EX-10.43 59 dex1043.htm COMMERCIAL LEASE AGREEMENT COMMERCIAL LEASE AGREEMENT
Exhibit 10.43
| Landlord: | Xxxxxxx-Xxxx / Vista Point Limited Partnership | |||||||||||||
| Landlord’s Address: | 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 | |||||||||||||
| Contact Person: | Xxxxxx Xxxxxx | |||||||||||||
| Phone: | 000-000-0000 | |||||||||||||
| Fax: | 000-000-0000 | |||||||||||||
| Email: | xxxxxxx@xxxxxxxxxxx.xxx | |||||||||||||
| Tenant: | CareView Communications, Inc. | |||||||||||||
| Tenant’s Address: | Before the Commencement Date: | |||||||||||||
| Contact Person: | Xxxx X. Xxxxxx | |||||||||||||
| Phone: | 000-000-0000 | |||||||||||||
| Fax: | 000-000-0000 | |||||||||||||
| Email: | xxxxxxx@xxxx-xxxx.xxx | |||||||||||||
| From and after the Commencement Date: | ||||||||||||||
| 000 Xxxxx Xxxxxxx 000 | ||||||||||||||
| Xxxxxxxx X, Xxxxx 000 | ||||||||||||||
| Xxxxxxxxxx, Xxxxx 00000 | ||||||||||||||
| Contact Person: | Xxxx X. Xxxxxx | |||||||||||||
| Phone: | ||||||||||||||
| Fax: | ||||||||||||||
| Email: | xxxxxxx@xxxx-xxxx.xxx | |||||||||||||
| Landlord’s Broker: | Stream Dallas Industrial, LP | |||||||||||||
| Tenant’s Broker: | Xxxxxx Partners, LLC | |||||||||||||
| Leased Premises: | approximately 10,578 square feet of space located in the Building, as outlined on Exhibit “A-1” attached hereto | |||||||||||||
| Project: | Vista Point Business Center located at 000 Xxxxx Xxxxxxx 000 Xxxxxxxxxx, Xxxxx (containing approximately 143,810 square feet) | |||||||||||||
| Building: | Building B (containing approximately 28,944 square feet) | |||||||||||||
| Tenant’s Proportionate Share of Project: | 7.36% | |||||||||||||
| Tenant’s Proportionate Share of Building: | 36.55% | |||||||||||||
| Term: | 63 Months | |||||||||||||
| Commencement Date: | October 1, 2009 | |||||||||||||
| Termination Date: | The last day of the 63rd month following the Commencement Date |
| Landlord | ||
| 1 | ||
| Tenant |
| Base Rent: |
| Months | Annual Rate Per Sq. Ft. | Monthly Base Rent | ||||
| 1-6 | $ | 4.75 | $ | 4,187.13 | ||
| 7-42 | $ | 9.50 | $ | 8,374.25 | ||
| 43-63 | $ | 10.00 | $ | 8,815.00 |
| Initial Estimated Additional Rent Payments | 1. Common Area | $ 1.57 | ||||||||
| (expressed per square foot/year): | 2. Taxes | $ 2.18 | ||||||||
| (estimates only and subject to adjustment to actual costs and expenses according to the provisions of this Lease) | 3. Insurance | $ 0.12 | ||||||||
| Total: | $ | 3.87 | ||||||||
| Total Initial Estimated Monthly Additional Rent Payments: | $ | 3,411.41 | ||||||||
| Total Initial Monthly Base Rent and | ||||||||||
| Estimated Monthly Additional Rent Payments: | $ | 7,598.54 | ||||||||
| Security Deposit: | $ | 8,374.25 |
“Additional Rent” shall mean the Tax and Insurance Costs, the Common Area Maintenance Expenses and all sums of money, other than Base Rent, which become due by Tenant under this Lease.
“Adjacent Buildings” shall mean any building or buildings, other than the Building, located, from time to time, upon the Land and within the Project.
“Applicable Laws” shall mean any and all ordinances, orders, directives, codes, permits and other rules and regulations of state, federal, municipal, or other agencies or bodies having jurisdiction with respect to the Project.
“Base Rent” shall mean the annualized amounts computed for the applicable period using the Monthly Base Rent shown in Section 1, above and payable as provided herein.
“Building” shall have the meaning given in Section 1, above.
“Commencement Date” shall have the meaning given in Section 1, above.
“Common Areas” means all areas, spaces, facilities and equipment (whether or not located within the Building) made available by Landlord for the common and joint use of Landlord, Tenant and others designated by Landlord using or occupying space in the Building or the Project, including, but not limited to, loading docks, walkways, sidewalks and driveways necessary for access to the Building, parking areas, building lobbies, atriums, landscaped areas, public corridors, public restrooms, Building stairs, drinking fountains and any such other areas and facilities within the Project, if any, as are designated by Landlord from time to time as Common Areas.
| Landlord | ||
| 2 | ||
| Tenant |
“Common Area Maintenance Expenses” shall mean any and all expenses for the maintenance, repair, replacement and operation of the Common Areas and any portions of the Project for which Landlord is responsible hereunder, including, but not limited to, management fees, utility expenses (if furnished by Landlord), wages and fringe benefits payable to employees of Landlord responsible for the management of the Project and amounts paid to contractors for work performed in connection with the Project. The term “Common Area Maintenance Expenses” shall not include any capital improvement to the Project other than replacements required for normal maintenance and repair, nor shall it include repairs, restoration or other work occasioned by fire, windstorm or other insured casualty, expenses incurred in leasing or procuring tenants, leasing commissions, advertising expenses, expenses for renovating space for new tenants, legal expenses incident to enforcement by Landlord of the terms of any lease, interest or principal payments on any mortgage or other indebtedness of Landlord, compensation paid to any employee of Landlord above the grade of property manager, depreciation allowance or expense. Notwithstanding the foregoing, in the event Landlord installs equipment in or makes improvements or alterations to the Building which are for the purpose of reducing energy costs, maintenance costs or other Common Area Maintenance Expenses or which are required under any Applicable Laws which were not required at the date of commencement of the Term, Landlord may include in Common Area Maintenance Expenses reasonable charges for interest on such investment and reasonable charges for depreciation on the same so as to amortize such investment over the reasonable life of such equipment, improvement or alteration on a straight line basis.
“Default Rate” shall mean the lesser of (i) maximum rate of interest permitted by Applicable Law or (ii) the Prime Rate plus five percent (5%).
“Effective Date” shall mean the date of execution of this Lease.
“Event of Default” shall have the meaning given in this Lease, below.
“Hazardous Material” shall mean any substance, material, waste, pollutant, or contaminant that is or could be regulated under any statute, regulations, ordinance, rule, code, judgment, permit, or other similar requirement of any governmental authority, agency or court or that may adversely affect human health or the environment.
“Land” shall mean the land upon which the Building is located, as described in the attached Exhibit “A”.
“Landlord” shall have the meaning given in Section 1, above.
“Lease” shall mean this Commercial Lease Agreement.
“Leased Premises” shall have the meaning given in Section 1, above.
“Mortgage” shall mean any mortgage, deed to secure debt or security deed and any other instrument creating a lien in connection with any method of financing or refinancing.
“Mortgagee” shall mean the holder(s) of the indebtedness secured by a Mortgage.
“Permitted Exceptions” shall mean any encumbrances, easements, covenants, conditions, restrictions and other matters of record.
“Prime Rate” shall mean the prime interest rate as announced or published in The Wall Street Journal, or its successor, from time to time, or, in the event The Wall Street Journal does not announce or publish a prime interest rate, the prime interest rate announced or published from time to time by such national publication as may be selected by Landlord.
“Project” shall mean the Land, the Building and the Adjacent Buildings, landscaping, parking and driveway areas, sidewalks and other improvements thereon; however, Landlord shall have the right to modify the definition of “Project” by eliminating any Adjacent Building, together with the allocable share of the Land, landscaping, parking and driveway areas, sidewalks and other improvements relating thereto, in which event the term “Project” shall be limited to the Building, the Adjacent Buildings which have not been eliminated and the allocable share of the landscaping, parking and driveway areas, sidewalks and other improvements thereon.
| Landlord | ||
| 3 | ||
| Tenant |
“Punchlist Items” shall mean details of construction, decoration or adjustment which individually or in the aggregate do not materially impair Tenant’s use of the Leased Premises.
“Rent” shall mean the Base Rent, the Additional Rent, and other sums of money becoming due and payable to Landlord hereunder. Base Rent shall be payable in monthly installments in advance, the first monthly installment of which, together with the Initial Estimated Monthly Additional Rent Payments, being payable concurrently with the execution of this Lease and thereafter on or before the first day of each month of the Term in the amount set forth above.
“Security Deposit” shall mean the deposit held by Landlord in the amount set forth in Section 1, above.
“Substantial Completion” shall have the meaning set forth in Section 8(b).
“Tangible Net Worth” shall mean the excess of total assets over total liabilities, in each case as determined in accordance with generally accepted accounting principles consistently applied (“GAAP”), excluding, however, from the determination of total assets all assets which would be classified as intangible assets under GAAP including goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises.
“Tax and Insurance Cost” shall mean all of the following paid or payable by Landlord with respect to the Project or any portion thereof: (a) all federal, state and local sales, use, ad valorem, rental, value added or other taxes and special assessments and other governmental charges; private assessments (including but not limited to those payable to any association or relating to any off-site or on-site common areas or facilities) and all taxes on the rent or other revenue from the Project, including any business, gross margins, or similar tax payable by Landlord (including without limitation the Texas margin tax imposed pursuant to the provisions of Chapter 171 of the Texas Property Tax Code, as the same be amended or supplemented) which is attributable to rent or other revenue derived from the Project; together with all costs, fees and expenses incurred by Landlord in monitoring or contesting the aforementioned (collectively, “Taxes”), and (b) all insurance premiums.
“Tenant” shall have the meaning given in Section 1, above.
“Tenant Improvements” shall mean those improvements to the Leased Premises described in Exhibit “B”.
“Tenant’s Proportionate Share” shall mean the percentage set forth in Section 1 above, determined by dividing the area of the Leased Premises by the area of the Building or the aggregate area within the Building and the Adjacent Buildings, as applicable. Tenant’s Proportionate Share shall be adjusted if the size of the Leased Premises is modified or as Adjacent Buildings are added to or eliminated from the Project.
“Termination Date” shall have the meaning given in Section 1 above.
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| 4 | ||
| Tenant |
If any Base Rent payment required to be paid or which becomes due under this Lease is not paid by the tenth (10th) day following the day on which it is due, a service charge of five percent (5%) of such amounts due shall become due and payable in addition to the amounts due. Said service charge is for the purpose of reimbursing Landlord for the extra costs and expenses in connection with the handling and processing of late payments. In addition to such service charge, if any Base Rent payment is not paid by the tenth (10th) day following the day on which it becomes due, Tenant shall pay to Landlord, in addition to such Base Rent payment and the service charge, interest on such Base Rent payment calculated at the Default Rate from the date such Base Rent payment was due until paid by Tenant. If any Additional Rent required to be paid or which becomes due under this Lease is not paid when due, Tenant shall pay to Landlord, in addition to such amounts, interest on such amounts at the Default Rate from the date such amounts were due until paid by Tenant. Such service charge and interest shall be cumulative of any other remedies Landlord may have for nonpayment of Rent and other sums payable under this Lease. If three (3) consecutive monthly Base Rent payments or any ten (10) [in total, cumulative from the beginning of the Term] monthly Base Rent payments during the Term (or any renewal or extension thereof) are not received by Landlord within ten (10) days of the due date, the Base Rent hereunder shall automatically become due and payable by Tenant in advance in quarterly installments equal to three (3) months’ Base Rent each. Landlord shall notify Tenant of such change in the time for payment of Base Rent and, thereafter, the first of such quarterly Base Rent payments shall be due and payable on the first day of the next succeeding month and on the first day of every third (3rd) month thereafter. This remedy shall be cumulative of any other remedies of Landlord under this Lease for nonpayment of Rent.
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| 5 | ||
| Tenant |
7. Common Area Maintenance and Taxes and Insurance.
(a) Common Area Maintenance. Tenant agrees to pay as Additional Rent Tenant’s Proportionate Share of the Common Area Maintenance Expenses. Along with the Base Rent, Tenant shall pay one-twelfth of Tenant’s Proportionate Share of the annualized Common Area Maintenance Expenses as estimated from time to time by Landlord during the Term. As soon as available after the expiration of each calendar year, Landlord shall submit a statement (the “Annual Cost Statement”) to Tenant setting forth Tenant’s Proportionate Share of the Common Area Maintenance Expenses due from Tenant for the preceding year and the amount, if any, remaining due from Tenant to Landlord. Within ten (10) days after receipt of the Annual Cost Statement, Tenant shall remit to Landlord the amount the Annual Cost Statement shows to be due from Tenant. Notwithstanding the foregoing, Tenant shall pay the full cost of any repair, replacement or service which benefits only the Leased Premises or is the result of Tenant’s use or occupancy of the Leased Premises.
(b) Taxes and Insurance. Tenant shall pay to Landlord as Additional Rent Tenant’s Proportionate Share of the Tax and Insurance Cost. If the present method of taxation changes so that in lieu of or in addition to the whole or any part of any Tax, there is levied on Landlord a capital tax, assessment, or charge as a result of Landlord’s ownership or operation of the Building or Project regardless whether explicitly identified as a tax on rents, then all such taxes, assessments, or charges, or the part thereof so based, shall be deemed to be included within the term “Taxes” for purposes hereof. Notwithstanding anything to the contrary herein, Taxes shall include the Texas franchise tax and/or any other business tax imposed under Texas Property Tax Code Chapter 171 and/or any successor statutory provision for reports due under any such provision. If any use of the Leased Premises by Tenant causes an increase in insurance costs, Tenant shall pay as Additional Rent the entire amount of any such increase. Along with the Base Rent, Tenant shall pay, monthly, one-twelfth of Tenant’s Proportionate Share of the annualized Tax and Insurance Costs as estimated from time to time by Landlord during the Term. As soon as available after the expiration of each calendar year, Landlord shall submit a reconciliation statement to Tenant setting forth Tenant’s Proportionate Share of the Tax and Insurance Costs due from Tenant for the preceding calendar year and the amount, if any, remaining due from Tenant to Landlord. Within ten (10) days after receipt of such statement, Tenant shall pay Landlord the amount said statement shows to be due from Tenant. Tenant shall be responsible for paying all taxes upon Tenant’s furniture, machinery, fixtures and other property on the Project.
(c) Right to Audit. Within ninety (90) days after Landlord furnishes its Annual Cost Statement for any calendar year to Tenant (the “Audit Election Period”), Tenant may, at Tenant’s expense during Landlord’s normal business hours, elect to audit Landlord’s Common Area Maintenance Expenses for such calendar year only, subject to the following conditions: (1) there is no uncured Event of Default under this Lease; (2) the audit shall be prepared by an independent certified public accounting firm; (3) in no event shall any audit be performed by a firm retained on a “contingency fee” basis; (4) the audit shall commence within thirty (30) days after Landlord makes Landlord’s books and records available to Tenant’s auditor and shall conclude (and Tenant shall provide to Landlord a certified copy thereof) within forty-five (45) days after commencement; (5) the audit shall be conducted where Landlord maintains its books and records (provided such books and records are kept in the Dallas/Ft. Worth metropolitan area) and shall not unreasonably interfere with the conduct of Landlord’s business; (6) Tenant and its accounting firm shall treat any audit in a confidential manner and shall each execute Landlord’s confidentiality agreement for Landlord’s benefit prior to commencing the audit (subject to the requirements of litigation and to exception for information which is generally known to the public); and (7) the accounting firm’s audit report shall, at no charge to Landlord, be submitted in draft form for Landlord’s review and comments before the final approved audit report. Notwithstanding the foregoing, Tenant shall have no right to conduct an audit if Landlord furnishes to Tenant an audit report for the calendar year in question prepared by an independent certified accounting firm of recognized national standing (whether originally prepared for Landlord or another party). This paragraph shall not be construed to limit, suspend, or xxxxx Tenant’s obligation to pay Rent when due, including estimated Common Area Maintenance Expenses. Unless Landlord disputes such audit, Landlord shall credit any Tenant overpayment determined by the final approved audit report against the next sums due and owing by Tenant or, if no further Rent is due, refund overpayment determined by the final approved audit report within thirty (30) days of determination. The foregoing obligations shall survive the expiration date of this Lease. If Tenant does not provide written notice to Landlord within the Audit Election Period of Tenant’s election to audit Landlord’s Common Area Maintenance Expenses, it shall be conclusively deemed that Tenant shall have forever waived any right to contest the amount of Tenant’s Proportionate Share of Common Area Maintenance Expenses arising prior to the commencement of the Audit Election Period.
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| 6 | ||
| Tenant |
(d) Contest of Taxes by Landlord. Landlord shall have the right to employ a tax consulting firm to attempt to assure a fair tax burden on the Project (or any portion thereof) within the applicable taxing jurisdiction. Tenant shall pay to Landlord upon demand from time to time, as Additional Rent, Tenant’s Proportionate Share of the fees, expenses and costs incurred by Landlord of such service. Tenant acknowledges that any filing of a protest of appraised value by Tenant will give the appraisal district discretion to increase or decrease the appraised value, that an increase in the appraised value will affect Landlord and the other tenants, if any, of the Project, and that an increase in the appraised value may increase the taxes not only for the year in question but for future years, potentially beyond expiration of the Term. Accordingly, to the extent permitted by Applicable Law, Tenant hereby waives the provisions of Section 41.413 and 42.015 of the Texas Property Tax Code (or successor thereto) to protest the appraised value of the Project or any portion thereof. In the alternative, if Section 41.413 or 42.015 of the Texas Property Tax Code may not be waived, Tenant agrees not to protest any valuation unless Tenant notifies Landlord in writing of Tenant’s intent to protest and Landlord fails to file a protest of the valuation within thirty (30) days after Landlord receives Tenant’s written notice. If Tenant files a protest without giving written notice required by the preceding sentence, such filing shall be an Event of Default under this Lease without the necessity of any notice from Landlord. Furthermore, if Tenant exercises the right of protest granted by Section 41.413 or 42.015 of the Texas Property Tax Code, Tenant shall be solely responsible for, and shall pay, all costs of such protest. If as a result of any protest filed by Tenant, the appraised value of the Building or Project is increased, Tenant shall be solely responsible for, and shall pay upon demand by Landlord, all taxes (not only Tenant’s Proportionate Share) assessed against the Building or Project in excess of the taxes which would have been payable in the absence of the protest. Tenant shall continue to pay such excess taxes, regardless of whether the increased taxes are incurred during the Term or thereafter. Landlord agrees, upon written request by Tenant, to provide to Tenant to a copy of the determination of appraised value for any year. Tenant agrees that if Landlord, in Landlord’s sole discretion, elects to protest a determination of the appraised value of the Project or any portion thereof, Tenant shall pay to Landlord Tenant’s Proportionate Share of the fees, expenses and costs of such protest whether or not such protest is successful. The provisions of this Section 7 pertaining to Section 41.413 and 42.015 of the Texas Property Tax Code expressly shall survive the expiration or other termination of this Lease.
8. Condition of Leased Premises; Tenant Improvements; Common Areas; Maintenance; Alterations.
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| 7 | ||
| Tenant |
(d) Maintenance of the Leased Premises.
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| Landlord | ||
| 9 | ||
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Date. Not less than fifteen (15) days prior to the expiration date of any such policies, certified copies of renewal policies and evidence of the payment of renewal premiums shall be delivered to Landlord. All such original and renewal policies shall provide for at least thirty (30) days written notice to Landlord before such policy may be canceled or changed to reduce insurance coverage provided thereby.
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| 10 | ||
| Tenant |
11, a “transfer” shall include the transfer, assignment or encumbrance of any controlling interest in Tenant. Notwithstanding the above prohibitions, Tenant may, upon thirty (30) days prior written notice to Landlord, assign this Lease to a surviving entity following Tenant’s merger therein (so long as the surviving entity has a financial, Tangible Net Worth equal to or greater than Tenant’s Tangible Net Worth immediately prior to such merger) or sublet the Leased Premises or any part thereof to its parent corporation or one of its wholly owned subsidiaries or an “affiliate”; however, no assignment or subletting shall relieve Tenant or any guarantor of this Lease of its respective obligations under this Lease or any guaranty, and Tenant shall continue to be liable as a principal (and not as a guarantor or surety) to the same extent as though no assignment or subletting had been made. Any assignment or sublease effected pursuant to the preceding sentence is hereinafter referred to as a “Permitted Transfer”. As used herein, an “affiliate” is an entity that “controls”, “is controlled by” or “is under common control with” the Tenant.
(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 pursuant to the terms hereof within ten (10) days after the due date thereof; or (ii) Tenant shall fail to comply with any term, provision, covenant or warranty made under this Lease by Tenant, other than the payment of Rent payable by Tenant, and shall not cure such failure within ten (10) days after written notice thereof to Tenant; or (iii) any affirmative act of insolvency by Tenant, or the filing by Tenant of any petition or action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors, or Tenant’s transfer in fraud of creditors or assignment for the benefit of creditors of all or substantially all of Tenant’s assets; or (iv) the filing of any involuntary petition under any bankruptcy statute against Tenant (that fails to be dismissed within thirty (30) days of filing), or the appointment of any receiver or trustee to take possession of the properties of Tenant; or (v) Tenant’s abandonment or vacation of any part of the Leased Premises, whether or not Tenant is in default of the Rent due under this Lease; or (vi) Tenant doing or permitting to be done any act which results in a lien being filed against the Leased Premises and the same is not removed within sixty (60) days.
(b) Upon the occurrence of an Event of Default, Landlord shall have the option to pursue any one or more of the following remedies without any notice or demand whatsoever: (i) terminate this Lease, in which event Tenant shall immediately surrender the Leased Premises to Landlord and if Tenant fails to do so, Landlord may without prejudice to any other remedy which it may have, enter upon and take possession of the Leased Premises and expel or remove Tenant, by force, if necessary, without being liable for prosecution or any claim of damages therefor; (ii) enter upon the Leased Premises by force, if necessary, without being liable for prosecution or any claim of damages therefor, and do whatever Tenant is obligated to do under the terms of this Lease; (iii) without terminating this Lease unless
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| 11 | ||
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Landlord so notifies Tenant in writing, enter upon the Leased Premises, and, without court order or other process of law, take possession of and remove the equipment and personal property of Tenant; (iv) exercise any other remedy permitted by law or at equity or by statute or otherwise; or (v) without terminating this Lease, enter upon the Leased Premises, expel or remove Tenant and relet the Leased Premises on behalf of Tenant and receive directly the rent from the reletting and Tenant agrees to pay Landlord on demand any deficiency that may result from the reletting. Tenant agrees that Landlord shall not be liable for any damages resulting to Tenant from Landlord’s enforcement of this Lease, whether caused by negligence of Landlord or otherwise (INCLUDING THE FAULT, NEGLIGENCE OR OTHER TORTIOUS CONDUCT, ACTS OR OMISSIONS OF LANDLORD OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR INVITEES). Pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedy herein provided or any other remedy provided by law or at equity, nor shall pursuit of any remedy herein provided constitute an election of remedies thereby excluding the later election of an alternate remedy, or a forfeiture or waiver of any Rent payable by Tenant and due to Landlord hereunder or of any damages accruing to Landlord by reason of violation of any of the terms, covenants, warranties and provisions 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 such default. Tenant agrees to pay to Landlord all costs and expenses incurred by Landlord in the enforcement of this Lease or which Landlord may incur or suffer by reason of Tenant’s default or the termination of this Lease, including without limitation, the fees of Landlord’s attorneys, reasonable reconfiguration expenses, rental concessions and other inducements to new tenants, advertising expenses and broker’s commissions. No waiver of any breach of the covenants, warranties, agreements, provisions, or conditions contained in this Lease shall be construed as a waiver of said covenant, warranty, provision, agreement or condition or of any subsequent breach thereof. All rights, powers and privileges conferred hereunder upon the parties hereto shall be cumulative to, but not restrictive of, or in lieu of those conferred by law.
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| 12 | ||
| Tenant |
21. Mechanic’s Liens. Tenant will not permit any mechanic’s liens or other liens to be placed upon the Building, Land or the Leased Premises and nothing in this Lease shall be deemed or construed in any way as constituting the consent or request of Landlord, express or implied, by inference or otherwise, to any person for the performance of any labor or the furnishing of any materials to the Building, Land or to the Leased Premises or any portion thereof, nor as giving Tenant any right, power, or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to any mechanic’s or other liens against the Building, Land or the Leased Premises. In the event any such lien is attached to the Building, Land or to the Leased Premises, then, in addition to any other right or remedy of Landlord, Landlord may, but shall not be obligated to, discharge the same. Any amount paid by Landlord for any of the aforesaid purposes shall be paid by Tenant to Landlord on demand as Additional Rent.
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29. Texas Property Code Section 91.004. Tenant hereby waives any statutory lien provided under Section 91.004 of the Texas Property Code (as same may be amended).
EXHIBITS:
Exhibit “A” – Legal Description of the Land
Exhibit “A-1” – Floor Plan of Leased Premises
Exhibit “B” – Tenant Improvement Agreement
Exhibit “C” – Renewal Option
Exhibit “D” – Rules and Regulations
(SIGNATURES ON FOLLOWING PAGE)
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| “Landlord”: | “Tenant”: | |||||||
| XXXXXXX-XXXX / VISTA POINT | CAREVIEW COMMUNICATIONS, INC., | |||||||
| LIMITED PARTNERSHIP, a Texas limited partnership | a Texas corporation | |||||||
| By: Xxxxxxx-Xxxx / Texas, Inc., General Partner | ||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name: | Name: | Xxxx X. Xxxxxx | ||||||
| Title: | Vice President | Title: | Chief Financial Officer |
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| Tenant |
EXHIBIT “A”
LEGAL DESCRIPTION OF THE LAND
BEING a 10.401 acre tract of land situated in the X. X. Xxxxxxx Survey, Abstract No. 1402, in City of Lewisville, Xxxxxx County, Texas and being all of Xxx 0X-0 xx xxx Xxxxx Xxxx xx Xxxxx Xxxxx, Xxx 0X-0 & 4R-2, Block E, an Addition to the City of Lewisville, Xxxxxx County, Texas, recorded in Cabinet N, Pages 308 & 309, of the Plat Records of Xxxxxx County, Texas (P.R.D.C.T.), said 10.401 acre tract being more particularly described by metes and bounds as follows:
BEGINNING at a X cut set for the Southwest corner of said Lot 4R-2 in the North R.O.W. line of Vista Ridge Boulevard (a variable width R.O.W.) recorded in County Clerk’s File No. 94-R0000002, of the Deed Records of Xxxxxx County, Texas (D.R.D.C.T.);
THENCE North 11 degrees 40 minutes 43 seconds West, departing said north R.O.W. line, along the West line of said Lot 4R-2, a distance of 160.45 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx” found for corner;
THENCE North 07 degrees 24 minutes 19 seconds West, continuing along said West line, a distance of 723.49 feet (called 723.16 feet) to a 5/8” iron rod set capped “Xxxxxx & Xxxxxxx” set for the Northwest corner of said Lot 4R-2 and the common Southwest corner of Xxx 0X-0, xx xxxx Xxxxx Xxxx xx Xxxxx Xxxxx;
THENCE North 81 degrees 02 minutes 12 seconds East (called North 81 degrees 00 minutes 00 seconds East), along the North line of said Xxx 0X-0 xxx xxx xxxxxx Xxxxx xxxx xx xxxx Xxx 0X-0, a distance of 528.91 feet (called 528.92 feet) to the Northeast corner of said Lot 4R-2 and the common Southeast corner of said Lot 4R-1, in the West right-of-way (R.O.W.) line of Rockbrook Drive (a 75’ R.O.W.) recorded in Cabinet N, Pages 134 & 135 and Cabinet F, Page 271, P.R.D.C.T.;
THENCE along the East line of said Lot 4R-2 and the common West R.O.W. line of said Rockbrook Drive, the following two courses and distances:
Along a curve to the left having a radius of 1600.92 feet, a delta angle of 15 degrees 36 minutes 15 seconds, a long chord that bears South 29 degrees 33 minutes 07 seconds East a distance of 434.66 feet, an arc length of 436.00 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx” set for corner;
South 37 degrees 21 minutes 15 seconds East a distance of 90.87 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx” set for the Northeast corner of a corner clip of the intersection of the West R.O.W. line of said Rockbrook Drive and the North R.O.W. line of said Vista Ridge Boulevard;
THENCE South 07 degrees 38 minutes 45 seconds West, along said corner clip, a distance of 14.84 feet to a 5/8” iron rod capped ‘Xxxxxx & Xxxxxxx” set for the Southwest corner of said corner clip;
THENCE along the North right-of-way line of said Vista Ridge Boulevard the following courses and distances:
South 52 degrees 38 minutes 45 seconds West, a distance of 225.67 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx” set for corner;
Along a curve to the right having a radius of 238.00 feet, a delta angle of 12 degrees 34 minutes 41 seconds, a long chord that bears South 58 degrees 56 minutes 06 seconds West a distance of 52.14 feet, an arc distance of 52.25 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx” set for corner;
Along a curve to the left having a radius of 262.00 feet, a delta angle of 12 degrees 34 minutes 41 seconds, a long chord that bears South 58 degrees 56 minutes 06 seconds West a distance of 57.40 feet, an arc distance of 57.52 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx” set for corner;
| Landlord | ||
| 17 | ||
| Tenant |
South 52 degrees 38 minutes 45 seconds West, a distance of 154.00 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx” set for corner;
South 07 degrees 38 minutes 45 seconds West, a distance of 16.97 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx” set for corner;
South 52 degrees 38 minutes 45 seconds West, a distance of 22.57 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx” set for corner;
Along a curve to the right having a radius of 238.00 feet, a delta angle of 12 degrees 34 minutes 41 seconds, a long chord that bears South 58 degrees 56 minutes 06 seconds West a distance of 52.14 feet, an arc distance of 52.25 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx’ set for corner;
Along a curve to the left having a radius of 262.00 feet, a delta angle of 12 degrees 34 minutes 41 seconds, a long chord that bears South 58 degrees 56 minutes 06 seconds West a distance of 57.40 feet, an arc distance of 57.52 feet to a 5/8” iron rod capped “Xxxxxx & Xxxxxxx” set for corner;
South 52 degrees 38 minutes 45 seconds West, a distance of 194.49 feet to the POINT OF BEGINNING containing 10.401 acres of land, more or less.
| Landlord | ||
| 18 | ||
| Tenant |
EXHIBIT “A-1”
FLOOR PLAN OF LEASED PREMISES
| Landlord | ||
| 19 | ||
| Tenant |
EXHIBIT “B”
TENANT IMPROVEMENT AGREEMENT
1. Tenant will be responsible for all improvements to be made to the Leased Premises, including painting and carpeting (the “Tenant Improvements”). Prior to undertaking any of the Tenant Improvements, Tenant shall receive Landlord’s approval of the specifications of the Tenant Improvements (including the defined scope of work and quality and color of materials). Subject to the provisions of this Exhibit “B”, Landlord will contribute toward the cost of the Tenant Improvements up to but not in excess of $42,312.00 (the “Tenant Improvement Allowance”). If the Tenant Improvement Allowance is insufficient to pay for the Tenant Improvements to be done, Tenant shall pay such excess.
2. The Tenant Improvements shall be performed only by contractors and subcontractors approved in writing by Landlord. All contractors and subcontractors shall be required to procure and maintain insurance against such risks, in such amounts, and with such companies as Landlord may reasonably require. Certificates of such insurance, with paid receipts therefor, must be received by Landlord before the Tenant Improvements is commenced. The Tenant Improvements shall be performed in a good and workmanlike manner in accordance with the specifications approved by Landlord. All contractors and subcontractors shall contact Landlord and schedule time periods during which they may use Building facilities in connection with the Tenant Improvements (e.g., elevators, excess electricity, etc.).
3. Landlord shall provide to Tenant the Tenant Improvement Allowance equal to the lesser of (a) $42,312.00 or (b) the total cost to complete the Tenant Improvements; however, Tenant shall not become entitled to payment of the Tenant Improvement Allowance until the expiration of eighteen (18) months after the Commencement Date, the payment of which is expressly conditioned upon there being no existing Event of Default and each of the following having occurred: (i) the Tenant Improvements have been completed in the manner required by this Exhibit “B”; (ii) Landlord has inspected the Tenant Improvements and approved the same as having been completed; and (iii) Tenant has caused to be delivered to Landlord all invoices from contractors, subcontractors, and suppliers evidencing the cost of performing the Tenant Improvements, together with lien waivers from such parties and such other items as Landlord’s lender may reasonably request.
| Landlord | ||
| 20 | ||
| Tenant |
EXHIBIT “C”
RENEWAL OPTION
Subject to the terms and conditions of this Exhibit, Tenant may at its option extend the Term for the entire Leased Premises for one (1) period of three (3) years (“Renewal Term”) upon the same terms contained in this Lease. Tenant shall have no additional Renewal Option.
A. The Base Rent during the Renewal Term shall be the greater of (i) the Base Rent at the end of the existing Term or (ii) the then prevailing market rate for a comparable term commencing on the first day of the Renewal Term for tenants of comparable size and creditworthiness for comparable space in the Building and other first class office buildings in the general vicinity of the Building as reasonably determined by Landlord, and Tenant shall not be entitled to any rental abatement or other concessions.
B. To exercise its option, Tenant must deliver an initial non-binding notice to Landlord not less than four (4) months prior to the proposed commencement of the Renewal Term and not more than nine (9) months prior to the proposed commencement of the Renewal Term. Within thirty (30) days after Landlord’s receipt of Tenant’s initial non-binding notice, Landlord shall calculate and inform Tenant of the Base Rent for the Leased Premises. Landlord and Tenant shall work together in good faith to agree upon the Base Rent. Within fifteen (15) days after the date on which Landlord advises Tenant of the applicable Base Rent, Tenant shall either (i) give Landlord final binding written notice (“Binding Notice”) of Tenant’s exercise of its Renewal Term at the Base Rent determined by Landlord or (ii) if Tenant disagrees with Landlord’s determination, provide Landlord with written notice of rejection (the “Rejection Notice”). If Tenant fails to provide Landlord with either a Binding Notice or a Rejection Notice, within such fifteen (15) day period, Tenant will be deemed to have waived its option to extend. If Tenant provides Landlord with a Rejection Notice, Tenant will be deemed to have waived its option to extend.
C. Tenant’s option to extend this Lease is subject to the conditions that: (i) on the date that Tenant delivers its final binding notice exercising its option to extend, Tenant is not in default under this Lease after the expiration of any applicable notice and cure periods, and (ii) Tenant shall not have assigned this Lease, or sublet any portion of the Leased Premises under a sublease which is in effect at any time during the final twelve (12) months prior to the Renewal Term.
D. Tenant agrees to provide Landlord with financial statements evidencing Tenant’s (and any guarantor’s) financial condition and to provide additional security if reasonably requested by Landlord.
E. Upon Tenant’s exercise of the renewal option, Tenant agrees to convert to Landlord’s Standard Lease form.
| Landlord | ||
| 21 | ||
| Tenant |
EXHIBIT “D”
RULES AND REGULATIONS
The following Rules and Regulations are prescribed by Landlord in order to provide and maintain, to the best of Landlord’s ability, orderly, clean and desirable Leased Premises, building and parking facilities for the tenants therein and to regulate conduct in and use of the Leased Premises, the Building and parking facilities in such a manner as to minimize interference by others in the proper use of the Leased Premises by Tenant. All references to Tenant include not only the Tenant, but also Tenant’s agents, employees, invitees, licensees, visitors, assignees, and/or sublessees:
1. Tenant shall not block or obstruct any of the entries, passages, or doors of the Building or parking area, or place, empty, or throw rubbish, litter, trash, or material of any nature into such areas, or permit such areas to be used at any time except for ingress or egress of Tenant.
2. Landlord will not be responsible for lost or stolen personal property, equipment, money, or any article taken from the Leased Premises, Building, or parking facilities regardless of how or when loss occurs.
3. The plumbing facilities shall not be used for any other purpose than that of which they are constructed, and no foreign substance of any kind shall be placed therein, and the expense of any breakage, stoppage, or damage resulting from a violation of this provision by Tenant or its employees shall be borne by Tenant.
4. Any additional keys or locks required by Tenant during the term of the Lease shall be the Tenant’s responsibility.
5. The common parking facilities are available for use by any and all tenants. Landlord reserves the right, in Landlord’s sole discretion, to assign or allocate parking in the event of conflicts, abuse, or improper use. It is generally understood that any tenant should utilize only those parking spaces immediately adjacent to the tenant’s leased premises.
6. Vehicles that are abandoned, disabled, have expired registration stickers, obstructing any means of ingress or egress to any leased premises, or in any way a general nuisance or hazard are subject to removal without notice by Landlord. All costs associated with such removal shall be at the Tenant’s/vehicle owner’s expense.
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| 22 | ||
| Tenant |