Party Beneficiary
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18 | ||||
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41.
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Severability
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18 | ||||
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42.
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Binding Effect
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18 | ||||
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43.
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Applicable Law; Consent to
Jurisdiction
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18 | ||||
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44.
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Entire Agreement; No
Warranties
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18 | ||||
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45.
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NO IMPLIED REPRESENTATIONS
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19 | ||||
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46.
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Early Termination
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19 | ||||
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47.
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Effective Date
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19 |
Exhibits
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Exhibit
A:
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Legal
Description of the Land
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Exhibit
B:
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Floor
Plan(s) of the Premises
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Exhibit
C:
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Parking
Privileges
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Exhibit
D:
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Leasehold
Improvements Agreement
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Exhibit
E:
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Building
Rules and Regulations
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Riders
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1.
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Tenant’s
Option to Renew
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2.
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Tenant’s
Right of First Refusal to Lease Additional Space
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3.
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Tenant’s
Right to Expand
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4.
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Tenant’s
Option to Terminate
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5.
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Commencement
Letter
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Page
ii
(Office)
THIS LEASE AGREEMENT (this
"Lease") is entered into
by the Landlord and Tenant hereinafter named.
1. Definitions
and Basic Provisions. The terms defined below shall have the
respective meanings stated when used elsewhere in this Lease, and such terms and
the following basic provisions constitute an integral part of this
Lease:
(a) "Landlord": MINOL CENTER, L.P., a Delaware
limited partnership.
(b) "Tenant": AEROSPACE INSURANCE MANAGERS,
INC.
(c) "Premises": certain
space in Landlord's building (the "Building") located at 15280
Addison Road, in the City of Addison, Texas, on a tract of land (the "Land") situated in the City
of Addison, Texas, being described on Exhibit A
attached hereto and made a part hereof for all purposes. The Premises
are located on the 2nd floor(s) of the Building, Suite(s) 250,
as shown on the floor plan(s) attached hereto as Exhibit B and
made a part hereof for all purposes. Subject to Paragraph 9
below, the parties hereby agree that for purposes of this Lease the Premises is
deemed to contain approximately 8,219 square feet of Rentable Space (as defined
below), and that there are approximately 68,369 square feet of Rentable Space in
the Building.
(d) "Lease Term": a
period of Ninety-Two
(92) months, commencing
on the later of October 1, 2010
or upon substantial completion as evidenced by a Certificate of Occupancy
(the "Commencement
Date"). However, Tenant shall have the right to occupy the
space 2 weeks prior to commencement for purposes of moving and IT set
up. The Lease Term shall be extended pursuant to Paragraph 8
below.
(e) "Base Rent": Base
Rent per month shall be paid according to the following:
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DURATION
|
AMOUNT
|
MONTHLY TOTAL
|
||||
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Months 1
– 8
|
$ 0.00/RSF
per year
|
$ | 0.00 | |||
|
Months 9
– 68
|
$14.50/RSF
per year
|
$ | 9,931.29 | |||
|
Months 69
–92
|
$16.50/RSF
per year
|
$ | 11,301.13 | |||
Tenant
agrees to pay to Landlord at the following address: 00000 Xxxxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000 (or at such other place as Landlord may designate from
time to time in writing) in monthly installments, in advance and without demand
on the first day of each calendar month during and throughout the Lease
Term.
(f) "Prepaid
Rent": $9,931.29, representing payment of Base Rent for the
first month of the Lease Term, to be paid on the date of execution of this
Lease.
(g)
"Security
Deposit": Security Deposit shall be waived. Tenant
shall provide first month’s rent (9th month’s
rent) upon the date of execution of this Lease, and held by Landlord pursuant to
the provisions of Paragraph 27 of this Lease.
(h) "Sole Permitted
Use": General office use, consistent with a reputable office
building and subject to Paragraph 14 and other relevant provisions of this
Lease.
(i) "Base Expense
Amount": The aggregate of Operating Expenses incurred in
connection with the Building during the 2011 calendar year.
(j) "Submission
Dates": ________________________, 2010, and
______________________, 2010, as those dates are referred to the Paragraph 4 of
the Leasehold Improvements Agreement attached as Exhibit D of this
Lease.
Page
1
(k) "Allowance": $23.00 per square foot of
Rentable Space in the Premises, as used in Paragraph 10 of the Leasehold
Improvements Agreement attached as Exhibit D of this
Lease. Tenant shall have the right to use up to $6.00/RSF of the
allowance towards moving costs, wiring/cabling costs, and/or Project Management
Costs, with a maximum of
$2.50/RSF of the $6.00/RSF allowance may be used towards
furniture.
(l) "Rentable
Space": The total area attributable to a leased premises
within the Building, i.e., being deemed by the parties to be appropriate for
purposes of determining the Base Rent, the Allowance, rent adjustments, etc.
under this Lease, with such total attributed area being determined by
(a) using the American National Standard method for measuring Rentable Area
in office buildings, as described in the pamphlet entitled “Standard Method for
Measuring Floor Area in Office Buildings”, published by the Building Owners and
Managers Association International (ANSI/BOMA Z65.1-1996), and then
(b) adjusting the floor-by-floor results thus achieved by the factor being
used by Landlord to more uniformly allocate to the tenants in the Building the
first floor lobby, the elevator lobbies and the other common areas of the
Building.
(m) "Normal Business
Hours": 7:00 a.m. until 7:00 p.m. on weekdays (except
holidays, as defined below), and from 8:00 a.m. until 1:00 p.m. on Saturdays
(except holidays). For purposes of this Lease, holidays are deemed to
mean the following:
|
January
1st
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New
Years Day
|
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Last
Monday in May
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Memorial
Day
|
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July
4th
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Independence
Day
|
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First
Monday in September
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Labor
Day
|
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Fourth
Thursday in November
|
|
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plus
Friday following
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Thanksgiving
Holidays
|
|
December
25th
|
Christmas
Day
|
2. Lease of
Premises; Parking Privileges. (a) In consideration of the
obligation of Tenant to pay rent as provided in this Lease, and in further
consideration of the other terms, covenants and conditions of this Lease,
Landlord hereby leases to Tenant, and Tenant hereby takes from Landlord, the
Premises for the Lease Term specified herein, all upon and subject to the terms
and conditions set forth in this Lease. Landlord hereby covenants
that Tenant, upon paying rent as herein reserved, and performing all covenants
and agreements contained in this Lease on the part of Tenant, shall have quiet
and peaceful possession of the Premises.
(b) In
addition, at all times during the Lease Term, and conditioned upon the Lease
being in full force and effect and there being no uncured default under this
Lease by Tenant, Landlord hereby agrees to make parking privileges available to
Tenant, as explained on, and governed by, Exhibit C
attached to this Lease. In this regard, Tenant acknowledges that in
order for Landlord to be able to comply with parking allotments for all tenants
in the Building, Tenant must assure that the aggregate of all parking utilized
by Tenant, its owners, officers, employees, agents and invitees, does not exceed
the parking allotment for Tenant as specified in Exhibit C.
3. Services
by Landlord. At all times during the Lease Term, and
conditioned upon the Lease being in full force and effect and there being no
uncured default under this Lease by Tenant, Landlord shall furnish the following
services to the Premises, all of such services to be at Landlord's cost and
expense except as specifically provided to the contrary elsewhere in this
Lease:
(a) Cold
and warm water at those points of supply provided for general use of tenants in
the Building.
(b) Heated
and refrigerated air conditioning in season during Normal Business Hours
and at such temperatures and in such amounts as are reasonably considered by
Landlord to be standard and as is consistent in quality and quantity as
furnished in other comparable quality office buildings in the vicinity of the
Building. Such services at all other times and on Sundays and
holidays shall be furnished only at the request of Tenant, who shall bear the
entire cost thereof. Whenever machines or equipment that generate
abnormal heat and affect the temperature otherwise maintained by the
air conditioning system are used in the Premises, Landlord shall have the
right to install supplemental air conditioning units in the Premises; and
the cost thereof, including the cost of installation, operation, use and
maintenance, shall be paid by Tenant to Landlord promptly on
demand.
Page
2
(c) Elevator
service in common with other tenants for ingress and egress from the Premises,
provided that Landlord may reasonably limit the number of elevators to be in
operation at times other than Normal Business Hours.
(d) Janitorial
cleaning services as may, in the reasonable judgment of Landlord, be required in
the normal operation of the Building (but no less frequently than five times per
week).
(e) Electric
current in the manner and to the extent reasonably deemed by Landlord to be
standard for office use.
(f) Landlord,
at Landlord’s expense, shall provide Tenant with building monument
signage.
The
failure to any extent to furnish or any stoppage of these defined utilities and
services resulting from any cause whatsoever shall not render Landlord liable in
any respect for damages to either person, property or business, nor be construed
as an eviction of Tenant, nor entitle Tenant to any abatement of rent, nor
relieve Tenant from fulfillment of any covenant or agreement contained
herein. Should any malfunction of the Building improvements or
facilities occur for any reason, Landlord shall use reasonable diligence to
repair same promptly. Tenant shall have no claim for rebate or
abatement of rent or damages on account of such malfunction or of any
interruptions in service occasioned thereby or resulting therefrom; provided,
however, that if any interruption or cessation of service continues for seven
(7) consecutive business days after written notice from Tenant to Landlord (and
to any mortgagee of Landlord of whom Tenant has received written notice,
designating a specific address for notice to such mortgagee), identifying the
problem with reasonable specificity and being labeled "URGENT/IMMEDIATE ACTION
REQUIRED" in all capital letters, and if such interruption or cessation after
the 10-business-day cure period causes the Premises to be untenantable in the
reasonable judgment of Tenant, then notwithstanding any provision of this Lease
to the contrary, Tenant's Base Rent and Tenant's share of Operating Expenses
under this Lease will xxxxx as of the eleventh (11th) business day and continue
abated until the service is resumed.
4. Adjustment
of Base Rent. The Base Rent payable pursuant to this Lease
shall be adjusted upward from time to time in accordance with the following
provisions:
(a) Tenant's
Base Rent is based, in part, upon the assumption that Landlord is contributing
as its share of the annual Operating Expenses [as defined in Paragraph 4(e)
hereof] of the Building an amount up to the Base Expense
Amount. Tenant shall during the term of this Lease pay, as an
adjustment to Base Rent pursuant to this Lease, an amount equal to the product
of the following: (i) the excess (the "Excess"), if any, from time to
time of the Operating Expenses in the Building over the Base Expense Amount,
times (ii) a fraction, the numerator of which is the net rentable space in the
Premises and the denominator of which is the net rentable space in the
Building. Prior to the commencement of each calendar year of Tenant's
occupancy, Landlord shall make a good faith estimate of the Excess, if any, for
such upcoming calendar year and upon thirty (30) days' written notice to Tenant
shall require the monthly payment of Base Rent to be adjusted in accordance with
such estimate. Tenant's proportionate share of any such estimated
Excess shall be payable in equal monthly installments over the remaining months
of the calendar year after notice of such estimate is delivered to
Tenant. Any amounts paid based on such an estimate shall be subject
to adjustment pursuant to Paragraph 4(b) when actual Operating Expenses are
available for each calendar year.
(b) By
April 1 of each calendar year during Tenant's occupancy, or as soon
thereafter as practical, Landlord shall furnish to Tenant a statement of
Landlord's actual Operating Expenses for the previous calendar
year. If any additional Base Rent collected for a prior year, as a
result of Landlord's estimate of the Excess, is in excess of the additional Base
Rent actually due during such prior year, then Landlord shall refund to Tenant
any overpayment (or at Landlord's option, apply such amount against rents due or
to become due hereunder). Likewise, Tenant shall pay to Landlord, on
demand, any underpayment with respect to the prior year.
Page
3
(c) Tenant
shall have the right at any time within 180 days after the conclusion of a
calendar year (but not after such 180-day period and not more frequently than
once per calendar year), following prior written notice to Landlord, to audit,
at Tenant's expense, Landlord's books and records relating to Operating Expenses
for such calendar year, or at Landlord's sole discretion and expense, Landlord
will provide such audit prepared by an independent certified public
accountant.
(d) Notwithstanding
anything to the contrary contained herein, if the Building is not fully occupied
during any calendar year of the Lease Term, Operating Expenses and the Excess
for purposes of Paragraphs 4(a) and 4(b) hereof shall be determined as if
the Building had been fully occupied during such year and Operating Expenses had
been in an amount which would be normal if the Building were fully
occupied. For the purposes of this Lease, "fully occupied" shall mean
(i) occupancy of 95% of the Rentable Space in the Building if the occupancy of
the Building is less than 95% of said Rentable Space, or (ii) the actual
percentage of occupancy of the net rentable space in the Building if the
occupancy of the Building is equal to or greater than 95% of said net rentable
space.
(e) The
term "Operating Expenses" shall mean all costs, expenses and disbursements of
every kind and nature incurred or paid by Landlord in connection with the
ownership, management, operation, maintenance, repair and security of the Land,
the Building, and all other improvements on the Land and all appurtenances
thereto, including, without limitation, the costs of maintaining any common
facilities allocated from time to time to the Building, all accrued and based on
an annual period consisting of a calendar year, as determined by generally
accepted accounting principles. By way of illustration but not
limitation, Operating Expenses shall include expenditures for maintenance and
repairs; a reasonable amortization of any capital expenditures incurred by
Landlord with a principal purpose to (i) effect a reduction in the Operating
Expenses of the Building, or (ii) keep the Building in compliance with all
applicable governmental rules and regulations from time to time; assessments and
governmental charges (including non income based taxes on rents or services); ad
valorem property taxes with respect to such year; charges for electricity,
water, sewerage, and gas; cleaning, including supplies, janitorial services,
window cleaning and pest control; licenses, permits and inspection fees; refuse
collection and disposal; interior and exterior landscaping, insurance;
administrative expenses, including salaries and other reasonable expenses for
labor and management, office equipment, telephone, and supplies; management fees
payable by Landlord with respect to the Land, Building and common facilities; a
reasonable allocation of the salary and other compensation paid to Landlord's
director of engineering and/or operations; fire protection; snow and ice
removal; landscape maintenance; professional services; and security (if and to
the extent provided by Landlord, i.e., with Landlord making no representation or
warranty to Tenant in this regard). The following shall be excluded
from Operating Expenses: depreciation of the original construction of
the Building; capital expenditures other than those referenced in the previous
sentence; cost of Building alterations or renovations for other tenants in the
Building; advertising; commissions paid for leasing; cost of repairs occasioned
by fire, windstorm, or other casualty (but only to the extent reimbursed by
insurance proceeds); and wages, salaries, or other compensation paid to any
executive above the grade of building manager (i.e., with the director of
engineering and/or operations not being deemed to be included in this
proscription).
5. Electricity. (a) If
Landlord, in its reasonable discretion, believes that Tenant is consuming
substantially more electricity in the Premises than Landlord, in its reasonable
discretion, considers standard for normal office usage (whether by reason of
type of usage, hours of operation, heat generation or otherwise), Landlord may
have an electric power consumption survey conducted with respect to the Premises
by a qualified electrical engineer selected by Landlord for the purpose of
establishing as closely as reasonably possible Tenant's average monthly
consumption of electricity, which consumption shall be expressed by such
engineer in terms of kilowatt hours per month. Tenant agrees to pay
to Landlord within ten (10) days after receipt of any such monthly statement,
the amount, if any, by which (i) the product of the number of kilowatt hours
estimated by such engineer to be consumed by Tenant, multiplied by the average
rate paid by Landlord for one kilowatt hour, exceeds (ii) the product of the
number of kilowatt hours of usage that Landlord considers standard for normal
office usage for the amount of space occupied by Tenant, multiplied by the
average paid by Landlord for one kilowatt hour.
Page
4
(b)
Without Landlord's prior written consent, Tenant shall not install any equipment
in the Premises that will require any electrical current or equipment for its
use, other than that supplied by Landlord for normal office usage, and the cost
of special electrical installations approved by Landlord shall be paid by
Tenant. Notwithstanding the above, Tenant shall have the right to install
reasonable appliances throughout the premises, including, but not limited to,
microwaves, refrigerators, ice makers, and coffee makers.
6. Payments
and Performance. Tenant agrees to pay all rents and sums
provided to be paid by Tenant pursuant to this Lease at the times and in the
manner herein provided, without any setoff, deduction or counterclaim
whatsoever. Should this Lease commence on a day other than the first
day of a calendar month or terminate on a day other than the last day of a
calendar month, the rent for such partial month shall be proportionately
reduced. The Base Rent for the first partial month, if any, shall be
payable at the beginning of said period or as Prepaid Rent. The
obligation of Tenant to pay rents is an independent covenant, and no act or
circumstance whatsoever, whether such act or circumstance constitutes a breach
of covenant by Landlord or not, shall release Tenant from the obligation to pay
rents. Time is of the essence in the performance of all of Tenant's
obligations hereunder. In the event any rent or other amount payable
by Tenant under this Lease is not received within five (5) business days after
its due date for any reason whatsoever, or if any payment is by check which is
returned for insufficient funds, then in addition to the past due amount Tenant
shall pay to Landlord a late charge in an amount equal to five percent (5%) of
the amount then due., in order to compensate Landlord for its administrative and
other overhead expenses. Any such late charge shall be payable on
demand as additional rent. In addition, (i) if rent is paid by a
check which is returned for insufficient funds, Tenant shall immediately make
the required payment to Landlord in good funds; moreover, in such event Tenant
shall also pay to Landlord not only the late charge specified above in this
Paragraph 6 (i.e., if and to the extent that such dishonored check causes the
rent to become past due by more than ten days), but also an additional fee of
$250.00 to compensate Landlord for its reasonable expense and effort in
connection with the dishonored check and not otherwise included under Operating
Expenses in this Lease, and (ii) if any payment due under this Lease is not paid
within ten (10) days after the date herein specified to be paid, the amount of
such payment shall bear interest from the date such payment is due to the date
of actual payment at the rate of twelve percent (12%) per annum.
7. Installation
of Improvements; ADA Compliance. All improvements to be
installed in the Premises at the commencement of this Lease shall be installed
as specified in the Leasehold Improvements Agreement attached hereto as Exhibit D and
made a part hereof. Tenant will assure that the plans and
specifications for its improvements, as well as its business operations within
the Premises, comply with the Americans With Disabilities Act of 1990, as
amended, and all related state and local laws (collectively, the "ADA"); and Landlord agrees
that the common areas of the Building shall be in compliance with the ADA
(taking into account the fact that the Building was constructed before the
effective date of the ADA).
8. Completion
of Improvements and Commencement of Rent. If the Premises are
not ready for occupancy by Tenant on the Commencement Date of this Lease, the
obligations of Landlord and Tenant shall nevertheless continue in full force and
effect, including the obligation of Tenant to commence paying rent on the
Commencement Date stated in Paragraph 1(d); provided, however, that if the
Premises are not ready for occupancy for any reason other than Tenant's Delay
(as defined in Exhibit D), then
(i) the rent shall xxxxx and not commence until the date the leasehold
improvements to the Premises are substantially complete, and (ii) the Lease Term
shall be extended to be the number of months provided in Paragraph 1(d) above,
i.e., after the Commencement Date, as extended. Any such abatement of
rent, however, shall constitute full settlement of all claims that Tenant might
otherwise have against Landlord by reason of the Premises not being ready for
occupancy by Tenant on the Commencement Date of this
Lease. Notwithstanding the foregoing, if Tenant, with Landlord's
consent, occupies the Premises after substantial completion of Tenant's
leasehold improvements but prior to the beginning of the Lease Term set forth
herein, all of the terms and provisions of this Lease shall be in full force and
effect from the commencement of such occupancy and the Lease Term shall commence
on the date on which Tenant first occupies the Premises and shall expire the
same period of months thereafter as shown in Paragraph 1(d); no change shall
occur in the length of the Lease Term.
Page
5
9. Limited
Right to Calculate Rentable Space; Subsequent Liquidation. (a)
Landlord and Tenant agree that at any time within sixty (60) days after the date
of this Lease, either party may, at its sole expense, employ a licensed
architect to calculate the Rentable Space of the Premises and/or of the
Building. If the architect performing any such services should issue
a written statement within ninety (90) days after the date of this Lease, which
indicates that the Rentable Space specified for either the Premises or the
Building should be modified (a "Modification Statement"), and
if the other party to this Lease agrees with such Modification Statement, then
Landlord and Tenant shall execute a written Amendment to Lease confirming the
mutually agreed information and the appropriate rent adjustment which results
from the corrected information (e.g., increasing or decreasing the Base Rent
proportionate with the increase or decrease in the Rentable
Space). If the architect performing any such services should issue a
Modification Statement within ninety (90) days after the date of this Lease, and
if the other party to this Lease does not agree with such Modification
Statement, then the other party may, at its sole expense, within sixty (60) days
after the date of the Modification Statement, employ a licensed architect to
review and respond to the Modification Statement (the "Response"). If the
two architects fail to reach agreement within thirty (30) days after the date of
the Response, then they shall select a third licensed architect (either by
agreement between the two architects or, if they fail to agree on the third
architect, by requesting that the Dallas chapter of the American Institute of
Architects provide the third architect), with the fees of the third architect to
be shared equally by Landlord and Tenant. Upon agreement between the
two architects selected by the parties, or upon the final decision of the third
architect, Landlord and Tenant shall execute a written Amendment to Lease
confirming the final determination and, if necessary, the appropriate rent
adjustment; however, in no event shall the rentable square footage increase by
more than 5% of the current Premises.
(b) Notwithstanding
anything contained in this Lease to the contrary, both Landlord and Tenant
acknowledge and confirm their mutual desire to have all financial obligations
under this Lease fixed and liquidated as soon as possible so that they can
account for and plan such obligations with greater
certainty. Accordingly, the parties agree that if neither party
employs a licensed architect to perform any of the above-listed services within
sixty (60) days after the date of this Lease, or if no Modification Statement is
delivered within ninety (90) days after the date of this Lease, then the
provisions of Paragraph 9(a) shall be null and void and of no further force
or effect; and in such event (i) so that both parties to this Lease can be
assured that they will not have to expend monies for professional fees regarding
Rentable Space determinations after the deadlines established in Paragraph 9(a),
they hereby agree that the Rentable Space for the Premises and for the Building,
as specified in Paragraph 1(c) above, shall conclusively be deemed to be
applicable to this Lease; and (ii) so that both parties to this Lease can be
assured as to their financial obligations after the deadlines established in
Paragraph 9(a), they further agree that Base Rent, the Allowance, rent
adjustments and all other aspects of this Lease which are based in whole or in
part upon Rentable Space shall be deemed to be liquidated and no longer subject
to adjustment based upon inaccuracies and/or errors, if any, in the Rentable
Space determinations specified in Paragraph 1(c).
10.
Repairs
and Reentry. Tenant will not in any manner deface or injure
the Building, and will pay the cost of repairing and replacing any damage or
injury done to the Building or any part thereof by Tenant or Tenant's agents,
contractors or employees. Tenant will, at Tenant's own cost and
expense, maintain and keep the Premises and any alterations and additions
thereto in sound condition and good repair, and shall pay for the repair of any
damage or injury done to the Building or any part thereof by Tenant or Tenant's
agents, employees and invitees; provided, however, that Tenant shall make no
repairs to the Premises without the prior written consent of
Landlord. The performance by Tenant of its obligation to maintain and
make repairs shall be conducted only by contractors approved by Landlord after
plans and specifications have been approved by Landlord. Tenant will
not commit or allow any waste or damage to be committed on any portion of the
Premises, and upon the termination of this Lease by lapse of time or otherwise,
Tenant shall deliver up the Premises to Landlord in as good condition as at date
of possession, ordinary wear and tear excepted. Upon such termination
of this Lease, Landlord shall have the right to reenter and resume possession of
the Premises. Notwithstanding the foregoing provisions of this
Paragraph 10, any repairs to the Premises or the Building that are
necessitated because of any damage caused by fire or other casualty shall be
governed by the provisions of Paragraph 18 below. Landlord shall
be responsible for maintenance to the exterior, structural and common areas of
the Building.
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11. Alterations
and Additions by Tenant. Tenant shall make no alterations in
or additions to the Premises in excess of $20,000 per annum without the prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed; and all alterations, additions, and improvements made to or fixtures or
improvements placed in or upon the Premises by either party (except only
moveable trade fixtures of Tenant) shall be deemed a part of the Building and
the property of the Landlord at the time they are placed in or upon the
Premises, and they shall remain upon and be surrendered with the Premises as a
part thereof at the termination of this Lease, unless Landlord shall elect
otherwise, whether such termination shall occur by the lapse of time or
otherwise. All work done by Tenant shall be performed in a good and
workmanlike manner by a contractor approved by Landlord, in compliance with
applicable laws and at such times and in such manner as to not cause
interference with other tenants in the Building. In the event
Landlord shall elect that certain alterations, additions and improvements made
by Tenant in the Premises shall be removed by Tenant, Tenant shall remove them
and Tenant shall restore the Premises to its original condition, at Tenant's own
cost and expense, prior to the termination of the Lease
Term. Alterations and additions to the Premises will be performed by
Landlord at Tenant's cost and expense.
12. Entry by
Landlord. Landlord and its agents and representatives shall
have the right to enter into and upon any and all parts of the Premises at all
reasonable hours (or, in any emergency, at any hour) to inspect same, to clean
or make repairs or alterations or additions as Landlord may deem necessary, and
to obtain access to mechanical rooms and other Building facilities (including,
without limitation, the roof if the Premises includes the top floor of the
Building); and Tenant shall not be entitled to any abatement or reduction of
rent by reason thereof. During the period of 180 days prior to the
expiration date of this Lease, Landlord and Landlord's agents may exhibit the
Premises to prospective tenants at reasonable hours and upon reasonable prior
notice to Tenant.
13. Mechanic's
Liens. Nothing contained in this Lease shall authorize Tenant
to do any act which shall in any way encumber the title of Landlord in and to
the Premises or the Building or any part thereof; and if any mechanic's or
materialman's lien is filed or claimed against the Premises or Building or any
part thereof in connection with any work performed, materials furnished or
obligation incurred by or at the request of Tenant, Tenant will promptly pay
same or cause it to be released of record. If the lien is not
released of record and default in payment thereof shall continue for twenty (20)
days after written notice thereof from Landlord to Tenant, Landlord shall have
the right and privilege at Landlord's option of paying the same or any portion
thereof without inquiry as to the validity thereof, and any amounts so paid,
including expenses and interest, shall be repaid to Landlord immediately on
demand therefor.
14. Tenant’s
Use. Tenant will be solely responsible for obtaining all
necessary certificates (e.g., Certificate of Occupancy) and licenses necessary
for Tenant’s occupancy of the Premises and conducting its business
therein. Tenant will not occupy or use any portion of the Premises
for any purpose other than the Sole Permitted Use or for any purpose which is
unlawful or which, in the good faith judgment of Landlord, is disreputable or
which is hazardous due to risk of fire, explosion or other casualty, nor permit
anything to be done which will in any way (i) increase the rate of fire and
casualty insurance on the Building or its contents, or (ii) tend to lower the
first-class character of the Building, or (iii) create unreasonable elevator
loads or otherwise interfere with standard building operations, or (iv) affect
the structural integrity or design capabilities of the Building or any portion
thereof (e.g., a floor being occupied by Tenant). In the event that,
by reason of any act or conduct or business of Tenant, there shall be any
increase in the rate of insurance on the Building or its contents created by
Tenant's acts or conduct or business, then Tenant hereby agrees to pay Landlord
the amount of such increase on demand. Tenant will conduct its
business, and control its agents, employees, and invitees in such a manner as
not to create any nuisance or interfere with, annoy or disturb other tenants or
Landlord in the management of the Building.
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15. Laws and
Regulations; Rules of the Building. (a) Tenant at its
sole expense will maintain the Premises in a clean and healthful condition and
will comply with all laws, ordinances, orders, rules and regulations of any
governmental authority having jurisdiction over the use, conditions or occupancy
of the Premises. Without limiting the generality of the foregoing,
Tenant shall comply strictly and in all respects with the requirements of all
Hazardous Waste Laws and shall indemnify Landlord and hold Landlord harmless
from and against any liability, costs or expenses that may arise on account of
the release, discharge, storage, disposal, treatment, processing or other
handling or discovery of any Hazardous Substance within the Premises, or the
discharge, release, disposal, storage, treatment, processing or other handling
of any Hazardous Substance by Tenant, its employees, agents, contractors, or
invitees anywhere on the Land or within the Building, or off site. As
used herein, "Hazardous
Substance" means any substance, material or matter that may give rise to
liability under any Hazardous Waste Laws, including (but not limited to) medical
waste and petroleum products or petroleum wastes. "Hazardous Waste Laws" shall
mean any local, state or federal laws, rules, ordinances, regulations, and
policy and guidance statements by the Environmental Agencies, either in
existence as of the date hereof, or enacted, promulgated or issued after the
date of this Lease, that concern the management, control, discharge, treatment,
containment or removal of substances or materials that are or may become a
threat to public health or the environment.
(b) Tenant
and Tenant's agents, employees, and invitees will comply fully with all Rules
and Regulations of the Building which are attached hereto as Exhibit E and
made a part hereof as though fully set out herein. As more
particularly provided therein, Landlord shall at all times have the right to
change such rules and regulations or to amend them in such reasonable manner as
may be deemed advisable for the safety, protection, care and cleanliness of the
Building and appurtenances and for preservation of good order therein, all of
which rules and regulations, changes and amendments will be forwarded to Tenant
in writing and shall be complied with and observed by Tenant; provided, however,
that no new rules or regulations shall deprive Tenant of any rights expressly
granted to Tenant pursuant to this Lease.
(c) Tenant
shall take all reasonable steps necessary to adequately secure the Premises from
unlawful intrusion, theft, fire and other hazards, and shall keep and maintain
all security devices in or on the Premises furnished by Tenant in good working
order, including but not limited to, locks, smoke detectors and burglar alarms
and shall cooperate with Landlord and other tenants in the Building with respect
to Building security matters.
16. Indemnity,
Liability and Loss or Damage. By moving into the Premises or
taking possession thereof, Tenant accepts the Premises as suitable for the
purposes for which they are leased and accepts the Building and each and every
appurtenance thereof, and waives any and all defects therein (with the exception
of latent defects). Landlord shall not be liable to Tenant or
Tenant's agents, employees, guests, invitees or any person claiming by, through
or under Tenant for any injury to person, loss of or damage to property, or for
loss of or damage to Tenant's business, occasioned by or through the acts or
omissions of Landlord, or by any cause whatsoever except Landlord's gross
negligence or willful wrongdoing. Unless arising from or out of
Landlord's gross negligence or willful wrongdoing, Landlord shall not be liable
for, and Tenant shall indemnify Landlord and save it harmless from, all suits,
actions, damages, liability and expense in connection with loss of life, bodily
or personal injury or property damage arising from or out of any occurrence in,
upon, at or from the Premises or the occupancy or use by Tenant of the Premises
or any part thereof, or occasioned wholly or in part by any action or omission
of Tenant, its agents, contractors, employees, invitees, or
licensees. If Landlord shall, without fault on its part, be made a
party to any action commenced by or against Tenant, Tenant shall protect and
hold Landlord harmless therefrom and shall pay all costs, expenses, and
reasonable attorney's fees to Landlord incurred in connection
therewith.
Tenant
shall not be liable to Landlord or Landlord’s agents, employees, guests,
invitees or any person claiming by, through or under Landlord for any injury to
person, loss of or damage to property, or for loss of or damage to Landlord's
business, occasioned by or through the acts or omissions of Tenant, or by any
cause whatsoever except Tenant's negligence or willful
wrongdoing. Unless arising from or out of
Tenant’s negligence or willful wrongdoing, Tenant shall not be liable
for, and Landlord shall indemnify Tenant and save it harmless from, all suits,
actions, damages, liability and expense in connection with loss of life, bodily
or personal injury or property damage arising from or out of any occurrence in,
upon, at or from the Premises or the occupancy or use by Landlord of the
Premises or any part thereof, or occasioned wholly or in part by any action or
omission of Landlord, its agents, contractors, employees, invitees, or
licensees. If Tenant shall, without fault on its part, be made a
party to any action commenced by or against Landlord, Landlord shall protect and
hold Tenant harmless therefrom and shall pay all costs, expenses, and reasonable
attorney's fees to Tenant incurred in connection therewith.
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17. No
Subrogation; Insurance. (a) Tenant hereby waives any cause of
action it might have against Landlord on account of any loss or damage that is
wholly insured against under any insurance policy that covers the Premises,
Tenant's fixtures, personal property, leasehold improvements or business and
which names Tenant as a party insured. Landlord hereby waives any
cause of action it might have against Tenant because of any loss or damage that
is insured against under any insurance policy that covers the Building or any
property of Landlord used in connection with the Building and which names
Landlord as a party insured, provided that if the cost of restoring the loss or
damage exceeds the amount of property damage insurance proceeds paid to Landlord
on account of the loss or damage, Tenant shall remain liable to Landlord for the
amount of such excess.
(b) Tenant
shall procure and maintain throughout the term of this Lease a policy or
policies of insurance, at its sole cost and expense, insuring Tenant and
Landlord against any and all liability for injury to or death of a person or
persons, occasioned by or arising out of the use or occupancy of the Premises,
the limits of such policy or policies to be in an amount not less than
$1,000,000.00 with respect to injuries to or death of any one person and in an
amount of not less than $1,000,000.00 with respect to any one accident or
disaster, and shall furnish evidence satisfactory to Landlord of the maintenance
of such insurance. Tenant shall use its best efforts to obtain a
written obligation on the part of each insurance company to notify Landlord at
least 10 days prior to cancellation of such insurance. It is
recommended that Tenant carry fire and extended coverage insurance on its
personal property, as Landlord shall in no event be required to rebuild, repair
or replace any part of the furniture, equipment, fixtures and other improvements
which may have been placed by Tenant on or within the Premises.
18. Fire and
Casualty. (a) If the Premises are damaged by fire or
other casualty and if such damage is not susceptible of repair within
180 days (as estimated, as soon as reasonably practicable after the
occurrence of such damage, by an architect of recognized good reputation
selected by Landlord), then in such event this Lease, at the option of Landlord
exercised by giving reasonable written notice thereof to Tenant within 30 days
after receipt of a certificate of the architect so selected, shall terminate as
of the date of such loss, and Tenant shall pay the rent hereunder apportioned to
the time of such loss and shall pay all other undisputed obligations of Tenant
owing on the date of termination, and Tenant shall immediately surrender the
Premises to Landlord.
(b) If
the damage described above is susceptible of repair within 180 days, or if the
damage is not susceptible of repair within 180 days but Landlord fails to
exercise its option to terminate this Lease, Landlord shall enter and make the
necessary repairs without affecting this Lease, but the rent hereunder shall be
reduced or abated as shall be equitable, in the good faith judgment of Landlord,
until such repairs are made, unless such damage has been so slight that Tenant's
occupancy of the Premises is not materially interfered with, in which case the
rent hereunder shall not be abated or reduced. Notwithstanding the
foregoing, Landlord shall have the option to terminate this Lease and shall not
be obligated to repair the Premises or the Building if the damage is not covered
by insurance or if Landlord's mortgagee applies any portion of the insurance
proceeds to the unpaid balance of its loan.
(c) In
the event the Building is so badly damaged or injured by fire or other casualty,
even though the Premises may not be affected, that Landlord decides, within 90
days after such destruction, not to rebuild or repair the Building (such
decision being vested exclusively in the discretion of Landlord), then in such
event Landlord shall so reasonably notify Tenant in writing and this Lease shall
terminate as of the date of such loss, and the Tenant shall pay rent hereunder
apportioned to the date of such loss and shall pay all other undisputed
obligations of Tenant owing on the date of termination, and Tenant shall
immediately surrender the Premises to Landlord.
(d) Notwithstanding
the foregoing provisions of this Paragraph 18, Tenant agrees that if the
Premises or any other portion of the Building is damaged by fire or other
casualty resulting from the fault or negligence of Tenant or any of its agents,
employees, or invitees, then the cost of restoring the damage in excess of any
property damage insurance proceeds paid to Landlord shall be repaired at the
sole cost and expense of Tenant, and there shall be no abatement of rent before
or during the repair of such damage.
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19. Condemnation. If
all of the Premises, or so much thereof as would materially interfere with
Tenant's use of the remainder, shall be taken or condemned for any public use or
purpose by right of eminent domain, with or without litigation, or be
transferred by agreement in connection with or in lieu of or under threat of
condemnation, then the term of this Lease and the leasehold estate created
hereby shall terminate as of the date title shall vest in the condemnor or
transferee. If only a portion of the Building, but not the Premises,
is taken or condemned or transferred as aforesaid, Landlord shall have the
option to terminate this Lease effective as of the date title shall vest in the
condemnor or transferee. Landlord shall receive the entire award from
any taking or condemnation (or the entire compensation paid because of any
transfer by agreement), and Tenant shall have no claim thereto.
20. Relocation
of Premises. Intentionally Deleted.
21. Assignment
and Subletting. (a) In the event that Tenant desires to assign
or mortgage this Lease or sublet all or any part of the Premises (with the term
"sublet" being deemed, for purposes of this Paragraph 21, to include Tenant's
grant of a license, concession or other right of occupancy of any portion of the
Premises), Tenant shall notify Landlord in writing (a "Proposal Notice") and shall
state in the Proposal Notice the name of the proposed assignee, mortgagee or
sublessee and the terms of the proposed assignment, mortgage or
sublease. In the Proposal Notice Tenant shall also provide financial
information and state the nature and character of the business of the proposed
assignee, mortgage or sublessee. Notwithstanding such Proposal Notice
to Landlord, Tenant shall not assign or mortgage this Lease or any right
hereunder or interest herein, and Tenant shall not sublet the Premises in whole
or in part or grant any license, concession or other right of occupancy of any
portion of the Premises, without the prior written consent of Landlord (which,
subject to subsections (b) and (c) below, shall not be unreasonably
withheld). Subleases to any subsidiaries or affiliates of Tenant
shall not require Landlord’s consent. Any assignment, mortgage or
subletting without Landlord's consent shall be void and shall, at the sole
option of the Landlord, be deemed a breach of this
Lease. Notwithstanding any assignment, mortgage or subletting
consented to by Landlord, Tenant and each assignee shall at all times remain
fully responsible and liable for the payment of the rent herein specified and
for compliance with all of Tenant's other covenants and obligations under this
Lease. No consent to any assignment or mortgage of this Lease or any
subletting of the Premises shall constitute a waiver of the provisions of this
paragraph except as to the specific instance covered thereby. If
Tenant is a corporation or partnership, an assignment prohibited by this
Paragraph 21 shall be deemed to include one or more sales or transfers, by
operation of law or otherwise, or creation of new stock or partnership
interests, by which a majority of the voting shares of the corporation or
interests in the partnership shall be vested in a party or parties who are not
owners of a majority of the voting shares or partnership interests of Tenant as
of the date hereof; provided, however, that the foregoing provisions of this
sentence shall not be applicable if Tenant's stock is listed on a recognized
security exchange. Any transfer by operation of law shall also
constitute an assignment prohibited by this Paragraph 21. Unless
Landlord's withholding of consent is attributable primarily to a malicious
intent to injure Tenant (i.e., as opposed to a difference of opinion between
Landlord and Tenant), Landlord shall not be liable to Tenant for wrongfully
withholding its consent to an assignment or subletting under this Lease and
Tenant's sole remedy on account thereof shall be to enforce specific performance
of Landlord's obligation to consent.
(b) Landlord
and Tenant hereby agree that the granting of consent by Landlord (i.e., if such
consent is granted) shall, at a minimum, be preconditioned upon the fulfillment
of the following requirements of Landlord, as well as any other reasonable
requirements of Landlord:
(1) Landlord
shall be entitled to review Tenant's Proposal Notice for at least ten (10) days
after receiving same from Tenant;
(2) Tenant
(and to the extent applicable, any guarantor of this Lease) shall remain
primarily liable under this Lease and shall guaranty (or in the case of a
guarantor, reaffirm its guaranty of) the Lease if Landlord so
requests;
(3) Any
proposed assignee or sublessee shall assume, in a written instrument acceptable
to Landlord, all of the obligations of Tenant hereunder;
(4) No
use shall be employed in connection with the Premises other than the Sole
Permitted Use set forth in this Lease;
(5) The
Premises shall remain intact and shall not be altered in any manner whatsoever
unless Tenant and the prospective assignee or sublessee shall pay the entire
cost thereof, and Landlord's prior written approval is obtained pursuant to
Paragraph 10 above;
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(6) The
tangible net worth of the proposed subtenant/assignee must be reasonably
sufficient for the obligations under this Lease;
(7) Any
use of the Premises permitted hereunder by the proposed sublessee/assignee must
not (i) violate or create any potential violation of any laws, nor
(ii) violate any other agreements affecting the Premises, the Building or
Landlord, nor (iii) increase by more than 5% the density of employees
and/or other persons using the Premises from the density maintained by
Tenant;
(8) The
proposed subtenant/assignee will not create traffic congestion or an
unreasonable burden on existing parking or elevators;
(9) Tenant
shall pay any and all reasonable attorney's fees or other costs associated with
Landlord's review and approval of a prospective assignee or sublessee, not to
exceed $500.00;
(10) No
assignment or sublease shall be to a person or entity with whom Landlord is then
negotiating, has negotiated with within the previous six months or currently is
a tenant within the Building.
(c) Notwithstanding
anything contained above in this Paragraph 21, Tenant agrees that after
Landlord receives a Proposal Notice from Tenant, then in addition to the rights
granted to Landlord in subsections (a) and (b) immediately above, Landlord shall
also be entitled to terminate this Lease; moreover, in the event of a proposed
sublease, Landlord shall also be entitled either to terminate this Lease as to
only the subject of the sublease (with all remaining portions of the Premises to
remain subject to this Lease, prorated as appropriate to account for a smaller
Premises), or, as a further option, to become Tenant's subtenant under the same
terms and conditions as were set forth in the Proposal Notice. The
options granted to Landlord pursuant to this subsection (c) are cumulative with
the rights granted to Landlord pursuant to subsections (a) and (b) of this
Paragraph 21.
(d) In
the event of a sublease approved by Landlord where the monthly rent per square
foot of space subleased which is payable by any sublessee to Tenant (including
any bonuses or any other consideration paid directly or indirectly by the
sublessee to Tenant) exceeds the monthly rent per square foot for the same space
payable for the same month by Tenant to Landlord, Tenant shall be obligated to
pay fifty percent (50%) of the amount of such excess to Landlord as additional
rent hereunder within twenty (20) days after it is received by Tenant from the
sublessee. In the event of an assignment approved by Landlord where
Tenant receives any consideration from an assignee other than the assumption by
the assignee of Tenant's obligations hereunder, Tenant shall be obligated to pay
the amount of such consideration to Landlord as additional rent hereunder within
twenty (20) days after the date it is received by Tenant. Landlord,
at Landlord's option, may elect to require that rent payable by any sublessee be
paid directly to Landlord and offset Tenant's rent obligations
accordingly.
22. Holding
Over. Should Tenant continue to hold the Premises after this
Lease terminates, whether by lapse of time or otherwise, such holding over
shall, unless otherwise agreed by Landlord in writing, constitute and be
construed as a tenancy at will at a daily rent equal to one-thirtieth (1/30) of
an amount equal to 150% of the amount of the monthly rent payable during the
last month prior to the termination of this Lease, and upon and subject to all
of the other terms and provisions set forth herein except any right to renew
this Lease. This provision shall not be construed, however, as
permission by Landlord for Tenant to hold over.
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23. Abandoned
Property. All personal property of Tenant remaining in the
Premises after the expiration of the Lease Term or after the abandonment of the
Premises by Tenant may be treated by Landlord as having been abandoned by
Tenant, and Landlord shall have the right to remove such personal property from
the Premises without any obligation to deliver such personal property to Tenant
and without any liability to Tenant whatsoever, it being agreed that Tenant
shall have no right to reclaim such property. Landlord shall have no
duty to notify Tenant that Landlord may dispose of Tenant's
property. Tenant shall be presumed conclusively to have abandoned the
Premises if the amount of Tenant's property removed or being removed by Tenant
from the Premises is substantial enough to indicate a probable intent to abandon
the Premises, and such removal is not within the normal course of Tenant's
business, or if Tenant removes or is removing any material amount of Tenant's
personal property from the Premises at a time when Tenant is in default in the
payment of rent due hereunder and such removal is not within the normal course
of Tenant's business. Nothing contained in this paragraph shall
prejudice or impair Landlord's rights as a lienholder and secured party under
Paragraph 28 hereof, and the rights granted to Landlord under this
paragraph shall be cumulative of its rights as a lienholder and secured
party.
24. Taxes. (a)
Tenant shall be liable for all taxes levied or assessed against all personal
property, furniture and fixtures placed by Tenant, or on Tenant’s behalf, in the
Premises. If any such taxes for which Tenant is liable are levied or
assessed against Landlord or Landlord's property and if Landlord elects to pay
the same or if the assessed value of Landlord's property is increased by
inclusion of personal property, furniture or fixtures placed by Tenant in the
Premises, and Landlord elects to pay the taxes based on such increase, Tenant
shall pay Landlord upon demand that part of such taxes for which Tenant is
primarily liable hereunder.
(b) Tenant
agrees that, as between Tenant and Landlord, Landlord has the sole and absolute
right to contest taxes levied against the Premises and the Building (other than
taxes levied directly against Tenant’s personal property within the
Premises). Accordingly, Tenant, to the maximum extent permitted by
law, irrevocably waives any and all rights that Tenant may have to receive from
Landlord a copy of notices received by Landlord regarding the appraisal or
reappraisal, for tax purposes, of all or any portion of the Premises or the
Building (including, without limitation, any rights set forth in §41.413 of the
Texas Property Tax Code, as such section may be amended and/or supplemented from
time to time). Additionally, Tenant, to the maximum extent permitted
by law, hereby assigns to Landlord any and all rights of Tenant to protest or
appeal any governmental appraisal or reappraisal of the value of all or any
portion of the Premises or the Building (including, without limitation, any
rights set forth in §41.413 and §42.015 of the Texas Property Tax Code, as such
sections may be amended and/or supplemented from time to time). To
the maximum extent permitted by law, Tenant agrees that it will not protest or
appeal any such appraisal or reappraisal before a governmental taxing authority
without the express written authorization of Landlord.
25. Transfer
of Landlord's Rights. In the event Landlord transfers its
interest in the Building, Landlord shall thereby be released from any further
obligations hereunder, and Tenant agrees to look solely to the successor in
interest of the Landlord for the performance of such
obligations.
26. Default. (a)
The following events shall be deemed to be events of default by Tenant under
this Lease: (i) Tenant shall fail to pay any rent or other sums
payable by Tenant hereunder as and when such rent or other sums become due and
payable and any such failure shall continue for a period of ten (10) business
days after written notice from Landlord to Tenant (provided, however, that if in
any calendar year Landlord has given at least two written notices of rent
defaults to Tenant, then for the remainder of that particular calendar year the
grace period shall be reduced to five days); (ii) Tenant shall fail to
comply with any other material provision, condition or covenant of this Lease
and any such failure shall continue for a period of twenty (20) business days
after Landlord gives written notice thereof to Tenant (or, in the case of
Tenant's failure to comply with or observe any other single material provision
of this Lease more than three (3) times during the Lease Term, upon the
occurrence of the fourth and all subsequent such
failures); (iii) any petition shall be filed by or against
Tenant or any guarantor of Tenant's obligations under this Lease pursuant to any
section or chapter of the present federal Bankruptcy Act or under any future
federal Bankruptcy Act or under any similar law or statute of the United States
or any state thereof, or Tenant or any guarantor of Tenant's obligations under
this Lease shall be adjudged bankrupt or insolvent in proceedings filed under
any section or chapter of the present federal bankruptcy act or under any future
federal bankruptcy act or under any similar law or statute of the United States
or any state thereof; (iv) Tenant or any guarantor of Tenant's obligations
under this Lease shall become insolvent or make a transfer in fraud of
creditors; (v) Tenant or any guarantor of this Lease shall make an
assignment for the benefit of creditors; or (vi) a receiver or trustee
shall be appointed for Tenant or any of the assets of Tenant or any guarantor of
this Lease or any of the assets of such guarantor.
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(b) Upon
the occurrence of any event of default, Landlord shall have the option to do any
one or more of the following without any further notice or demand,
in addition to and not in limitation of any other remedy permitted by law
or by this Lease:
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(1)
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Landlord
may enforce, by all legal suits and other means, its rights hereunder,
including the collection of Base Rent and any other sums payable by Tenant
hereunder, without reentering or resuming possession of Premises and
without terminating this Lease.
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(2)
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Landlord
may do whatever Tenant is obligated to do by the provisions of this Lease;
and to the extent that Landlord deems it necessary or otherwise
appropriate for Landlord to enter the Premises, Landlord or its agents or
employees may enter the Premises, by force if necessary (but only if and
to the extent permitted by law), in order to accomplish this purpose and
such entry and performance shall not terminate this Lease or constitute an
eviction of Tenant. Tenant agrees to reimburse Landlord
immediately upon demand for any expenses, which Landlord may incur in thus
effecting compliance with this Lease on behalf of
Tenant. Notwithstanding anything to the contrary contained
herein or in Section 93.002 of the Texas Property Code, Landlord may
exercise any and all of its rights and remedies under this Lease following
a default by Tenant without compliance with Section 93.002 of the Texas
Property Code, the benefits of which are hereby expressly waived by
Tenant.
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(3)
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Landlord
may enter upon and take possession of the Premises without terminating
this Lease and expel or remove Tenant and its effects therefrom, and
Landlord may relet the Premises for the account of
Tenant. Tenant shall pay to Landlord all arrearages of Base
Rent and other sums due and owing by Tenant to Landlord, and Tenant shall
also pay to Landlord during each month of the unexpired Lease Term the
installments of Base Rent and other sums due hereunder, less such part, if
any, that Landlord shall have been able to collect from a new tenant upon
reletting. In this regard the parties further agree that although Landlord
shall use its reasonable efforts to relet the Premises after Tenant has
vacated the Premises, Landlord shall have no obligation to agree to any
lease terms which it deems to be unacceptable, nor shall Landlord be
obligated (i) to travel outside a radius of thirty (30) miles from its
principal office in order to meet with a prospective tenant, (ii) to
accept a prospective tenant for the Premises (or any portion thereof)
which is an existing or prospective tenant elsewhere in the Building, or
(iii) to expend monies for finish-out requested by a prospective tenant or
incur an obligation to pay any broker's commission unless Landlord, in its
sole and absolute discretion, approves both the lease terms and the credit
of such prospective tenant. Tenant further agrees that in the
event of any reletting, Tenant shall pay to Landlord on demand all
Reimbursable Costs prescribed in the final portion of this Paragraph
26. In the event Landlord exercises the rights and remedies
afforded to it under this Paragraph 26(b)(3) and then subsequently elects
to terminate this Lease, Tenant shall be liable to Landlord for damages as
set forth in the final two sentences of Paragraph 26(b)(5) below and
Landlord shall have the right at any time to demand final settlement as
provided therein.
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(4)
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Landlord
may, as allowed by law, enter upon the Premises by use of a duplicate key,
a master key, an electronic pass card, a locksmith's entry procedures or
any other means not involving personal confrontation, and change, alter or
modify the door locks on all entry doors of the Premises, thereby
excluding Tenant and its agents, employees, representatives and invitees,
from the Premises. In such event Landlord shall not be
obligated to place any written notice on the Premises explaining
Landlord's action; moreover, Landlord shall not be required to provide the
new key (if any) to Tenant until and unless all rent defaults of Tenant
have been fully cured.
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Page
13
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(5)
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Landlord
may terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, but if Tenant shall fail to do so,
Landlord may without notice and without prejudice to any other remedy
Landlord may have, enter upon and take possession of the Premises and
carefully expel or remove Tenant and its effects without being liable to
prosecution; and upon any such termination, Tenant agrees that in addition
to its liability for the payment of arrearages of Base Rent and other sums
due and owing by Tenant to Landlord under this Lease upon such
termination, Tenant shall be liable to Landlord for
damages. Tenant shall pay to Landlord as damages on the same
days as Base Rent and other payments are expressed to be due under the
provisions of this Lease, the total amount of such Base Rent and other
payments, less such part, if any, of such payments that Landlord shall
have been able to collect from a new tenant upon reletting. In
this regard the parties further agree that although Landlord shall use its
reasonable effort to relet the Premises after Tenant has vacated the
Premises, Landlord shall have no obligation to agree to any lease terms
which it deems to be unacceptable, nor shall Landlord be obligated (i) to
travel outside a radius of thirty (30) miles from its principal office in
order to meet with a prospective tenant, (ii) to accept a prospective
tenant for the Premises (or any portion thereof) which is an existing or
prospective tenant elsewhere in the Building, or (iii) to expend monies
for finish-out requested by a prospective tenant or incur an
obligation to pay any broker's commission unless Landlord, in its sole and
absolute discretion, approves both the lease terms and the credit of such
prospective tenant. Tenant further agrees that in the event of
any reletting, Tenant shall pay to Landlord on demand all Reimbursable
Costs prescribed in the final portion of this Paragraph
26. Landlord shall have the right at any time to demand final
settlement. Upon demand for a final settlement, Landlord shall
have the right to receive, and Tenant hereby agrees to pay, as damages for
Tenant's breach and in addition to the Reimbursable Costs prescribed in
the final section of this Paragraph 26, the difference between the total
rent provided for in this Lease for the remainder of the Lease Term and
the reasonable rental value of the Premises for such period, such
difference to be discounted to present value at a rate equal to the rate
of interest allowed by law (at the time the demand for final settlement is
made) when the parties to a contract have not agreed on any particular
rate of interest (or, in the absence of such law, at the rate of 6% per
annum).
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Pursuit
of any of the foregoing remedies shall not preclude pursuit of any of the other
remedies herein provided or any other remedies provided by law or
equity. Any entry by Landlord upon the Premises may be by use of a
master or duplicate key or electronic pass card or any locksmith's entry
procedure or other peaceable means. Any reletting by Landlord shall
be without notice to Tenant, and if Landlord has not terminated this Lease, the
reletting may be in the name of Tenant or Landlord, as Landlord shall
elect. Any reletting shall be for such term or terms (which may be
greater or less than the period which constitutes the balance of the Lease Term)
and on such terms and conditions (which may include free rent, rent concessions
or tenant inducements of any nature) as Landlord in its absolute discretion may
determine, and Landlord may collect and receive any rents payable by reason of
such reletting. In the event of any reletting, Tenant shall pay to
Landlord on demand the reasonable cost of renovating, repairing
and altering the Premises for a new tenant or tenants, and the
reasonable cost of advertisements, brokerage fees, reasonable attorney's fees
and other reasonable costs and expenses incurred by Landlord in connection with
such reletting (the “Reimbursable
Costs”). In the event any rents actually collected by Landlord
upon any such reletting for any calendar month are in excess of the amount of
rent payable by Tenant under this Lease for the same calendar month, the amount
of such excess shall belong solely to Landlord, and Tenant shall have no right
with respect thereto (except, however, same shall be applied to Tenant's
deficiency, if any). In the event it is necessary for Landlord to
institute suit against Tenant in order to collect the rent or any other sum due
hereunder or any deficiency between the rent and any other sum provided for by
this Lease for a calendar month and the rent and any other sum actually
collected by Landlord for such calendar month, Landlord shall have the right to
allow such deficiency to accumulate and to bring an action upon several or all
of such rent deficiencies at one time. Any suit shall not prejudice
in any way the right of Landlord to bring a similar action for any subsequent
rent deficiency or deficiencies.
Page
14
27. Security
Deposit. The Security Deposit shall be held by Landlord
without liability for interest and as security for the performance by Tenant of
Tenant's covenants and obligations under this Lease, it being expressly
understood that the Security Deposit shall not be considered an advance payment
of rent or a measure of Landlord's damages in case of default by Tenant upon the
occurrence of any event of default by Tenant or upon termination of this
Lease. Landlord may commingle the Security Deposit with Landlord's
other funds. Landlord may, from time to time, without prejudice to
any other remedy, use the Security Deposit to the extent necessary to make good
any arrearages of rent or to satisfy any other covenant or obligation of Tenant
hereunder. Following any such application of the Security Deposit,
Tenant shall pay to Landlord on demand the amount so applied in order to restore
the Security Deposit to its original amount. If Tenant is not in
default at the termination of this Lease, the balance of the Security Deposit
remaining after any such application shall be returned by Landlord to
Tenant. If Landlord transfers its interest in the Premises during the
term of this Lease, Landlord may assign the Security Deposit to the transferee
and thereafter shall have no further liability for the return of such Security
Deposit.
28. Landlord's
Lien and Security Interest. Intentionally
Deleted.
29. Remedies. No
act or thing done by Landlord or its agents during the term hereof shall be
deemed an acceptance of an attempted surrender of the Premises, and no agreement
to accept a surrender of the Premises shall be valid unless made in writing and
signed by Landlord. No reentry or taking possession of the Premises
by Landlord shall be construed as an election on its part to terminate this
Lease, unless a written notice of such intention is given to
Tenant. Notwithstanding any such reletting or reentry or taking
possession, Landlord may at any time thereafter elect to terminate this Lease
for a previous default. Landlord's acceptance of rent following an
event of default hereunder shall not be construed as Landlord's waiver of such
event of default. No waiver by Landlord of any violation or breach of
any of the terms, provisions and covenants herein contained shall be deemed or
construed to constitute a waiver of any other violation or breach of any of the
terms, provisions and covenants herein contained. Forbearance by
Landlord to enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of any other
violation or default. The failure of Landlord to enforce the rules
described in Paragraph 15 against Tenant or any other tenant in the
Building shall not be deemed a waiver of any such rules. No
provisions of this Lease shall be deemed to have been waived by Landlord unless
such waiver is in writing and is signed by Landlord. The rights
granted to Landlord in this Lease shall be cumulative of every other right or
remedy which Landlord may otherwise have at law or in equity, and the exercise
of one or more rights or remedies shall not prejudice or impair the concurrent
or subsequent exercise of other rights or remedies. If Landlord
brings any action under this Lease, or consults or places this Lease or any
amount payable by Tenant hereunder with an attorney for the enforcement of any
of Landlord's rights hereunder, then Tenant agrees to pay to Landlord the
reasonable attorney's fees and other costs and expenses incurred by Landlord in
connection therewith.
30. Joint and
Several Liability. If there are two or more parties comprising
Tenant, the obligations imposed upon Tenant pursuant to this Lease shall be
joint and several. If there is a guarantor of Tenant's obligations
under this Lease, the obligations of Tenant shall be joint and several
obligations of Tenant and such guarantor, and Landlord need not first proceed
against Tenant hereunder before proceeding against such guarantor; nor shall any
such guarantor be released from its guarantee for any reason whatsoever,
including, without limitation, any amendment of this Lease, any forbearance by
Landlord or waiver of any of Landlord's rights, the failure to give Tenant or
such guarantor any notices, or the release of any party liable for the payment
of Tenant's obligations hereunder.
31. Constructive
Eviction. Tenant shall not be entitled to claim a constructive
eviction from the Premises unless Tenant shall have first notified Landlord in
writing of the condition or conditions giving rise thereto, and, if the
complaints be justified, unless Landlord shall have failed to remedy such
conditions within a reasonable time after receipt of said notice.
32. Certain
Rights Reserved by Landlord. Landlord shall have the following
rights:
Page
15
(a) To
decorate and to make inspections, repairs, alterations, additions, changes, or
improvements, whether structural or otherwise, in and about the Building, or any
part thereof; for such purposes, to change, alter, relocate, remove or replace
service areas and common areas, to place, inspect, repair and replace in the
Premises (below floors, above ceilings and/or next to columns) utility lines,
pipes, cables, conduits and the like to serve other areas of the Building
outside the Premises, to enter upon the Premises after providing Tenant with at
least two (2) business days' advance written notice thereof and, during the
continuance of any such work, to temporarily close doors, entryways, public
space, and corridors in the Building; to interrupt or temporarily suspend
Building services and facilities; and to change the arrangement and location of
entrances or passageways, doors, and doorways, corridors, elevators, stairs,
restrooms, or other public parts of the Building; provided, however, that in
connection with any of the foregoing, Landlord will use commercially reasonable
efforts to minimize the disruption to Tenant's use and occupancy of the
Premises;
(b) To
take such reasonable measures as Landlord deems advisable for the security of
the Building and its occupants; evacuating the Building for cause, suspected
cause, or for drill purposes; temporarily denying access to the Building; and
closing the Building after Normal Business Hours and on Saturdays, Sundays, and
holidays, subject, however, to Tenant's right to enter when the Building is
closed after Normal Business Hours under such reasonable regulations as Landlord
may prescribe from time to time which may include by way of example, but not of
limitation, that persons entering or leaving the Building, whether or not during
Normal Business Hours, identify themselves to a security officer by registration
or otherwise and that such persons establish their right to enter or leave the
Building;
(c) To
enter the Premises at all reasonable hours to show the Premises (after at least
24 hours' advance notice and subject to further limitation set forth below) to
prospective purchasers, lenders, or tenants; provided, however, that with
respect to prospective tenants interested in leasing some or all of the
Premises, Landlord shall only have the right to enter the Premises to show the
same to such parties during the last 12 months of the Term after giving Tenant
at least 24 hours' advance notice thereof and then only so long as Tenant has
not exercised its right to renew and extend the initial Term of this Lease or
any renewal and/or extension thereof;
(d) To
prohibit the preparation of food within the Premises for commercial purposes or
the placing of vending or dispensing machines of any kind in or about the
Premises if such vending or dispensing machines are available to the general
public;
(e) To
change the name by which the Building is designated, and Landlord shall have no
obligation or liability whatsoever for costs or expenses incurred by Tenant as a
result of such name change of the Building; and
(f) To
designate the Building, including the Premises, as a "non-smoking"
facility. Landlord shall designate specific areas on the Land,
outside the Building, where smoking shall be permitted. Upon receipt
from Landlord of such designation, Tenant agrees to abide by, and to instruct
its agents, employees, contractors and invitees to abide by, such
designation.
33. Subordination. This
Lease and all rights of Tenant hereunder are subject and subordinate to any
deeds of trust, mortgages or other instruments of security which do now or may
hereafter cover the Building and the Land or any interest of Landlord therein,
and to any and all advances made on the security thereof, and to any and all
increases, renewals, modifications, consolidations, replacements and extensions
of any of such deeds of trust, mortgages or instruments of
security. This provision is hereby declared by Landlord and Tenant to
be self-operative and no further instrument shall be required to effect such
subordination of this Lease. Tenant shall, however, upon demand at
any time or times execute, acknowledge and deliver to Landlord any and all
instruments and certificates that, in the judgment of Landlord, may be necessary
or proper to confirm or evidence such subordination, and Tenant hereby
irrevocably appoints Landlord as Tenant's agent and attorney-in-fact for the
purpose of executing, acknowledging and delivering any such instruments and
certificates. However, notwithstanding the generality of the
foregoing provisions of this Paragraph 33, Tenant agrees that any such
mortgagee shall have the right at any time to subordinate any such deeds of
trust, mortgages or other instruments of security to this Lease on such terms
and subject to such conditions as such mortgagee may deem appropriate in its
discretion. Tenant further covenants and agrees upon demand by
Landlord's mortgagee at any time, before or after the institution of any
proceedings for the foreclosure of any such deeds of trust, mortgages or other
instruments of security, or sale of the Building pursuant to any such deeds of
trust, mortgages or other instruments of security or voluntary sale, to attorn
to such purchaser upon any such sale and to recognize and attorn to such
purchaser as Landlord under this Lease. The agreement of Tenant to
attorn upon demand of Landlord's mortgagee contained in the immediately
preceding sentence shall survive any such foreclosure sale or trustee's
sale. Tenant hereby agrees to execute, acknowledge and deliver to
Landlord's mortgagee any and all instruments and certificates that in the
judgment of Landlord's mortgagee may be necessary or proper to confirm or
evidence such attornment, and Tenant hereby irrevocably appoints Landlord's
mortgagee as Tenant's agent and attorney-in-fact for the purpose of executing,
acknowledging and delivering any such instruments and certificates.
Page
16
34. Lease
Certificates; Financial Statements. Tenant agrees to
furnish from time to time, within ten (10) business days after requested by
Landlord and no more than 1 time per 12 month period, a certificate signed by
Tenant and addressed to Landlord — or at Landlord's direction to any potential
successor to Landlord or any existing or potential holder of a deed of trust or
mortgage covering the Land and Building or any interest of Landlord therein — to
the effect that this Lease is then presently in full force and effect and
specifying any modifications; that the term of this Lease has commenced and the
full rent is then accruing hereunder; that Tenant has accepted possession of the
Premises and that any improvements required by the terms of this Lease to be
made by Landlord have been completed to the satisfaction of Tenant; that no rent
under this Lease has been paid more than thirty (30) days in advance of its due
date; that the address for notices to be sent to Tenant is as set forth in this
Lease; that Tenant, as of the date of such certificate, has no charge, lien or
claim of offset under this Lease or otherwise against rents or other charges due
or to become due hereunder; and that to the knowledge of Tenant, Landlord is not
then in default under this Lease. The certificate shall also contain
an acknowledgment by Tenant of receipt of notice of the assignment of this Lease
to such holder and the agreement by Tenant with such holder that from
and after the date of such certificate, Tenant will not pay any rent under this
Lease more than 30 days in advance of its due date, will not surrender or
consent to the modification of any of the terms of this Lease nor to the
termination of this Lease by Landlord, and will not seek to terminate this Lease
by reason of any act or omission of Landlord until Tenant shall have given
written notice of such act or omission to the holder of such deed of trust or
mortgage (at such holder's last address furnished to Tenant) and until a
reasonable period of time shall have elapsed following the giving of such
notice, during which period such holder shall have the right, but shall not be
obligated, to remedy such act or omission; provided, however, that if Tenant's
certificate is executed before the assignment of Landlord's interest in the
Lease to such holder, then the agreement of Tenant described in this sentence
will be of no effect under such certificate unless Tenant is furnished with a
copy of the assignment to such holder within ninety (90) days after the date of
such certificate.
35. Limitation
of Landlord Liability. The liability of Landlord to Tenant for
any default by Landlord under the terms of this Lease shall be limited to the
interest of Landlord in the Building and the Land, and Landlord shall not be
personally liable for any deficiency. This clause shall not be deemed
to limit or deny any remedies, which Tenant may have in the event of default by
Landlord hereunder which do not involve the personal liability of
Landlord. Notwithstanding anything to the contrary contained in this
Lease, in the event Landlord sells, assigns, transfers or conveys its interest
in the Land, Landlord shall have no liability for any acts or omissions arising
out of Tenant’s use or occupancy of the Premises that occur after the date of
said sale, assignment, transfer or conveyance.
36. Consents. In
all circumstances under this Lease where the prior consent of one party (the
"consenting party"), whether it be Landlord or Tenant, is required before the
other party (the "requesting party") is authorized to take any particular type
of action, such consent shall not be withheld in a wholly unreasonable and
arbitrary manner; however, the requesting party agrees that its exclusive remedy
if it believes that consent has been withheld improperly (including, but not
limited to, consent required from Landlord pursuant to Paragraph 11 or Paragraph
21 of this Lease) shall be to institute litigation either for a declaratory
judgment or for a mandatory injunction requiring that such consent be given
(with the requesting party hereby waiving any claim for damages, attorneys fees
or any other remedy unless the consenting party refuses to comply with a court
order or judgment requiring it to grant its consent).
37. Notices. Any
notice required or permitted to be given hereunder by one party to the other
shall be deemed to be given when deposited in the United States mail, certified
or registered mail, return receipt requested, with sufficient postage prepaid,
or hand delivered, addressed to the respective party to whom notice is intended
to be given at the address of such party set forth below its name where it has
executed this Lease. Either party hereto may at any time by giving
written notice to the other party in the aforesaid manner designate any other
address in substitution of the foregoing address to which any such notice shall
be given.
Page
17
38. Brokerage. Landlord
and Tenant warrant to each other that they have not had any dealings with any
broker or agent in connection with the negotiation or execution of this Lease
except for the Leasing Agent, or Agents, if any, listed in Paragraph 1(j) of
this Lease; and each party agrees to indemnify the other party and hold the
other party harmless from and against any and all costs, expenses or liability
for commissions or other compensation or charges claimed by any other broker or
agent, through commitments of the indemnifying party with respect to this
Lease.
39. Force
Majeure. Whenever a period of time is herein prescribed for
action to be taken by Landlord or Tenant, the party taking the action shall not
be liable or responsible for, and there shall be excluded from the computation
for any such period of time, any reasonable delays due to strikes, riots, acts
of God, shortages of labor or materials, war, governmental laws, regulations or
restrictions or any other causes of any kind whatsoever which are beyond the
reasonable control of such party; provided, however, in no event shall the
foregoing apply to the financial obligations of either Landlord or Tenant to the
other under this Lease, including Tenant's obligation to pay Base Rents and all
other amounts payable to Landlord hereunder.
40. No Third
Party Beneficiary. This Lease is for the sole benefit of
Landlord, its successors and assigns, and Tenant, its permitted successors and
assigns, and it is not for the benefit of any third party.
41. Severability. If
any clause or provision of this Lease is illegal, invalid or unenforceable under
present or future laws effective during the term of this Lease, then and in that
event, it is the intention of the parties hereto that the remainder of this
Lease shall not be affected thereby, and it is also the intention of the parties
to this Lease that in lieu of each clause or provision that is illegal, invalid
or unenforceable, there be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid or unenforceable clause or
provision as may be possible and be legal, valid and enforceable.
42. Binding
Effect. The provisions of this Lease shall be binding upon and
inure to the benefit of Landlord and Tenant, respectively, and to their
respective heirs, personal representatives, successors and assigns, subject to
the provisions of Paragraph 21, Xxxxxxxxx 00, Xxxxxxxxx 35 and
Paragraph 46 hereof.
43. Applicable
Law; Consent to Jurisdiction. This Lease shall be governed by
and construed in accordance with the laws of the State of Texas and the laws of
the United States applicable to transactions in the State of
Texas. Tenant hereby irrevocably agrees that any legal action or
proceeding against it with respect to this Lease may be maintained in the courts
of county where rent is payable under this Lease, or at Landlord's option in the
U.S. District Court for the Northern District of Texas; and Tenant hereby
consents to the jurisdiction and venue of such courts.
44. Entire
Agreement; No Warranties. This Lease contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes any and all prior and contemporaneous agreements, understandings,
promises, and representations made by either party to the other concerning the
subject matter hereof and the terms applicable hereto. It is
expressly agreed by Tenant, as a material consideration for the execution of
this Lease, that there have been no agreements pertaining to the Premises, the
Building or this Lease not incorporated in writing herein and that this Lease
shall not be altered, waived, amended or extended, except by a written agreement
signed by the parties hereto, unless otherwise expressly provided
herein. Landlord's duties and warranties are limited to those set
forth in this Lease, and shall not include any implied duties or warranties, all
of which are hereby disclaimed by Landlord and waived by Tenant. In
particular, Landlord disclaims, and Tenant waives, any warranty that the
Premises are suitable or fit for any particular purpose or use.
Page
18
45. NO
IMPLIED REPRESENTATIONS. LANDLORD AND TENANT HEREBY
ACKNOWLEDGE THAT THEY ARE NOT RELYING UPON ANY BROCHURE, RENDERING, INFORMATION,
REPRESENTATION, PROMISE OR UNDERSTANDING OF THE OTHER, OR OF ANY LEASING AGENT,
EXCEPT AS MAY BE EXPRESSLY SET FORTH [place an "X" or other xxxx
designating a choice in the appropriate box]:
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x
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IN
THIS LEASE.
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o
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IN
AS WELL AS IN THIS
LEASE.
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NOTE: IF
NO "X" (OR OTHER XXXX DESIGNATING A CHOICE) IS PLACED IN EITHER BOX IN THIS
PARAGRAPH 45, THEN THE FIRST BOX WILL BE DEEMED TO HAVE BEEN
MARKED.
46. Early
Termination. Intentionally
Deleted.
47. Effective
Date. The submission by Landlord of this instrument to Tenant
for examination, negotiation or signature does not constitute an option for, or
a representation by Landlord regarding, a prospective lease. This
Lease shall be effective if and when (and only if and when) it has been executed
by both Landlord and Tenant. When such condition has been satisfied,
the effective date of this Lease shall be the latest date accompanying a
signature by Landlord and Tenant below; and if either or both signatures fail to
be accompanied by a date, then the date of such signature(s) shall be
established by the best alternative evidence. If for any reason
whatsoever this Lease has not been fully executed within fifteen (15) business
days after the signature of the first party to sign, then this Lease shall be
null and void and of no force or effect; provided, however, that if more than 15
business days elapse between the dates upon which Landlord and Tenant sign this
Lease, but this Lease nevertheless is in fact fully executed by both parties and
following the execution of this Lease by both parties either (i) Landlord and
Tenant mutually agree to Approved Working Drawings for leasehold improvements to
the Premises (as contemplated in Paragraph 3 of Exhibit D), or (ii)
Tenant occupies the Premises, or both, then the immediately preceding provision
of this sentence shall be inoperative and the remainder of this Lease shall be
in full force and effect.
[signatures
on the next page]
Page
19
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LANDLORD:
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MINOL CENTER,
L.P.,
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a
Delaware limited partnership
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By:
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Name:
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Title:
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Address:
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00000
Xxxxxxx Xxxx
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||
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Xxxxx
000
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Xxxxxxx,
Xxxxx
00000
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|
Date
of Signature:
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TENANT:
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Aerospace
Insurance Managers, Inc ________________,
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a
_Texas Corporation ______________________
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By:
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Name:
Xxxxxxxxxxx X. Xxxxx __________________
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Title:_President
___________________________
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|
Address
(Before Commencement Date):
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_00000
Xxxxxxxx Xxxx, Xxx 000 _______
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_Xxxxxx,
Xxxxx 00000 _________________
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|||
|
Address
(After Commencement Date):
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___15280
Xxxxxxx Xx, Xxx 000 _________
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___Xxxxxxx,
Xxxxx 00000 ______________
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Date
of Signature:___August 6, 2010
___________
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Page
20
EXHIBIT A TO LEASE
AGREEMENT
[legal
description of the Land]
BEING a
tract out of a 1.7120 acre tract out of an original 1.7277 acre tract of land
located in the X.X. Xxxxxx Survey, in the Quorum Center Addition, an addition to
the Town of Addison, Texas Abstract No. 482, in the Town of Addison, Dallas
County, Texas, conveyed to Quorum Center Limited Partnership, by a deed now of
record in Volume 92038, Page 0247, of the Deed Records of Dallas County, Texas,
said tract of land being more particularly described as follows:
BEGINNING
at a point for a corner, said point being in the southwest corner of said 1.7120
acre tract and the northwest corner of a 1.5812 acre tract conveyed to Rail
Hotels Corporation by a deed now of record in Volume 99024, Page 01020 of the
Deed Records of Dallas County, Texas and being in the east right-of-way line of
Addison Road, (generally a 60 foot right-of-way and generally 30 feet to the
center line), said point also being S 48° 18’ 40” E, 79.55 feet from
a found “X” in the southeast corner of a 0.0331 acre tract of land conveyed to
Oasis Car Wash, Inc. as described in Volume 97234, Page 06241, Tract II of the
Deed Records of Dallas County, Texas, said point of beginning also being in
center line of a 25 foot wide ingress and egress easement as described in Volume
89010, Page 4479, Exhibit C of the Deed Records of Dallas County,
Texas;
THENCE, N
00° 17’ 00” E, along
the west line of said 1.7120 acre tract and along east right-of-way line of said
Addison Road for a distance of 291.90 feet to a point for corner, said point
being the northwest corner of said 1.7120 acre tract and at a corner clip at the
southeast corner of Addison Road and Arapaho Road, said point being S 00° 17’ 00” W, 9.60 feet from
an found 5/8 inch iron rod in the northwest corner of said original 1.7277 acre
tract;
THENCE, N
42° 23’28” E, along
said corner clip at the southeast corner of said Addison Road and Arapaho Road
for a distance of 17.21 feet to point for a corner;
THENCE, S
00° 17’00” W, leaving
the south right-of-way line of Arapaho Road and the north property line of said
Quorum Center Limited Partnership, a distance of 304.67 feet to a point for a
corner, said point being in the south line of said 1.7120 acre tract and in a
north line of said 1.5812 acre tract;
THENCE,
N, 89° 43’ 00” W,
along the south line of said 1.7120 acre tract, long the north line of said
1.5812 acre tract and along the center line of said ingress and egress easement
for a distance of 11.54 feet to the Point of Beginning and containing 3,442.20
square feet (0.079 acres) of land.
EXHIBIT B TO LEASE
AGREEMENT
[Floor
Plan(s) of the Premises]
EXHIBIT C TO LEASE
AGREEMENT
Parking
Privileges
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1.
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Parking
Spaces. At all times during the Lease Term, and
conditioned upon the Lease being in full force and effect and there being
no uncured default under this Lease as defined in Paragraph 26 of
this Lease, Tenant shall have, for the use of Tenant and its employees,
unreserved parking spaces at a parking ratio of four (4) parking spaces
per one thousand (1,000) rentable square feet leased in the building
garage and surface parking lot. Fifteen (15) of the parking
spaces shall be covered spaces at no charge; and five (5) of the covered
spaces shall be reserved at no
charge.
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2.
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Parking
Rental. The rent for all parking spaces which are
allotted to Tenant pursuant to Paragraph 1 immediately above shall be the
rate which is from time to time designated by Landlord as standard for the
Building. On the execution date of the Lease, the rate is
$ 0.00
for each parking space. Landlord shall provide Tenant at least
thirty (30) days notice of any change in the parking rates, and Tenant
shall pay the adjusted rent after the expiration of the 30-day notice
period. All payments of rent for parking spaces shall be made
(i) at the same time as each Base Rent is due under the Lease and
(ii) to Landlord or to such persons as Landlord may direct from time
to time.
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3.
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Parking
Allocation Devices. Landlord reserves the right to
institute, and from time to time change, a system for allocating parking
spaces, e.g., magnetic parking cards, parking stickers and other devices
or forms of identification. If Landlord issues magnetic parking
cards, parking stickers or any other device or form of identification,
they shall remain the property of Landlord and shall not be
transferable. Tenant will be obligated to pay a replacement
charge, equal to the amount posted from time to time by Landlord, for loss
or other replacement of any magnetic parking card, parking sticker or
other parking allocation device issued by
Landlord.
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4.
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Damage
to or Condemnation. If Landlord fails or is unable to
provide any parking space to Tenant pursuant to Paragraph 1 above
because of damage or condemnation, such failure or inability shall never
be deemed to be a default by Landlord as to permit Tenant to terminate the
Lease, either in whole or in part. Instead, Tenant’s obligation
to pay rent for any such parking space, which is not provided by Landlord
shall be abated for so long as Tenant does not have the use of such
parking space, and such abatement shall constitute full settlement of all
claims that Tenant might otherwise have against Landlord by reason of such
failure or inability to provide Tenant with such parking
space.
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5.
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Rules
and Regulations. A condition of any parking shall be
compliance by the xxxxxx with garage or lot rules and regulations,
including any sticker or other identification system which may be
established by Landlord. The following rules and regulations
are in effect until notice is given to Tenant of any
change. Landlord reserves the right to modify and/or adopt such
other reasonable and generally applicable rules and regulations for the
applicable parking areas as it deems necessary for the operation of such
areas.
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(a)
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Cars
must be parked entirely within the painted stall
lines.
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(b)
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All
directional signs and arrows must be
observed.
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(c)
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The
speed limit shall be five (5) miles per
hour.
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(d)
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Parking
is prohibited in areas not striped for parking, aisles, areas where “no
parking” signs are posted, in cross hatched areas and in such other areas
as may be designated by Landlord or Landlord’s agent(s) including, but not
limited to, areas designated as “Visitor Parking” or reserved spaces not
rented under this Agreement.
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(e)
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Every
xxxxxx is required to park and lock his or her own car. All
responsibility for damage to cars or persons or loss of personal
possessions is assumed by the
xxxxxx.
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(f)
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Spaces
which are designated for small, intermediate or full-sized cars shall be
so used. No intermediate or full-size cars shall be parked in
parking spaces limited to compact
cars.
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6.
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Special
Provisions Regarding Over-Parking. Landlord agrees to
use its good faith efforts to monitor the parking usage of tenants in the
Building and attempt to restrict tenants against permitting their owners,
officers, employees, agents and invitees to utilize more parking spaces
than they are allotted pursuant to their respective
leases. Tenant agrees to cooperate with Landlord’s efforts in
this regard. In addition, and without limiting the generality
of the immediately preceding sentence, Tenant further agrees that if and
to the extent requested in writing by Landlord because of Landlord’s
concern that Tenant’s owners, officers, employees, agents and/or invitees
are utilizing more parking spaces than Tenant has been allotted under this
Exhibit
C, then at Landlord’s option any one or more of the following shall
apply (i.e., the following are cumulative and not mutually
exclusive):
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(a)
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Tenant
shall deliver written notices to all employees and other persons who might
be utilizing parking spaces, advising them of the parking limits under
this Exhibit
C.
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(b)
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Tenant
shall furnish to Landlord a complete list of license numbers of all
automobiles operated by Tenant and its owners, officers, employees, agents
and invitees who might be utilizing parking
spaces.
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(c)
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If
any automobile or other vehicle owned by Tenant or any of its employees,
agents or other invitees is utilizing a parking space in excess of those
allotted to Tenant under this Exhibit C,
Tenant shall pay to Landlord as additional rent upon demand an amount
equal to the daily rate or charge for such parking as established by
Landlord from time to time for each day, or part thereof, that such
automobile or other vehicle is so
parked.
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(d)
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If
any overparking by Tenant, its employees, agents and other invitees,
persists after written notice thereof from Landlord to Tenant, such
continued overparking shall constitute a failure of Tenant to comply with
this Exhibit C;
and such written notice from Landlord shall constitute the “written notice
thereof” which is contemplated in item (ii) of Section 26(a) of this
Lease, i.e., the overparking shall constitute an event of default under
this Lease if not cured within 30 days after such written
notice.
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EXHIBIT D TO LEASE
AGREEMENT
Leasehold Improvements
Agreement
MINOL
CENTER, L.P. (Landlord) and AEROSPACE INSURANCE MANAGERS,
INC. (Tenant) agrees to prepare the Premises for Tenant's occupancy in
accordance with this Leasehold Improvements Agreement.
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1.
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Defined
Terms: Unless otherwise noted, the defined terms in this
Leasehold Improvements Agreement have the same meaning as the defined
terms used in the Lease, and any other term defined in this Leasehold
Improvements Agreement will have the same meaning if it is used as a
defined term in the Lease.
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2.
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Construction
Plans. Landlord's space planner and engineer, as part of
the Allowance, will prepare and provide Tenant with a complete set of
construction plans (such construction plans, when approved, and all
changes and amendments thereto agreed to by Landlord and Tenant in
writing, are herein called the "Construction
Plans") for all of Tenant's improvements requested pursuant to the
Space Plan, the design and color scheme and any Above Building Standard
Product Specification List (all improvements required by the Construction
Plans are herein called "Tenant's
Work"), including complete detail and finish drawings for
partitions, doors, reflected ceiling, telephone outlets, electrical
switches and outlets and Building standard heating, ventilation and air
conditioning equipment and controls. Within three (3) Business
Days after construction plans are delivered to Tenant, Tenant shall
approve (which approval shall not be unreasonably withheld, conditioned or
delayed) or disapprove same in writing and if disapproved, Tenant shall
provide Landlord and Landlord's space planner and engineer specific
reasons for disapproval. The foregoing process shall continue
until the construction plans are approved by Tenant; provided that if
Tenant fails to respond in any three (3) Business Day period, then each
day after such date that Tenant fails to provide a response shall
constitute one (1) day of Tenant
Delay.
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3.
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Changes
to Approved Plans. If any re-drawing or re-drafting of
either the Space Plan or the Construction Plans is necessitated by
Tenant's request for a change that is not consistent with the Space Plan
[all of which shall be subject to approval by Landlord (which approval
shall not be unreasonably withheld, conditioned or delayed) and, if
applicable, any governmental agency or authority to which the plans and
specifications are required to be submitted], the expense of any such
re-drawing or re-drafting required in connection therewith and the expense
of any work and improvements necessitated by such re-drawing or
re-drafting will be charged to
Tenant.
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4.
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Coordination
of Planners and Designers. If Tenant shall arrange for interior
design services, whether with Landlord's space planner or any other
planner or designer, it shall be Tenant's responsibility to cause
necessary coordination of its agents' efforts with Landlord's agents to
ensure that no delays are caused to either the planning or construction of
the Tenant's Work; provided that Landlord, Landlord’s space planner,
Landlord’s Contractor and Landlord’s Manager shall use commercially
reasonable efforts to accommodate customary work performed by a Tenant
Party during the completion of the Tenant’s Work, including without
limitation, the installation of security systems, data cables and Tenant’s
furniture and fixtures.
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5.
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Tenant
Work Allowance. Landlord, at Tenant's sole cost, will
cause Tenant’s Work to be performed in substantial conformity with the
Construction Plans and in accordance with the terms of this Leasehold
Improvements Agreement. But, Landlord will provide Tenant up to $189,037.00
improvement allowance for Tenant’s Work (the “Allowance”)
to offset the costs of the Construction Plans, Space Planning and the
Tenant Work; if, however, the Construction Plans and the Tenant Work
actually cost less than the Allowance, Tenant will not be entitled to
offset or otherwise apply the unused portion of the Allowance against any
other sum owed to Landlord; except
Tenant may utilize up to
$6.00/RSF of the allowance towards moving costs, wiring/cabling
costs, and/or Project Management Costs, with a maximum of $2.50/RSF of the
$6.00/RSF allowance to be used towards
furniture.
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a)
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The
Allowance shall be disbursed by Landlord, from time to time, for payment
of (in the following priority) (i) the contract sum required to be paid to
the General Contractor engaged to construct Tenant's Work (the "Contract
Sum"), and (ii) the fees of the preparer(s) of the Construction
Plans and Space Plan (the foregoing costs are collectively referred to as
the "Permitted
Costs"). Landlord has agreed to waive its construction coordination
fee, and will work in conjunction with the project manager to be retained
by Tenant.
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b)
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Tenant
has hired its project manager, Xxxxx Xxxxx with CresaPartners, and Tenant
shall have the right to hire a move coordinator. Unless otherwise agreed
to in writing by Landlord and Tenant, construction and installation of the
Tenant’s Work shall be carried out by Landlord’s Contractor under the
direction of Tenant’s project manager, subject to the supervision and
direction of the Landlord’s Manager. Landlord and Tenant shall
cooperate with each other and the Space Planner to promote the efficient
and expeditious completion of such Tenant’s Work. On or before
the first day of each calendar month, Landlord shall provide and within
two (2) business days thereafter Tenant shall review with Landlord monthly
statements of costs incurred for the Tenant Work, which statements shall
reflect prior payments on the Tenant Work contract, along with appropriate
lien releases for such prior work.
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c)
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No
Tenant Party will be entitled to hold any Landlord Party responsible for
determining whether Tenant is a public accommodation. Tenant
shall be solely responsible for this determination. All of the
Tenant Work’s design, construction and installation shall conform to the
requirements of applicable building, plumbing and electrical codes,
requirements of government laws, including the ADA, and the requirements
of any authority having jurisdiction over, or with respect to, such
work. Further, all design, construction and installation shall
meet industry standards for electrical power required by Tenant’s
Permitted Use operations in the Premises, including without limitation
computer and telecommunications systems, software, printers, scanners, fax
machines, and copiers, backup and
batteries.
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d)
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If
the sum of the Permitted Costs exceeds the Allowance, then Tenant shall
pay all such excess costs ("Excess
Costs"), provided, however, Landlord will, prior to the
commencement of construction of Tenant's Work , advise Tenant of the
Excess Costs, if any, and the Contract Sum. Tenant shall have two (2)
Business Days from and after the receipt of such advice within which to
approve or disapprove the Contract Sum and any Excess Costs. If
Tenant disapproves the Contract Sum and Excess Costs then Tenant shall
either reduce the scope of Tenant's Work such that there shall be no
Excess Costs or, at Tenant's option, Landlord shall obtain two (2)
additional bids (i.e. bids in addition to the bids that Landlord is
required to obtain pursuant to Section 10 of
this Leasehold Improvements Agreement), provided that each day beyond such
two (2) Business Day period and until the rebid is accepted by Tenant
shall constitute a Tenant Delay hereunder. Subject to the last sentence of
this subsection, the foregoing process shall continue until a Contract Sum
and resulting Excess Costs, if any, are accepted or deemed accepted by
Tenant. Landlord and Tenant must approve (or be deemed to have
approved) the Contract Sum for the construction of Tenant's Work in
writing prior to the commencement of construction. If Tenant
fails to provide a response within an applicable time-period set forth in
this Section
5(d), then each day after such date until Tenant provides the
required response shall constitute one (1) day of Tenant
“Delay.”
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e)
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Unless
Landlord approved the use of other materials in the final Plans, which
approval shall not be unreasonably withheld, conditioned or delayed, all
Tenant Work will use Building Standard
materials.
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f)
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Tenant
shall remit to Landlord the actual Excess Costs, not to exceed the
projected Excess Costs as identified in Section 5(d) of
this Leasehold Improvements Agreement, if any, within ten (10) days after
Substantial Completion of Tenant’s Work and receipt of invoice from
Landlord. Failure by Tenant to timely tender to Landlord the
full payment required by this Section 5(f)
shall permit Landlord to stop all work until such payment is
received. All sums due Landlord under this Subsection shall be
considered Rent under the terms of the Lease and nonpayment shall
constitute a default, after 5 days written notice and opportunity to cure,
under the Lease and entitle Landlord to any and all remedies specified in
the Lease.
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6.
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Delay
and Completion. For purposes of determining the date on
which Landlord will be deemed to have tendered the premises for Tenant’s
occupancy will be the date of Substantial Completion (as described in
Section
6(b) below), moved back one day for each day of Delay).
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a)
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Delay means each of the
following acts or omissions of a Tenant Party that actually impedes the
substantial completion of the Tenant Work or Landlord
Work:
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| i) | failing to make its agents available, to furnish required information, or to respond to any request for any approval or information within any prescribed time period or, if no time period is prescribed, within 2 Business Days of that request; | |
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ii)
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insisting
on any Non-Building Standard service, material, or improvement that is not
identified in the Construction
Plans;
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iii)
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changing
the Construction Plans after same have been approved pursuant to Section 2 of
this Leasehold Improvements
Agreement;
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iv)
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having
work performed by any Tenant Party that results in an unreasonable
interference with the Landlord Work or the Tenant
Work;
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v)
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requesting
that Landlord delay performing any of Tenant Work or Landlord
Work;
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vi)
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any
Default;
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vii)
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taking
possession of any part of the Premises before the Substantial Completion
of Tenant Work, other than early occupancy of the Data Room;
or
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viii)
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any
other delay chargeable to a Tenant Party, as provided for
herein.
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b)
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Substantial Completion
will occur when all of the following have occurred: (i) the Tenant Work
has been performed in substantial compliance with the final Construction
Plans and the terms of this Leasehold Improvements Agreement (which shall
be determined by Landlord’s architect, which determination will
conclusively bind all parties absent manifest error), (ii) any permanent
certificate of occupancy if one is required has been issued or final
building inspection approval by the City of Dallas, and (iii) all services
to the Premises are available and fully
operational.
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c)
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Tenant's
sole and exclusive remedy for Landlord's failure, regardless of cause, to
Substantially Complete the Tenant’s Work and the Landlord’s Work by the
Delivery Date (as defined in this Leasehold Improvements Agreement) and
tender the Premises to Tenant by the Delivery Date, or otherwise to make
the Premises available, by the Delivery Date, will be the accrual of one
day of abatement of Base Rent for each day after
the Delivery Date until the date that Landlord is deemed to have tendered
the Premises for Tenant's occupancy with the Landlord’s Work and the
Tenant’s Work Substantially Complete. Each day of Base Rent abatement that
accrues under this Section 6(c)
shall be applied to Base Rent accruing on and after the Commencement Date.
Landlord and Tenant hereby acknowledge and agree that no Rent shall accrue
under the Lease until the Commencement Date.
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7.
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Building
Standard Materials. Building Standard construction
materials include:
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a)
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Flooring:
Grade and quality of carpeting to be selected by Landlord, with color to
be selected by Tenant from those offered by
Landlord.
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b)
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Window
Covering: Miniblinds in Landlord's uniform
color.
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c)
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Ceiling:
Acoustical tiles - Grid system.
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d)
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Partitions: Sheetrock
partitions with tape, bed, texture and paint finish, and/or vinyl pre-clad
sheetrock.
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e)
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Doors: Solid
core door with metal frame and
hardware.
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f)
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Electrical
Outlets: Standard 110 volt duplex wall-mounted
convenience outlets.
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g)
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Light
Switches: Single pole light
switches.
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h)
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Telephone
Facilities: Standard unwired telephone outlets (ring and
string) mounted on partitions. Tenant must make timely
arrangements for telephone installation and is responsible for all charges
related to such installation.
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i)
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Light
Fixtures: Recessed fluorescent lighting
fixtures.
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j)
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OTHER. Sprinklers;
exit signs; life safety devices required by
code.
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8.
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Commencement
Letter. Landlord and Tenant will each sign and
deliver to the other a Commencement Letter on the form attached as Rider
No. 5 confirming the Commencement Date, the Expiration Date, the
Rentable Area, and any other facts or terms that may be affected by
improvements to the Premises.
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9.
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Walk-Through;
Punch List. When Landlord considers the Tenant
Work in the Premises to be Substantially Completed, Landlord will notify
Tenant in writing and within three (3) Business Days thereafter,
Landlord’s representative and Tenant’s representative shall conduct a
walk-through of the Premises and identify any necessary touch-up work,
repairs and minor completion items that are necessary for final completion
of the Tenant Work. Neither Landlord’s representative nor
Tenant’s representative shall unreasonably withhold his or her agreement
on punch list items. Landlord shall use reasonable efforts to
cause the contractor performing the Tenant Work to complete all punch list
items within thirty (30) days after agreement thereon; however, Landlord
shall not be obligated to engage overtime labor in order to complete such
items. If any item listed on the Punch List is not completed by the later
of (i) thirty days after receipt of written notice from Tenant to Landlord
identifying the incomplete item, and (ii) the date that is ninety (90)
days after the date the Punch List is approved by both Landlord’s and
Tenant’s representatives, then Tenant may (without obligation) complete
such uncompleted items at Landlord’s sole cost and expense, such that
Landlord shall reimburse Tenant for the completion costs within thirty
(30) days after receipt of invoice and paid receipts from
Tenant.
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10.
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Contractor. Landlord
shall allow Tenant to seek three (3) lump sum construction bids, based on
contracts that include customary warranty terms for work and materials
supplied pursuant to the contract. Tenant shall within three
(3) Business Days after of receipt of such bids provide notice to Landlord
of the contractor that Tenant chooses for the construction of the Tenant
Work (“General
Contractor”). The General Contractor must agree to
correct defects for one (1) year and agree that all warranties are for the
additional benefit of and are enforceable by
Tenant.
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11.
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LANDLORD’S
WORK. Landlord shall cause the Tenant’s Work to be
Substantially Complete and Landlord will deliver possession of the
Premises to Tenant, as quick as possible after the Effective Date as time
is of the essence, and extended for each day of a Tenant Delays (the
“Delivery
Date”).
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TENANT:
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LANDLORD:
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|||
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Aerospace
Insurance Managers, Inc.
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Minol
Center, L.P.
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By:
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By:
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Name:
_Christopher X. Xxxxx ________________________
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Name:
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Title:
__President_________________________________
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Title:
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EXHIBIT E TO LEASE
AGREEMENT
Building
Rules and Regulations
1. Sidewalks,
doorways, vestibules, corridors, stairways and other similar areas shall not be
obstructed by Tenant or used by Tenant for any purpose other than ingress and
egress to and from the Premises and for going from or to another part of the
Building.
2. Plumbing
fixtures and appliances shall be used only for the purposes for which designed,
and no sweepings, rubbish, rags or other unsuitable materials shall be thrown or
placed therein. Damage resulting to any such fixtures or appliances
or surrounding areas from misuse by Tenant shall be repaired at the sole cost
and expense of Tenant, and Landlord shall not in any case be responsible
therefor.
3. No
signs, advertisements or notices shall be painted or affixed on or to any
windows or doors or other parts of the Building except of such color, size and
style and in such places as shall be first approved in writing by
Landlord. No nails, hooks or screws shall be driven or inserted in
any part of the Building except by the Building maintenance personnel nor shall
any part of the Building be defaced by Tenant. No curtains or other
window treatments will be placed between the glass and the Building standard
window treatments.
4. Landlord
will provide and maintain an alphabetical directory of each Tenant’s firm name
on the first floor (main lobby) of the Building. No other directory
shall be permitted unless previously consented to by Landlord in
writing.
5. Tenant
shall not place any additional lock or locks on any doors in or to the Premises
without Landlord’s prior written consent. A reasonable number of keys
to the locks on the doors which access the Premises from the common areas shall
be furnished by Landlord to Tenant, and Tenant shall not have any duplicate keys
made. Upon termination of the Lease, Tenant shall return all keys to
Landlord and shall provide to Landlord a means of opening all safes, cabinets
and vaults being left with the Premises.
6. With
respect to work being performed by Tenant in the Premises with the approval of
Landlord, Tenant will refer all contractors, contractor’s representatives and
installation technicians rendering any service to them to Landlord for
Landlord’s supervision, approval and control before the performance of any
contractual services. This provision shall apply to work performed in
the Building including, but not limited to, installation of telephones,
telegraph equipment, electrical devices and attachments, and any and all
installation of every nature affecting floors, walls, woodwork, trim, windows,
ceilings, equipment and any other physical portion of the
Building. Tenant must have Landlord’s written approval prior to
employing any contractor. Any and all such contractors shall comply
with these Rules and Regulations for such services including, but not limited
to, insurance requirements. All work in or on the Building shall
comply with any and all codes.
7. Movement
in or out of the Building of furniture or office equipment, or dispatch or
receipt by Tenant of any bulky materials, merchandise or materials which require
use of elevators or stairways, or movement through the Building entrances or
lobby shall be restricted to such hours as Landlord shall
designate. All such movement shall be under the supervision of
Landlord and in the manner agreed between Tenant and Landlord by prearrangement
before performance. Such prearrangement initiated by Tenant will
include determination by Landlord, and subject to its decision and control, as
to the time, method and routing of movement and as to limitations for 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 person or public engaged or not engaged
in such movement, including equipment, property and personnel of Landlord and
other tenants if damaged or injured as a result of acts in connection with
carrying out this service for Tenant from the time of entering the 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.
8. Landlord
shall have the power to prescribe the weight and position of safes and other
heavy equipment, which shall, in all cases, be positioned to distribute the
weight and stand on supporting devices approved by Landlord. All
damage done to the Building by taking in or putting out any property of Tenant,
or done by Tenant’s property while in the Building, shall be repaired at the
expense of Tenant.
9. Tenant,
in its capacity as an employer, shall establish – and shall use reasonable
measures to enforce – a policy for its employees, which prohibits firearms
(including, but not limited to, concealed handguns) in the Building and the
Premises.
10. Tenant
shall cooperate with Landlord’s employees in keeping its Premises neat and
clean. Tenant shall not employ any person for the purpose of such
cleaning other than the Building’s cleaning and maintenance
personnel. Landlord shall be in no way responsible to Tenant, its
agents, employees or invitees for any loss of property from the Premises or
public areas or for any damage to any property thereon from any cause
whatsoever.
11. To
insure orderly operation of the Building, no ice, mineral or other water,
towels, newspapers, etc. shall be delivered to the Premises except by persons
appointed or approved by Landlord in writing.
12. Corridor
doors, when not in use, shall be kept closed.
13. Should
Tenant require telegraphic, telephonic, annunciator or other communication
service, Landlord will direct the electrician in writing where and how wires are
to be introduced and placed and none shall be introduced or placed except as
Landlord shall direct. Electric current shall not be used for power
in excess of standard office use or heating without Landlord’s prior written
permission. Landlord shall have the sole discretion as to which
communication company or companies are permitted to enter the Building and
service tenants in the Building.
14. Tenant
shall not make or permit any improper odors or noises in the Building or
otherwise interfere in any way with other tenants or persons having business
with them.
15. Nothing
shall be swept or thrown into the corridors, halls, elevator shafts or
stairways. No animals shall be brought into or kept in, on or about
the Premises.
16. No
machinery other than standard office equipment shall be operated by Tenant in
its Premises without the prior written consent of Landlord, nor shall Tenant use
or keep in the Building any flammable or explosive fluid or
substance.
17. No
portion of the Premises shall at any time be used or occupied as sleeping or
lodging quarters.
18. Landlord
will not be responsible for money, jewelry or other personal property lost or
stolen in or from the Premises or public areas regardless of whether such loss
or theft occurs when the area is locked against entry or not.
19. Landlord
reserves the right to rescind any of these rules and regulations and to make
such other and further rules and regulations as in its judgment shall from time
to time be advisable for the safety, protection, care and cleanliness of the
Building, the use and operation thereof, the preservation of good order therein
and the protection and comfort of the tenants and their agents, employees and
invitees, which rules and regulations, when made and written notice thereof is
given to Tenant, shall be binding upon Tenant in like manner as if originally
herein prescribed; provided, however, that no new rules or regulations shall
deprive Tenant of any rights expressly granted to Tenant pursuant to this
Lease.
20. Tenant
shall not permit any of its employees, officers, directors, invitees or any
others associated or affiliated in any way with Tenant to hold, carry, smoke, or
dispose of a lighted cigar, cigarette, pipe or any other lighted smoking
equipment in any common area of the Building. The common areas
include, but are not limited to, all rest rooms, common corridors, stairwells,
elevator lobbies, first floor lobbies, and other areas used in common with other
tenants and occupants of the Building. In addition, the Building
shall be a non-smoking building, with no smoking in the Premises or in any other
area of the Building, including the exterior portions thereof, provided that
Landlord may (in Landlord’s sole and absolute discretion) provide for a smoking
area, in which case Tenant shall ensure that its employees smoke only in such
smoking area.
Rider No.
1
TENANT’S OPTION TO
RENEW
Tenant may, at its option, renew the
term of this Lease for one (1) additional term(s) of sixty (60) months or such
lesser period as mutually agreed upon, provided that this Lease must be in full
force and effect under the original term or any valid renewal thereof, and
Tenant shall not be in default in any of its obligations under this Lease at the
time of exercise of such option or at the time the renewal term would
begin. Each renewal shall be upon the same terms and conditions as
provided elsewhere in this Lease, except that (i) the original term of this
Lease may not be renewed more often than as set forth above, (ii) Landlord shall
have no obligation to install improvements in the Premises, and (iii) the annual
Base Rent for such renewal period(s), i.e., to be payable in equal monthly
installments in the same manner as during the primary Lease Term, shall be the
Prevailing Market Rate (described below). Such option shall be
exercised by Tenant’s giving notice to Landlord by certified mail, return
receipt requested, at least nine (9) months prior to the end of the
then-existing term; and, if not so exercised, such option shall automatically
expire and terminate (i.e., time being of the essence).
For purposes of determining the annual
Base Rent for each renewal period, the “Prevailing Market Rate” shall
be defined as the rental then being paid by tenants in buildings of comparable
quality, condition, and age for space of similar quality in similar properties
in the submarket. The expense stop (Base Year) shall be adjusted at
the end of the primary term to equate to Landlord’s actual costs during the last
year of the proceeding term if Tenant exercises its option(s) to
renew.
Aerospace
Insurance Lease Agreement (revised 7/12/2010)
Rider No.
2
TENANT’S RIGHT OF FIRST
REFUSAL TO LEASE ADDITIONAL SPACE
1. Provided
that this Lease continues in full force and effect without any uncured default
by Tenant, Tenant shall have a right of first refusal to lease any vacant space
in the area(s) designated in Paragraph 2 below (with the designated area(s)
being hereinafter referred to as the “Designated Area”), which
Landlord intends to market for lease to a party or parties other than the
current tenant(s) thereof. The right granted by this Rider, however,
is subject to the following terms and conditions:
If a
proposed tenant, i.e., other than the current tenant in the space, gives
Landlord an expression of interest in leasing then vacant space within the
Designated Area (either as a separate leased premises or together with space
outside the Designated Area), and if Landlord intends to enter into a lease with
the proposed tenant for such space, Landlord shall deliver to Tenant a written
notice which (i) specifies the portion or portions of the Designated Area and,
if applicable, any other space in the Building which the proposed tenant wishes
to lease and Landlord intends to allow to be leased along with the portion or
portions of the Designated Area (all such space being referred to collectively
as the “Refusal Space”),
(ii) identifies the proposed tenant, (iii) summarizes what Landlord considers to
be the most significant business terms of the proposed lease, and (iv) offers to
lease the Refusal Space to Tenant on the same terms and conditions as Landlord
intends to offer to the proposed tenant. Tenant shall then have a
period of ten (10) business days from the delivery of such notice (the “Delivery Date”) to accept the
lease offered by Landlord. If within the 10-day period Tenant does
not give Landlord written notice of its acceptance of the lease offered by
Landlord (time being of the essence), then Landlord shall be entitled to execute
with the proposed tenant identified in Landlord’s notice to Tenant (or with an
“affiliated entity,” i.e., an entity affiliated to such identified proposed
tenant by common ownership), a lease of the Refusal Space for the same or better
(for Landlord) terms as stated in the notice to Tenant. If within one
hundred eighty (180) days after the Delivery Date Landlord does so execute a
lease of the Refusal Space, this right of first refusal shall xxxxx as to that
portion of the Refusal Space which is in the Designated Area, until the
expiration of such lease and any extensions or renewals thereof. If
Landlord does not execute a lease of the Refusal Space with the proposed tenant
or an affiliated entity within one hundred eighty (180) days after the Delivery
Date, then Landlord shall again comply with the terms of this Rider in marketing
the portion of the Refusal Space, which is in the Designated Area.
2. For
purposes of this Rider, the term “Designated Area” shall be
deemed to mean:
Any
space on the 2nd floor,
when and if it becomes available.
Aerospace Insurance Lease Agreement (revised
7/12/2010)
Rider No.
3
TENANT’S
RIGHT TO EXPAND
Tenant
shall have the right to expand on the 2nd floor
within the first six (6) months of the Primary Lease Term. The terms
of the expansion space will be at the same terms and conditions as this lease
including Base Rental schedule at that specific point in time (i.e. the same
effective rate then remaining on the initial lease at such expansion date), but
the Tenant Improvements will be pro-rated to reflect the remaining term of the
lease.
Aerospace Insurance Lease Agreement (revised
7/12/2010)
Rider No.
4
TENANT’S OPTION TO
TERMINATE
Notwithstanding
anything contained in this Lease to the contrary, Landlord agrees that as long
as no uncured event of default has occurred under this Lease, Tenant shall have
a one-time option to terminate this Lease effective as of the
close of business on the last day of the “Termination Month” described below, by
delivering to Landlord a written termination notice at any time prior to the
last day of the “Notice Month” described below (with time being of the
essence). Tenant agrees, however, that if it delivers to Landlord a
termination notice as contemplated in this Rider, then it shall be
unconditionally and irrevocably obligated as follows:
(a) Paragraph 1(d)
of this Lease shall be deemed amended to provide that the Lease Term ends on the
last date of the Termination Month.
(b) Tenant
must remain current in its rents and other obligations under this Lease through
the date of termination.
(c) Tenant’s
termination notice must be accompanied by Tenant’s payment to Landlord (i.e., a
payment in addition to all rents and other financial obligations specified
elsewhere in this Lease) of a Termination Fee in the amount described
below.
(d) Tenant
must vacate the Premises by the termination date, i.e., by the close of business
on the last day of the Termination Month.
For
purposes of this Rider, the following terms are defined as follows:
“Notice Month”: the
67th
month of the lease term.
“Termination
Month”: the 76th month
of the lease term.
“Termination
Fee”: the sum of the following: (A) the unamortized
portion of the “Allowance” (defined in Paragraph 1(k) of this Lease), as
amortized in equal monthly portions over the “Lease Term” (defined in
Paragraph 1(d) of this Lease), plus (B) the unamortized
portion (i.e., amortized in the same manner as is prescribed in item (A) above)
of all brokerage commissions paid by Landlord in connection with this Lease,
plus (C) interest on the
amounts prescribed by items (A) and (B) above, at the rate of 8% per annum from
the Commencement Date of the Lease Term until the final day of the Termination
Month.
Aerospace Insurance Lease Agreement (revised 7/12/2010)
Rider
No. 5
Commencement
Letter
Date:__________________________
Aerospace
Insurance Managers, Inc.
00000
Xxxxxxx Xxxx
Xxxxx
000
Xxxxxxx,
Xxxxx 00000
|
Re:
|
Commencement
Letter with respect to that certain Lease Agreement between
Minol Center, L.P. , as Landlord, and Aerospace
Insurance Managers, Inc. as Tenant, for __8,362___ square
feet of Rentable Area on floor Two of the
Building.
|
Dear
__________________ _______,
Except
for punch-list items identified pursuant to the Leasehold Improvements Agreement
and except for latent defects, Tenant accepts possession of the Premises in
accordance with the terms of the Lease, and Landlord and Tenant
agree:
|
|
1.
|
The
Commencement Date of the Lease is
___________________________.
|
|
|
2.
|
The
Expiration Date of the Lease is
________________________________.
|
|
|
3.
|
The
Rentable Area of the Premises is
_______________________________.
|
Please
acknowledge Tenant's acceptance of possession and its agreement to these terms
by signing all 3 copies
of this Commencement Letter in the space provided and returning 2 fully executed copies to
me.
Sincerely,
|
Minol
Center, L.P.
|
||
|
Property
Manager
|
||
|
AGREED
AND ACCEPTED:
|
||
|
Aerospace
Insurance Manager, Inc.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Aerospace Insurance Lease Agreement (revised 7/12/2010)
