LOOP CENTRAL THREE
HOUSTON, TEXAS
OFFICE SPACE LEASE
0-XXXXXXXX.XXX, INC.
Tenant
June 16, 1999
TABLE OF CONTENTS
OFFICE SPACE LEASE
LOOP CENTRAL THREE
HOUSTON, TEXAS
SECTION PAGE
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1. BASIC LEASE PROVISIONS...................................................1
2. DEMISE...................................................................2
3. TERM.....................................................................2
4. RENT.....................................................................2
5. SECURITY DEPOSIT.........................................................5
6. USE OF PREMISES..........................................................6
7. RULES AND REGULATIONS....................................................6
8. SERVICES PROVIDED........................................................6
9. LEASEHOLD IMPROVEMENTS; ALTERATIONS......................................7
10. CONDITION OF PREMISES....................................................8
11. SURRENDER................................................................9
12. DAMAGE OR DESTRUCTION....................................................9
13. EMINENT DOMAIN..........................................................10
14. WAIVER OF CERTAIN CLAIMS................................................11
15. INSURANCE; WAIVER OF SUBROGATION........................................12
16. LANDLORD'S RIGHT OF ACCESS..............................................12
17. RIGHTS RESERVED TO LANDLORD.............................................13
18. [INTENTIONALLY OMITTED].................................................14
19. TRANSFER OF LANDLORD'S INTEREST; LIABILITY OF LANDLORD..................14
20. TRANSFER OF TENANT'S INTEREST...........................................14
21. DEFAULT: LANDLORD'S RIGHTS AND REMEDIES.................................15
22. INDEMNIFICATION; COUNTERCLAIMS..........................................17
23. HOLDING OVER............................................................17
24. SUBORDINATION...........................................................17
25. ESTOPPEL CERTIFICATE....................................................18
26. RELOCATION OF TENANT....................................................19
27. NOTICES AND DEMANDS.....................................................19
28. CONSTRUCTION OF LEASE...................................................20
29. REAL ESTATE BROKERS.....................................................20
30. ENVIRONMENTAL COMPLIANCE................................................20
31. RENEWAL OPTION..........................................................21
32. MISCELLANEOUS...........................................................22
33. LIMITATION OF LIABILITY.................................................24
EXHIBITS
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Exhibit A - Floor Plan
Exhibit B - Rules and Regulations
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OFFICE SPACE LEASE
Lease made in Houston, Texas as of the 16th day of June, 1999.
1.
BASIC LEASE PROVISIONS
1.01 Landlord and Address:
W9/LWS II Real Estate Limited Partnership
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
1.02 Tenant and Current Address:
0-Xxxxxxxx.xxx, Inc.
-------------------------
-------------------------
1.03 Guarantor(s) and Current Address(es):
None.
1.04 Premises: Xxxxx Xx. 000, as shown on the floor plan attached hereto as
Exhibit A.
1.05 Term: Three (3) years.
1.06 Commencement Date: July 1, 1999.
1.07 Expiration Date: June 30, 2002.
1.08 Monthly Base Rent: Monthly Base Rent shall be payable in the following
amounts during the periods indicated:
LEASE YEAR ANNUAL BASE RENT PER SQUARE MONTHLY BASE RENT
FOOT
1 $17.25 $1,668.94
2 $17.50 $1,693.13
3 $17.75 $1,717.31
[As used herein, "Lease Year" shall mean the twelve (12) month period
commencing on the Commencement Date and each successive twelve (12) month
period thereafter commencing on each anniversary of the Commencement Date.]
1.09 Rentable Area of Premises: 1,161 rentable square feet.
1.10 Tenant's Share: 0.59%.
1.11 Security Deposit: $1,668.94
1.12 Leasing Broker(s) (if any):
XX Xxxxxxx Xxxxx Xxxxxxxx Commercial Realty, LLP
0000 Xxxx Xxxx Xxxxx 0000 Xxx Xxxxxx
Xxxxx 000 -------------------------------
Xxxxxxx, Xxxxx 00000 Suite 200
-------------------------------
Xxxxxxx, Xxxxx 00000
-------------------------------
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1.13 Landlord's Management Agent and Address:
Lincoln Property Company
0000 Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
or such other Management Agent as Landlord may designate from time to
time.
The words identified in this Section 1 shall have the meanings ascribed to
them in this Section 1 for all purposes of this Lease.
2.
DEMISE
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises in the building commonly known as LOOP CENTRAL THREE, HOUSTON
TEXAS (which, together with the land parcel on which it is situated and all
appurtenances thereto are referred to herein as the "Building") for the Term
and upon the terms, covenants and conditions set forth in this Lease. This
Lease shall be in full force and effect from the date it is signed and
delivered by Landlord and Tenant. Tenant covenants as a material part of the
consideration for this Lease to keep and perform each and all of the terms,
covenants and conditions by it to be kept and performed. This Lease is made
upon the condition of such performance.
3.
TERM
The term of this Lease shall commence on the Commencement Date and
expire on the Expiration Date unless sooner terminated as provided in this
Lease. If Landlord shall be unable to deliver possession of the Premises to
Tenant on the Commencement Date for any reason whatsoever, Landlord shall not
be subject to any liability for the failure to deliver possession on said date
nor shall such failure to deliver possession on the Commencement Date affect
the validity of this Lease or the obligations of Tenant hereunder.
4.
RENT
4.01 DEFINITIONS. For purposes of this Lease, the following terms
shall have the meanings ascribed to them in this Section 4.01:
(a) "Adjustment Year" shall mean each calendar year or part
thereof during the Term.
(b) "Base Year" shall mean the calendar year 1999.
(c) "Operating Expenses" shall mean and include all amounts,
expenses and costs of whatever nature that Landlord incurs because of or in
connection with the ownership, control, operation, repair, management,
replacement or maintenance of the Building, any parking areas and garages,
the land on which such improvements are located, any present or future
associated underground or elevated pedestrian tunnels or walkways, all
additional facilities which may be added to the Property, and all machinery,
equipment, landscaping, fixtures and other facilities, including personal
property, as may now or hereafter exist in or on the Building (the
"Property"). Operating Expenses shall be determined in accordance with sound
management accounting principles consistently applied and shall include, but
shall not be limited to, the following:
(1) Wages, salaries, fees, related taxes, insurance
costs, benefits (including amounts payable under medical, pension and welfare
plans and any amounts payable under collective bargaining agreements) and
reimbursement of expenses of and relating to all personnel engaged in
operating, repairing, managing, replacing and maintaining the Property.
(2) All supplies and materials, including sales tax
imposed in connection with the purchase thereof.
(3) Legal and accounting fees and expenses (except for
legal fees incurred in connection with the negotiation or the collection of
amounts due under leases).
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(4) Cost of all utilities for the Building,
including, without limitation, water, sewer, power, fuel, heating, lighting, air
conditioning and ventilating.
(5) Fees and other charges payable under or in
respect of all maintenance, repair, janitorial, scavenger and other service
agreements for or pertaining to the Property.
(6) Cost of all insurance relating to the
Building, or the ownership, its occupancy or operations thereof and the
Property.
(7) Cost of repairs and maintenance of the
Property, excluding only such costs which are paid by the proceeds of insurance,
by Tenant or by other third parties (other than payment by Tenant or other
tenants of the Building of Expense Adjustment or similar reimbursement of
Building costs and expenses).
(8) Amortization of the cost (plus interest at
the then current market rate on the unamortized portion of such cost from time
to time) of purchasing and installing capital investment items (including
"retrofitting" or capital replacements) that are necessary for the Property or
are for the purpose of reducing costs includible in the definition of Operating
Expenses (to the extent of the reduction in Operating Expenses) or that may be
required by governmental or quasi governmental authority. All such costs shall
be amortized over the reasonable life of the capital investment items, with the
reasonable life and amortization schedule being determined in accordance with
sound management accounting principles.
(9) Management fees (at a rate not to exceed a
competitive market rate) and reimbursed expenses of Landlord's Management Agent
and administrative expenses not borne by the Landlord's Management Agent.
(10) Fees and charges under any declaration of
covenants, easements or restrictions affecting the Building.
Notwithstanding the foregoing, Operating Expenses shall not
include:
(1) Principal or interest payments with respect
to mortgages against the Building;
(2) Ground lease payments;
(3) Depreciation;
(4) The cost of replacement of capital
investment items (except as provided in Section 4.01(c)(8) above;
(5) Charges for special items or services billed
separately to (and in addition to Expense Adjustment statements) and paid by
tenants of the Building; or
(6) Leasing commissions or other expenses solely
related to marketing space in the Building.
If at any time the Building is not fully occupied or Landlord is not supplying
services to all rentable areas of the Building during an entire calendar year,
then Landlord may adjust actual Operating Expenses to Landlord's estimate of
that amount which would have been paid or incurred by the Landlord as Operating
Expenses had the Building been 95% occupied or serviced, and the Operating
Expenses as so adjusted shall be deemed to be the actual Operating Expenses for
such calendar year. If Landlord does not furnish during any Adjustment Year any
particular work or service (the cost of which, if performed by Landlord, would
constitute an Operating Expense) to a tenant which has undertaken to perform
such work or service in lieu of the performance thereof by Landlord, then
Operating Expenses shall be deemed to be increased by an amount equal to the
additional expense which would reasonably have been incurred during such
Adjustment Year by Landlord if it had, at its cost, furnished such work or
service to such tenant. The provisions of the preceding sentences will apply
only to those Operating Expenses that either vary with occupancy or by reason of
one or more tenants not receiving goods or services the cost of which
constitutes all or part of such Operating Expenses.
(d) "Taxes" shall mean and include all federal, state and
local government taxes, assessments and charges of any kind or nature, whether
general, special, ordinary or extraordinary, paid by
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Landlord in a calendar year with respect to the Property; provided, real estate
taxes and special assessments (except as provided below) shall be included in
Taxes for a calendar year only to the extent such taxes and assessments are paid
during such calendar year, regardless of when assessed. Taxes shall include,
without limitation, real estate and transit district taxes and assessments,
sales and use taxes (except to the extent included in Operating Expenses), ad
valorem taxes, personal property taxes, any lease or lease transaction tax and
all taxes, assessments and charges in lieu of, substituted for, or in addition
to, any or all of the foregoing taxes, assessments and charges. Notwithstanding
any provision of this Section 4.01(d) to the contrary, Taxes shall not include
any federal, state or local governmental income, franchise, capital stock,
inheritance or estate taxes, except to the extent such taxes are in lieu of or a
substitute of any of the taxes, assessments and charges previously described in
this Section 4.01(d).
Taxes shall also include the amount of all fees, costs and
expenses (including, without limitation, attorneys' fees and court costs) paid
or incurred by Landlord each calendar year in seeking or obtaining any refund or
reduction of Taxes or for contesting or protesting any imposition of Taxes,
whether or not successful and whether or not attributable to Taxes assessed,
paid or incurred in such calendar year. If any special assessment payable in
installments is levied against all or any part of the Property, then at the
Landlord's discretion, Taxes for the calendar year in which such assessment is
levied and for each calendar year thereafter shall include only the amount of
any installments of such assessment plus interest thereon paid or payable during
such calendar year (without regard to any right to pay, or payment of, such
assessment in a single payment). If the Building is not assessed as fully
improved for any calendar year or part thereof, Landlord may make an adjustment
to the amount of Taxes for each such calendar year to reflect the amount of
Taxes which would have been assessed if the Building had been assessed as fully
improved, and the amount of any such adjustment shall be included on the amount
of Taxes for such calendar year. If the Building is not fully leased and
occupied by tenants during all or any portion of a calendar year, then Landlord
may make an adjustment to the amount of Taxes for such calendar year to reflect
the amount of Taxes which would have been assessed if the Building had been
fully leased and occupied by tenants during such calendar year, and the amount
of any such adjustment shall be included in the amount of Taxes for such
calendar year.
4.02 PAYMENT OF RENT. Tenant shall pay to Landlord's Management
Agent, or such other person or entity or at such other place as Landlord may
from time to time direct in writing, all amounts due Landlord from Tenant
hereunder, including, without limitation, Monthly Base Rent, Expense Adjustment
and Tax Adjustment (Expense Adjustment and Tax Adjustment being defined
hereinafter and referred to collectively as "Adjustments", and all amounts due
hereunder being referred to collectively as "Rent"). Except as specifically
provided in this Lease, Rent shall be paid without abatement, deduction or
setoff of any kind, it being the intention of the parties that, to the full
extent permitted by law, Tenant's covenant to pay Rent shall be independent of
all other covenants contained in this Lease, including Tenant's continued
occupancy of the Premises. Tenant's obligation hereunder to pay Rent accruing
during the Term (whether or not the amount thereof is determined or determinable
as of the date of termination or expiration of this Lease) shall survive the
termination of this Lease.
4.03 PAYMENT OF MONTHLY BASE RENT. Monthly Base Rent shall be
payable monthly, in advance, on the first day of each calendar month during the
Term, except that Monthly Base Rent for the first full calendar month of the
Term for which Monthly Base Rent is due shall be paid concurrently with the
execution of this Lease by Tenant. If the Term commences on a day other than the
first day of a calendar month, then Monthly Base rent for such month will be
prorated on a per diem basis based on a 30 day month and the excess of the
installment of Monthly Base Rent paid concurrently with the execution of this
Lease by Tenant over such prorated amount for the first calendar month of the
Term shall be applied against Monthly Base Rent for the first full calendar
month of the Term.
4.04 EXPENSE AND TAX ADJUSTMENT. In addition to Monthly Base Rent,
Tenant shall pay with respect to each Adjustment Year (i) an amount equal to
Tenant's Share of Operating Expenses for the Adjustment Year in excess of
Operating Expenses for the Base Year ("Expense Adjustment") and (ii) an amount
equal to Tenant's Share of Taxes for the Adjustment Year in excess of Taxes for
the Base Year ("Tax Adjustment"). As to any Adjustment Year which does not begin
on January 1st or does not end on December 31st, Expense Adjustment and Tax
Adjustment with respect to such Adjustment Year shall be prorated on a per diem
basis.
Expense Adjustment and Tax Adjustment with respect to each
Adjustment Year shall be paid in monthly installments in advance on the first
day of each calendar month during such Adjustment Year in amounts sufficient
to satisfy payment of the Expense Adjustment and Tax Adjustment for such
Adjustment Year as reasonably estimated by Landlord from time to time prior
to or during any Adjustment Year and communicated to Tenant by written notice
("Estimated Expense Adjustment" and "Estimated Tax Adjustment",
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respectively). If Landlord does not deliver such a notice (an "Estimate") prior
to the commencement of any Adjustment Year, Tenant shall continue to pay
Estimated Expense Adjustment and Estimated Tax Adjustment as provided in the
most recently received Estimate (or Updated Estimate, as defined below) or the
latest determined Expense Adjustment or Tax Adjustment, whichever is greater,
until the Estimate for such Adjustment Year is delivered to Tenant. If, during
any Adjustment Year, Landlord reasonably determines that Taxes or Operating
Expenses for such Adjustment Year have increased or will increase, Landlord may
deliver to Tenant an updated Estimate ("Updated Estimate") for such Adjustment
Year. Monthly installments of Estimated Expense Adjustment and Estimated Tax
Adjustment paid subsequent to Tenant's receipt of the Estimate or Updated
Estimate for any Adjustment Year shall be in the amounts provided in such
Estimate or Updated Estimate, as the case may be. In addition, Tenant shall pay
to Landlord within twenty (20) days after receipt of such Estimate or Updated
Estimate, the amount, if any, by which the aggregate installments of the
Estimated Expense Adjustment and Estimated Tax Adjustment provided in such
Estimate or Updated Estimate, as the case may be, with respect to prior months
in such Adjustment Year exceed the aggregate installments of the Estimated
Expense Adjustment and Estimated Tax Adjustment paid by Tenant with respect to
such prior months.
Within ninety (90) days after the end of each Adjustment Year, or as
soon thereafter as practicable, Landlord shall send to Tenant a statement (the
"Final Adjustment Statement") showing (i) the calculation of the Expense
Adjustment and Tax Adjustment for such Adjustment Year, (ii) the aggregate
amount of the Estimated Expense Adjustment and Estimated Tax Adjustment
previously paid by Tenant for such Adjustment Year; and (iii) the amount, if
any, by which the aggregate amount of the installments of Estimated Expense
Adjustment paid by Tenant with respect to such Adjustment Year exceeds or is
less than the Expense Adjustment for such Adjustment Year and the amount, if
any, by which the aggregate amount of the installments of Estimated Tax
Adjustment paid by Tenant with respect to such Adjustment Year exceeds or is
less than the Tax Adjustment for such Adjustment Year. Landlord shall have the
right to xxxx Tenant separately for Expense Adjustment and Tax Adjustment in
which event the provisions hereof shall apply to each as a separate Final
Adjustment Statement, Tenant shall pay the amount of any deficiency to Landlord
within twenty (20) days after the sending of such statement. Any excess shall,
at Landlord's option, either be credited against payments past or next due under
this Lease or refunded by Landlord, provided Tenant is not then in default under
this Lease.
On reasonable advance notice, which Tenant shall give during the thirty
(30) day period following the receipt by Tenant of the Final Adjustment
Statement with respect to each Adjustment Year, Landlord will make available to
Tenant Landlord's books and records maintained with respect to the Operating
Expenses or Taxes, as applicable, for such Adjustment Year. If Tenant wishes to
contest any item within any Final Adjustment Statement, Tenant shall do so in a
written notice ("Contest Notice") received by Landlord within thirty (30) days
following the date Landlord makes such books and records available to Tenant.
The Contest Notice shall specify in detail the item or items being contested and
the specific grounds therefor. However, the giving of a Contest Notice shall not
relieve Tenant from the obligation to pay any deficiency in such statement in
accordance with this Section 4.04. If Tenant timely gives a Contest Notice to
Landlord, any dispute with respect to any item or items in such Final Adjustment
Statement, including any calculations therein, shall be submitted to Landlord's
independent certified public accountant or firm of certified public accountants
("CPA") whose decision shall be binding on the parties. Tenant shall pay on
demand all fees of the CPA with respect to any such dispute, unless the amount
of the Expense Adjustment or Tax Adjustment, as applicable, as provided in such
Final Adjustment Statement exceeds the amount of Expense Adjustment or Tax
Adjustment as finally determined by the CPA by more than 10%. Notwithstanding
anything else in this Section 4.04 to the contrary, if Tenant fails to give a
Contest Notice within said thirty (30) day period or fails to pay any deficiency
in such statement in accordance with this Section 4.04, whether or not
contested, Tenant shall have no further right to contest any item or items in
such Final Adjustment Statement and Tenant shall be deemed to have accepted such
Final Adjustment Statement.
5.
SECURITY DEPOSIT
As security for the performance of its obligations under this Lease,
Tenant, on execution of this Lease, shall deposit with Landlord a security
deposit in the amount set forth in Section 1.11 hereof (the "Security
Deposit"), and agrees from time to time to pay Landlord within three (3)
business days following receipt of a request therefor, any sum or sums of
money paid or deducted therefrom by Landlord pursuant to the provisions of
this Lease, in order that at all times during the Term there shall be
continually deposited with the Landlord, a sum which shall never be less than
the amount originally deposited. The Security Deposit shall not be deemed an
advance payment of Rent, nor a measure of damages for any default by Tenant
under this Lease, nor shall
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the Security Deposit be a bar or a defense to any action that Landlord may
commence against Tenant. In the event of any default by Tenant hereunder,
Landlord shall have the right, but shall not be obligated, to apply or retain
all or any portion of the Security Deposit in payment of Tenant's obligations
hereunder, but any such application or retention shall not have the effect of
curing any such default. Landlord shall not be obligated to hold the Security
Deposit as a separate fund, but may commingle the same with its other funds.
Upon expiration of the Term hereof, the Security Deposit (or the balance thereof
remaining after payment out of the same or deduction therefrom as provided
above) shall be returned to the Tenant no later than thirty (30) days following
such expiration. No interest shall be payable with respect to the Security
Deposit. Landlord or any owner of the Building may transfer or assign the
Security Deposit to any new owner of the Building or to any assignee or
transferee of this Lease or may credit the Security Deposit against the purchase
price of the Building and upon such transfer or credit all liability of the
transferor or assignor of such security shall cease and come to an end. No
Mortgagee (as hereinafter defined) or person or entity who acquires legal or
beneficial title to the Building from such Mortgagee shall be liable for the
return of the Security Deposit unless such funds are actually received by such
Mortgagee or purchaser.
6.
USE OF PREMISES
6.01 Tenant shall use and occupy the Premises solely for general
office purposes in connection with the operation of Tenant's customary business
and for no other use or purpose.
6.02 Tenant shall not commit, or suffer to be committed, any
annoyance, waste, nuisance, act or thing against public policy, or which may
disturb the quiet enjoyment of Landlord or any other tenant or occupant of the
Building. Tenant agrees not to deface or damage the Building in any manner.
7.
RULES AND REGULATIONS
Tenant agrees to observe the reservations and rights reserved to
Landlord in this Lease. Tenant shall comply, and shall cause its employees,
agents, clients, customers, guests and invitees to comply, with the rules and
regulations attached hereto as Exhibit B, and such revised or additional rules
and regulations adopted by Landlord during the Term and applied generally to all
office tenants of the Building. Any violation by Tenant or any of its employees,
agents, clients, customers, guests or invitees of any of the rules and
regulations so adopted by Landlord shall be a default by Tenant under this Lease
and may be restrained by court injunction; but whether or not so restrained,
Tenant acknowledges and agrees that it shall be and remain liable for all
damages, loss, costs and expense resulting from any violation by Tenant or such
other persons of any of said rules and regulations. Nothing in this Lease
contained shall be construed to impose upon Landlord any duty or obligation to
enforce said rules and regulations or the terms, covenants and conditions of any
other lease against any other tenant or any other persons, and Landlord shall
not be liable to Tenant for violation of the same by any other tenant, its
employees, agents, guests, invitees, licensees, customers, clients, family
members, or by any other person.
8.
SERVICES PROVIDED
8.01 LANDLORD SHALL FURNISH:
(a) Cooled or heated air in season to provide a
temperature condition required, in Landlord's sole judgment, for comfortable
occupancy of the Premises under normal business operations and in the absence of
the use of equipment which affects the temperature or humidity which would
otherwise be maintained in the Premises, daily from 8:00 A.M. to 6:00 P.M.
(Saturdays 8:00 A.M. to 1:00 P.M.), Sundays and Holidays (as defined below)
excepted. If the use of heat generating equipment in the Premises affects the
temperatures otherwise maintained by the air conditioning system for normal
business operations, and thereby requires, in the sole judgment of Landlord, the
modification of the air conditioning or ventilation systems (including
installation of supplementary air conditioning units in the Premises), Landlord
may elect to perform such modification, and the cost thereof shall be paid by
Tenant to Landlord at the time of completion of such modification, or Landlord
may elect to require Tenant to perform such modification, at Tenant's sole cost
and expense. Any increased expense in maintaining or operating the system
resulting, in Landlord's sole opinion, from such modification shall be paid by
Tenant. In addition, Tenant shall, at Tenant's expense, perform all
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maintenance on any supplementary air conditioning units installed in
accordance with this Section 8.01(a) unless, in the exercise of its right
hereby expressly reserved, Landlord elects to perform any part or all of such
maintenance at Tenant's expense. Tenant agrees to keep and cause to be kept
closed all windows in the Premises and at all times to cooperate fully with
Landlord in the operation of said system and to abide by all reasonable
regulations and requirements which Landlord may prescribe to permit the
proper functioning and protection of said heating, ventilation and air
conditioning systems. For purposes of this Lease, "Holidays" means those
federal or state holidays or such other days which Landlord, in its sole
discretion, designates to Tenant as "Holidays" for purposes of this Lease,
such designation being subject to change from time to time.
(b) Washroom facilities, not within the Premises (unless Tenant
leases an entire floor), for use by Tenant in common with other tenants in
the Building.
(c) Janitor service in and about the Premises as customarily
provided in similar office buildings in the Houston, Texas area, Saturdays,
Sundays and Holidays excepted.
(d) Passenger elevator service in common, with other tenants and
occupants, daily from 8:00 A.M. to 6:00 P.M., Saturdays, Sundays and Holidays
excepted. Such normal passenger elevator service, if furnished at other
times, shall be optional with Landlord and shall never be deemed a continuing
obligation. Landlord, however, shall provide limited passenger service daily
at all times such normal passenger service is not furnished. Landlord shall
provide limited freight elevator service at such times as Landlord shall
determine.
(e) Electric lighting service for all public portions of the
Building.
(f) Electric energy that Tenant shall require for normal office
equipment such as typewriters, dictation machines, calculators, other
machines or similar low electrical consumption, and building standard lighting
in the Premises. Without Landlord's prior written consent, Tenant shall not be
entitled to employ lighting in the Premises which consumes electrical current
in excess of building standard nor utilize any office equipment that consumes
more than 0.5 kilowatts per hour per square foot contained within the
Premises at rated capacity or requires a voltage other than 120 volts single
phase.
(g) Replacement of fluorescent light bulbs in any fluorescent
light fixtures which are located in the Premises and which contain the
building standard light fixture.
8.02 Tenant agrees that compliance with any mandatory or voluntary
energy conservation measures or other legal requirements instituted by any
appropriate governmental authority shall not be considered a violation of any
terms of this Lease and shall not entitle Tenant to terminate this Lease or
require abatement or reduction of Rent hereunder.
8.03 Tenant acknowledges that it shall be responsible for making
arrangements for and shall pay the cost of the installation, repair and
maintenance of its own telephone system. At no time shall Tenant permit the
use of electricity consumed in the Premises to exceed the capacity of feeders
to the Building or the risers or wiring installation. Landlord does not
warrant or represent that such capacity shall be adequate for Tenant's
purposes. Tenant's excessive use or consumption of heating or air
conditioning or excessive use or consumption of electrical services in
violation of Section 8.01(f) above, without Landlord's prior written consent,
shall constitute a default under this Lease.
8.04 Landlord shall in no event be obligated to furnish any services or
utilities, other than those specified in Section 8.01. If Landlord elects to
furnish services or utilities requested by Tenant in addition to those
specified in Section 8.01 (including utility services at times other than
those specified), Tenant shall pay to Landlord Landlord's then prevailing
rates for such services and utilities within ten (10) days after receipt of
Landlord's invoices therefor. If Tenant shall fail to make any such payment,
Landlord may, without notice to Tenant, and in addition to Landlord's other
remedies under this Lease, discontinue any or all of the additional services.
No failure to furnish or discontinuance of any service pursuant to this
Section 8 shall result in any liability of Landlord to Tenant or be deemed to
be a constructive eviction or a disturbance of Tenant's use of the Premises.
9.
LEASEHOLD IMPROVEMENTS; ALTERATIONS
9.01 Tenant shall not, without Landlord's prior written consent, permit
any alteration, improvement, addition or installation in or to the Premises
(all of which is collectively referred to as "Work"), including
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installation of telephone, computer or internal sound or paging systems or
other similar systems, or the performance of any decorating, painting and
other similar work in the Premises. In the event Landlord consents to any
Work, Landlord reserves the right to cause such Work to be performed by
contractors and subcontractors designated by Landlord. Tenant shall pay the
cost of preparation of the plans for the Work, all permit fees and the fees
of said contractors and subcontractors. Except with respect to the Work
described in the Workletter, if any, or Work performed by Landlord's
designated contractor as general contractor, Tenant shall pay Landlord's
designated contractor a supervision fee equal to 10% of the total cost of
such Work. Before commencement of any Work or delivery of any materials into
the Premises or the Building, Tenant shall furnish to Landlord, for its prior
written approval, architectural plans and specifications certified by a
licensed architect or engineer reasonably acceptable to Landlord, and such
other documentation as Landlord shall reasonably request. Tenant agrees to
hold Landlord, its beneficiaries and their respective agents, partners,
officers, servants and employees forever harmless against all claims and
liabilities of every kind, nature and description which may arise out of or in
any way be connected with any such Work. At the request of Landlord, Tenant
will deliver a written indemnity against claims or damages to tenants or
occupants of any other premises affected by such Work. Tenant shall pay
Landlord's reasonable costs of reviewing plans and materials submitted to
Landlord for approval. Tenant shall pay the cost of all such Work and the
cost of decorating and altering the Premises and the Building occasioned by
any such Work. Landlord shall have the right to require Tenant to deliver to
Landlord cash or other security in an amount and form acceptable to Landlord
to be held in escrow by Landlord to assure prompt payment of the cost of any
such Work. All alterations, improvements, additions and installations to or in
the Premises shall become part of the Premises at the time of installations.
9.02 In the event that Landlord permits Tenant to hire its own
contractors for the performance of any Work, then in addition to the
provisions of Section 9.01, the following shall apply: (i) prior to the
commencement of the Work or the delivery of any materials to the Building,
Tenant shall submit to Landlord for Landlord's approval, the names and
addresses of all contractors, contracts, necessary permits and licenses,
certificates of insurance (including, without limitation, Worker's
compensation, comprehensive general liability and adequacy of design
insurance) and instruments of indemnification and waivers of lien against any
and all claims, costs, expenses, damages and liabilities which may arise in
connection with the Work, all in such form and amount as shall be
satisfactory to Landlord; (ii) all such Work shall be done only by union
contractors or mechanics approved by Landlord (which approval shall not be
unreasonably withheld) and at such time and in such manner as Landlord may
from time to time designate; (iii) upon completion of any Work, Tenant shall
furnish Landlord with as-built plans, contractors' affidavits, full and final
waivers of lien, receipted bills covering all labor and materials expended
and used in connection with such Work; and (iv) all such Work shall comply
with all insurance requirements, all laws, ordinances, rules and regulations
of all governmental authorities, and all collective bargaining agreements
applicable to the Building, and shall be done in a good and workmanlike
manner and with the use of good grades and new materials.
9.03 Without limitation of the provisions of Section 9.01, Tenant agrees
not to suffer or permit any lien of any mechanic or materialmen to be placed
or filed against the Premises or the Building. In case any such lien shall be
filed, Tenant shall immediately satisfy and release such lien of record. If
Tenant shall fail to have such lien immediately satisfied and released of
record, Landlord may, on behalf of Tenant, without being responsible for
making any investigation as to the validity of such lien and without limiting
or affecting any other remedies Landlord may have, pay the same and Tenant
shall pay Landlord on demand the amount so paid by Landlord.
9.04 Subject to the rules and regulations, Tenant, at any time Tenant is
not in default hereunder, may remove from the Premises its movable trade
fixtures and personal property. Tenant shall repair any damage to the
Premises caused by such removal, failing which Landlord may remove the same
and repair the Premises and Tenant shall pay the cost thereof to Landlord on
demand.
10.
CONDITION OF PREMISES
10.01 Prior to the Commencement Date, Landlord shall, at Landlord's sole
expense, paint the Premises with Building standard paint and install Building
standard carpet in the Premises. Except for the foregoing work, no agreements
or representations have been made to Tenant respecting the condition of the
Premises. By taking possession, Tenant conclusively waives all claims relating
to the condition of the Premises and accepts the Premises as being free from
defects and in good, clean and sanitary order, condition and repair, and
agrees to keep the Premises in such condition.
8
10.02 Subject to Section 12, Tenant shall, at its own expense, keep the
Premises clean and safe and in as good repair and condition as when all of the
work described in Section 10.01 was completed (or as to subsequent Work, as
and when such Work was completed) and shall promptly and adequately repair
all damage to the Premises and the Building caused by Tenant or any of its
employees, agents, guests or invitees, including replacing or repairing all
damaged or broken glass, fixtures and appurtenances resulting from any such
damage, under the supervision and with the approval of Landlord. If Tenant
does not promptly and adequately make such repairs or replacements, Landlord
may, but need not, make such repairs and replacements and Tenant shall pay
Landlord the cost thereof on demand.
10.03 Landlord, subject to Sections 12 and 14, shall be obligated only
to maintain and make necessary repairs to the structural elements of the
Building, the public corridors, public washrooms and lobby of the Building,
the exterior windows of the Building, and subject to the provisions of Sections
8, 12 and 14, the electrical, plumbing, heating, ventilation and air
conditioning systems of the Building.
11.
SURRENDER
11.01 At the termination of this Lease, by lapse of time or otherwise,
Tenant shall surrender possession of the Premises to Landlord and deliver all
keys to the Premises and all locks therein to Landlord and make known to the
Landlord the combination of all combination locks in the Premises, and shall,
subject to Sections 12 and 13, return the Premises and all equipment and
fixtures of the Landlord therein to Landlord in broom clean condition and in
as good condition as when Tenant originally took possession, ordinary wear
and tear excepted, failing which Landlord may restore the Premises and such
equipment and fixtures to such condition and the Tenant shall pay the cost
thereof to Landlord on demand.
11.02 Upon termination of this Lease or of Tenant's right to possession
of the Premises, by lapse of time or otherwise, all installations, additions,
partitions, hardware, light fixtures, floor coverings, non-trade fixtures and
improvements, temporary or permanent, whether placed there by Tenant or
Landlord, shall be Landlord's property and shall remain upon the Premises, all
without compensation, allowance or credit to Tenant; provided, however, that
if prior to any such termination or within thirty (30) days thereafter
Landlord so directs by notice, Tenant, at Tenant's sole expense, shall
promptly remove such of the installations, additions, partitions, hardware,
light fixtures, floor coverings, non-trade fixtures and improvements in or to
the Premises by or on behalf of Tenant as are designated in such notice and
repair any damage to the Premises caused by such removal, failing which
Landlord may remove the same and repair the Premises, and Tenant shall pay the
cost thereof to Landlord on demand.
11.03 All obligations of Tenant under this Section 11 shall survive the
termination of this Lease, by lapse of time or otherwise.
12.
DAMAGE OR DESTRUCTION
12.01 If, during the Term, more than twenty percent (20%) of either of
the Premises or the Building is damaged or made untenantable by fire or other
casualty, cause, condition or thing whatsoever, Landlord may, by written
notice to Tenant given within one hundred twenty (120) days after such
damage, terminate this Lease. Such termination shall become effective as of
the date of such damage if the Premises are substantially untenantable,
otherwise as of the date thirty (30) days following the service of such
notice of termination of this Lease. Unless this Lease is terminated, if the
Premises are made partially or wholly untenantable as aforesaid, Landlord,
subject to the provisions of this Section 12, shall restore the same at
Landlord's expense with reasonable promptness. If, as a result of a fire or
other casualty, the Premises are made partially or wholly untenantable, and if
Landlord fails to commence such restoration within seventy-five (75) days
after Landlord is able to take possession of the damaged space in the Premises
and fails to reasonably diligently complete the restoration of the Premises,
Tenant may terminate this Lease by giving notice thereof to Landlord (i) not
later than eighty-five (85) days after Landlord is able to take possession if
Landlord has not theretofore commenced such restoration or (ii) prior to the
substantial completion of such restoration, if Landlord commences such
restoration within said seventy-five (75) day period, but fails to reasonably
diligently complete the restoration of the Premises, and such termination
shall be effective as of the fifth (5th) day after receipt of said notice by
Landlord. In the event of termination of this Lease, Monthly Base Rent and
Adjustments shall be prorated on a per diem basis and paid only to the
effective date of such termination. If all of the Premises are untenantable
but this Lease is not terminated, all Monthly Base Rent and Adjustments shall
xxxxx from the
9
date of the fire or other casualty until the Premises are ready for
occupancy and reasonably accessible to Tenant. If part of the Premises is
untenantable, Monthly Base Rent and Adjustments shall be prorated on a per
diem basis and apportioned in accordance with the part of the Premises which
is usable by Tenant until the damaged part is ready for Tenant's occupancy.
In all cases, with respect to Landlord's obligations under this Section 12,
such obligations shall be adjusted and all time periods extended by the
period on account of delay caused by adjustment of insurance loss, strikes,
governmental approvals, labor difficulties or any cause beyond Landlord's
reasonable control. Notwithstanding anything to the contrary in this Section
12.01, Tenant shall not have the right to terminate this Lease and Rent shall
in no event xxxxx if such fire or other casualty, cause, condition or thing
was caused by the act or neglect of Tenant, its employees or agents.
The following provision shall apply if, as an economic concession set
forth in this Lease, Landlord has granted Tenant a credit against Monthly
Base Rent or Adjustments, or both, or has granted Tenant an abatement period
with respect to Monthly Base Rent or Adjustments, or both (such credits or
the amount of Monthly Base Rent or Adjustments which would have accrued but
for such abatement period being hereinafter referred to as "Rent
Concession"): In the event that, pursuant to any provision of this Lease,
Monthly Base Rent or Adjustments xxxxx, in whole or in part, by reason of the
occurrence of a fire or other casualty ("Casualty Abatement") and this Lease
is not terminated, then to the extent that the period of any Casualty
Abatement coincides with any period that a Rent Concession would otherwise
have been applicable, the Rent Concession or such portion thereof as would
otherwise have been applicable if the Casualty Abatement had not occurred
("Rent Concession Balance") will be deferred until the Casualty Abatement
period expires and the Rent Concession Balance will be effective and applied
at the rate set forth in this Lease during the period immediately following
the expiration of the Casualty Abatement, provided that if the Casualty
Abatement does not apply to all Monthly Base Rent or Adjustments then the
Rent Concession Balance will apply to the full extent possible to that
portion of the Monthly Base Rent or Adjustments, or both, which is not abated
during the Casualty Abatement period. Notwithstanding the foregoing, (a) the
Rent Concession Balance will not be applicable to the extent it exceeds the
amount of rent loss insurance proceeds recovered by Landlord with respect to
the Casualty Abatement, (b) Tenant will not be entitled to any cash refund or
credit against any other amounts due Landlord by reason of the foregoing
provision and (c) the Term will not be extended by reason of the
applicability of the foregoing provision.
12.02 If Landlord repairs and restores the Premises as provided in
Section 12.01 above, Landlord shall repair or restore any decorations
(excluding personal property), alterations or improvements to the Premises
installed or approved by Landlord. Tenant shall be responsible for repair and
replacement of trade fixtures, furnishings, equipment, personal property or
leasehold improvements belonging to Tenant. Notwithstanding any provision of
this Section 12 to the contrary, Landlord shall not be obligated to make any
restorations or repairs to the Premises, the cost of which exceed the
proceeds of insurance received by Landlord with respect thereto.
12.03 Notwithstanding anything to the contrary in this Section,
Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises or the Building when the damage resulting from any
casualty covered under this Section occurs during the last twelve (12) months
of the Term or any extension thereof.
13.
EMINENT DOMAIN
13.01 In the event that the whole or a substantial part of the Premises
shall be condemned or taken in any manner for any public or quasi-public use
(or sold under threat of such taking), and as a result thereof, the remainder
of the Premises cannot be used for the same purpose as prior to such taking,
this Lease shall terminate as of the date possession is taken; provided,
however, if Landlord elects to make comparable space in the Building
available to Tenant under the same Rent and terms as herein provided, Tenant
shall accept such space and this Lease shall then apply to such space.
13.02 If less than a substantial part of the Premises shall be so
condemned or taken (or sold under threat thereof) and after such taking the
Premises can be used for the same purposes as prior thereto, this Lease shall
cease only as to the part so taken as of the date possession shall be taken
by such authority, and Tenant shall pay full Rent up to that date (with
appropriate refund by Landlord of such Rent attributable to the part so taken
as may have been paid in advance for any period subsequent to the date
possession is taken) and thereafter Monthly Base Rent and Adjustments shall be
equitably adjusted to reflect the reduction in the Premises by reason of such
taking. Landlord shall, at its expense, make all necessary repairs or
alterations to the Building so as to constitute the remaining Premises a
complete architectural unit, provided that Landlord
10
shall not be obligated to undertake any such repairs or alterations if the cost
thereof exceeds the award resulting from such taking.
13.03 If part of the Building shall be so condemned or taken (or sold
under threat thereof), or if any adjacent property or street shall be
condemned or improved by a public or quasi-public authority in such a manner
as to alter the use of any part of the Premises or the Building and, in the
opinion of Landlord, the Building or any part thereof should be altered,
demolished or restored in such a way as to materially alter the Premises,
Landlord may terminate this Lease by notifying Tenant of such termination
within sixty (60) days following the taking of possession by such public or
quasi-public authority, and this Lease shall expire on the date specified in
the notice of termination, which shall be not less than sixty (60) days after
the giving of such notice, as fully and completely as if such date were the
date hereinbefore set forth as the expiration of the Term, and the Monthly
Base Rent and Adjustments hereunder shall be apportioned as of such date.
13.04 Landlord shall be entitled to receive the entire award, including
the damages for the property taken and damages to the remainder, with respect
to any condemnation proceedings affecting the Building. Tenant agrees not to
make any claim against Landlord or the condemning authority for any portion
of such award or compensation, whether attributable to the value of any
unexpired portion of the Term, the loss of profits, goodwill, leasehold
improvements or otherwise, Tenant irrevocably assigning any and all such
claims to Landlord.
14.
WAIVER OF CERTAIN CLAIMS
14.01 To the extent not expressly prohibited by law, Tenant releases
Landlord, its beneficiaries, and their respective agents, partners, officers,
servants and employees, from, and waives, all claims for damages to person or
property sustained by Tenant or by any occupant of the Premises or the
Building, or by any other person, resulting directly or indirectly from fire
or other casualty, cause or any existing or future condition, defect, matter
or thing in the Premises, the Building or any part thereof, or from any
equipment or appurtenance therein, or from any accident in or about the
Building, or from any act or neglect of any tenant or other occupant of the
Building or of any other person, other than Landlord or its agents.
14.02 To the extent not expressly prohibited by law, Tenant agrees to
hold harmless and indemnify Landlord, all Mortgagees and all of their
respective agents, beneficiaries, partners, officers, servants and employees,
against claims and liabilities, including reasonable attorneys' fees, for
injuries to all persons and damage to or theft or misappropriation or loss
of property occurring in or about the Premises arising from Tenant's
occupancy of the Premises or the conduct of its business, or from activity,
work, or thing done, permitted or suffered by Tenant, its employees, agents,
guests or invitees in or about the Premises, or from any breach or default on
the part of Tenant in the performance of any covenant or agreement on the
part of Tenant to be performed pursuant to the terms of this Lease or due to
any other act or omission of Tenant, its agents or employees. Landlord may,
at its option, repair such damage or replace such loss, and Tenant shall upon
demand by Landlord reimburse Landlord for all costs of such repairs,
replacement and damages in excess of amounts, if any, paid to Landlord under
insurance covering such damages. In the event any action or proceeding is
brought against Landlord, any Mortgagee or any of their respective agents,
beneficiaries, partners, officers, servants or employees by reason of any such
claims, then, upon notice from Landlord, Tenant covenants to defend such
action or proceeding by counsel reasonably satisfactory to Landlord.
14.03 If any damage to the Building or any equipment or appurtenance
therein, whether belonging to Landlord or to other tenants in the Building,
results from any act or neglect of Tenant, its agents, employees, guests or
invitees, Tenant shall be liable therefor and Landlord may, at Landlord's
option, repair such damage, and Tenant shall, upon demand by Landlord,
reimburse Landlord the total cost of such repairs and damages to the Building.
If Landlord elects not to repair such damage, Tenant shall promptly repair
such damages at its own cost and in accordance with the provisions of
Section 9 as if such repair constituted Work under such Section. If Tenant
occupies space in which there is exterior glass, then Tenant shall be
responsible for the damage, breakage or repair of such glass, except to the
extent such loss or damage is recoverable under Landlord's insurance, if any.
11
15.
INSURANCE; WAIVER OF SUBROGATION
15.01 Tenant shall procure and maintain at its own cost policies of
commercial general public liability and property damage insurance with
contractual liability coverage for the agreements of indemnity provided for
under this Lease and a broad form general liability endorsement to afford
protection with such limits as may be reasonably requested by Landlord from
time to time (which as of the date hereof shall be not less than $1,000,000
under a combined single limit of coverage) insuring Landlord and its
respective agents, partners, officers, servants and employees and Tenant from
all claims, demands or action for injury to or death of any person or persons
and for damage to property made by, or on behalf of, any person or persons,
firm or corporation, arising from, related to or connected with the Premises.
The insurance shall be issued by companies and be in form and substance
satisfactory to Landlord and any Mortgagee of the Building and shall, if
requested by Landlord or any Mortgagee, include any Mortgagee and its
respective agents and employees as additional insureds. The aforesaid
insurance policies shall provide that they shall not be subject to
cancellation except after at least thirty (30) days' prior written notice to
Landlord and all such Mortgagees (unless such cancellation is due to
non-payment of premiums, in which event ten (10) days' prior written notice
shall be required). The original insurance policies (or certificates thereof
satisfactory to Landlord), together with satisfactory evidence of payment of
the premium thereon, shall be deposited with Landlord prior to the
commencement of the Term and renewals thereof not less than thirty (30) days
prior to the end of the term of each such coverage.
15.02 Tenant shall carry insurance of the type typically referred to as
"all risk" insurance, including water damage, insuring its interest in the
tenant improvements in the Premises (to the extent not covered by Landlord's
property insurance) and its interest in all its personal property and trade
fixtures located on or within the Building, without limitation, its office
furniture, equipment and supplies.
15.03 Notwithstanding any other provision of this Lease to the
contrary, Landlord and Tenant each hereby waive all rights of action against
the other for loss or damage to the Premises, or the Building and property of
Landlord and Tenant in the Building, which loss or damage is insured or is
required pursuant to this Lease to be insured by valid and collectible
insurance policies to the extent of the proceeds collected or collectible
under such insurance policies, subject to the condition that this waiver
shall be effective only when the waiver is permitted by such insurance
policies or when, by the use of good faith effort, such waiver could have
been permitted in the applicable insurance policies. The policies of
insurance required to be maintained by Tenant under the terms of this Lease
shall contain waiver of subrogation clauses in form and content satisfactory
to Landlord.
15.04 Tenant shall not conduct or permit to be conducted by its
employees, agents, guests or invitees any activity, or place any equipment in
or about the Premises or the Building that will in any way increase the cost
of fire insurance or other insurance on the Building. If any increase in the
cost of fire insurance or other insurance is stated by any insurance company
or by the applicable Insurance Rating Bureau, if any, to be due to any
activity or equipment of Tenant in or about the Premises or the Building,
such statement shall be conclusive evidence that the increase in such cost is
due to such activity or equipment and, as a result thereof, Tenant shall be
liable for the amount of such increase. Tenant shall reimburse Landlord for
such amount upon written demand from Landlord and any such sums shall be
considered additional Rental payable hereunder. Tenant, at its sole expense,
shall comply with any and all requirements of any insurance organization or
company necessary for the maintenance of reasonable fire and public liability
insurance covering the Premises and the Building.
16.
LANDLORD'S RIGHT OF ACCESS
16.01 Landlord and its contractors and representatives shall have the
right to enter the Premises at all reasonable times to perform janitorial and
cleaning services and, after oral notice (except in the case of emergencies),
to inspect the same, to make repairs, alterations and improvements, to
maintain the Premises and the Building, specifically including, but without
limiting the generality of the foregoing, to make repairs, additions or
alterations within the Premises to mechanical, electrical and other
facilities serving other premises in the Building, to post such reasonable
notices as Landlord may desire to protect its rights, to exhibit the Premises
to Mortgagees and purchasers, and, during the one hundred eighty (180) days
prior to the expiration of the Term, to exhibit the Premises to prospective
tenants. In the event the Premises are vacant, Landlord may place upon the
doors or in the windows of the Premises any usual or ordinary "To Let", "To
Lease", or "For Rent" signs. Tenant shall permit Landlord to erect, use,
maintain and repair pipes, cables, conduit, plumbing,
12
vents and wires, in, to and through the Premises to the extent Landlord may
now or hereafter deem necessary or appropriate for the property operation,
maintenance and repair of the Building and any portion of the Premises.
16.02 Landlord shall also have the right to take all material into the
Premises that may be required for the purposes set forth in the foregoing
Section 16.01 without the same constituting a constructive eviction of
Tenant, in whole or in part, and Rent shall not xxxxx (except as provided in
Section 12) while said repairs, alterations, improvements or additions are
being made, by reason of loss or interruption of business of Tenant, or
otherwise. If Tenant shall not be personally present to open and permit entry
into the Premises, at any time, when for any reason entry therein shall be
necessary or desirable, Landlord or Landlord's agents may enter the Premises
by a master key, or may forcibly enter the same, without rendering Landlord
or such agents liable therefor (if during such entry Landlord or Landlord's
agents shall accord reasonable care to Tenant's property), and without in any
manner affecting the obligations and covenants of this Lease.
16.03 In exercising its rights under this Section 16, Landlord will use
reasonable efforts to minimize any interference with Tenant's use or
occupancy of the Premises, provided that Landlord will not be obligated to
provide overtime labor or perform work after regular Building hours.
17.
RIGHTS RESERVED TO LANDLORD
Landlord shall have the following rights, exercisable without notice and
without liability to Tenant for damage or injury to property, person or
business (all claims for damage being hereby waived and released by Tenant)
and without effecting an eviction or disturbance of Tenant's use or
possession or giving rise to any claim for set-offs or abatement of Rent:
(a) To change the name or street address of the Building or
the suite number of the Premises;
(b) To install and maintain signs on the exterior and
interior of the Building;
(c) To designate all sources furnishing sign painting and
lettering, towels, coffee cart service, vending machines or toilet supplies
used or consumed on the Premises and the Building;
(d) To have pass keys to the Premises;
(e) To grant to anyone the exclusive right to conduct any
business or render any service in the Building, provided such exclusive right
shall not operate to exclude Tenant from the use expressly permitted by this
Lease;
(f) To make repairs, additions or alterations to the Building
which may change, eliminate or remove common areas, parking areas, if any, or
the method of ingress to or egress from the Building and such areas, to
convert common areas into leasable areas, or otherwise alter, repair or
reconstruct the common areas or change the use thereof, to change the
arrangement or location of entrances or passageways, doors and doorways,
corridors, elevators, stairs, toilets or other public parts of the Building,
and to close entrances, doors, corridors, elevators, plaza or other
facilities, and to perform any acts related to the safety, protection,
preservation, reletting, sale or improvement of the Premises or the Building;
(g) To have access to all mail chutes or boxes according to the
rules of the United States Postal Service;
(h) To require all persons entering or leaving the Building
during such hours as Landlord may from time to time reasonably determine to
identify themselves to security personnel by registration or otherwise, and
to establish their right to enter or leave and to exclude or expel any
peddler, solicitor or beggar at any time from the Premises or the Building;
(i) To close the Building at 6:00 p.m. on weekdays, 1:00 p.m.
on Saturdays, and all day on Sundays and Holidays, or at such other
reasonable times as Landlord may determine, subject, however, to Tenant's
right to admittance under such regulations as shall be prescribed from time
to time by Landlord in its sole discretion.
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18.
[INTENTIONALLY OMITTED]
19.
TRANSFER OF LANDLORD'S INTEREST;
LIABILITY OF LANDLORD
Upon any sale, assignment or transfer of the Building by Landlord, other
than merely as security, Tenant agrees to look solely to the purchaser,
assignee or transferee with respect to all matters in connection with this
Lease and the transferor Landlord shall be released from any further
obligations hereunder.
20.
TRANSFER OF TENANT'S INTEREST
20.01 Tenant shall not sell, assign, encumber, mortgage or transfer
this Lease or any interest therein, sublet or permit the occupancy or use by
others of the Premises or any part thereof, or allow any transfer hereof or
any lien upon Tenant's interest by operation of law or otherwise (collectively,
a "Transfer") without the prior written consent of Landlord, which consent,
if Landlord does not exercise its rights of a recapture set forth below,
shall not be unreasonably withheld. Any Transfer which is not in compliance
with the provisions of this Section 20, shall, at the option of Landlord,
be void and of no force or effect. Tenant shall, by written notice in the
form specified in the following sentence, advise Landlord of Tenant's
intention on a stated date (which shall not be less than sixty (60) days
after date of Tenant's notice) to sublet, assign, mortgage or transfer any
part or all of the Premises or its interest therein for the balance or any
part of the Term, and, in such event, Landlord shall have the right, to be
exercised by giving written notice to Tenant within thirty (30) days after
receipt of Tenant's notice, to recapture the space described in Tenant's
notice and such recapture notice shall, if given, cancel and terminate this
Lease with respect to the space therein described as of the date stated in
Tenant's notice. Tenant's notice shall state the name and address of the
proposed subtenant, assignee, pledgee, mortgagee or transferee, and a true
and complete copy of the proposed sublease, assignment, pledge, mortgage or
other conveyance and all related documentation, executed by both parties,
shall be delivered to Landlord with said notice. If Tenant's notice shall
cover all of the space hereby demised, and Landlord shall elect to give the
aforesaid recapture notice with respect thereto, then the Term shall expire
and end on the date stated in Tenant's notice as fully and completely as if the
date had been herein definitely fixed for the expiration of the Term. If,
however, this Lease is terminated pursuant to the foregoing with respect to
less than the entire Premises, the Monthly Base Rent and Adjustments then in
effect shall be adjusted on the basis of the number of rentable square feet
retained by Tenant in proportion to the original Rentable Area of Premises,
and this Lease as so amended shall continue thereafter in full force and
effect. In such event, Tenant shall pay the cost of erecting demising walls
and public corridors and making other required modifications to physically
separate the portion of the Premises remaining subject to this Lease from the
rest of the Premises. If Landlord, upon receiving Tenant's notice that it
intends to sublet or assign any such space, shall not exercise its right to
recapture the space described in Tenant's notice, Landlord will not
unreasonably withhold its consent to Tenant's subletting or assigning the
space covered by its notice. Without limiting Landlord's right to reasonably
withhold such consent, the withholding of such consent will be deemed
reasonable if:
(1) In the reasonable judgment of Landlord, the subtenant or
assignee (A) is of a character or engaged in a business or proposes to use
the Premises in a manner which is not in keeping with the standards of
Landlord for the Building or (B) has an unfavorable reputation or credit
standing;
(2) Either the area of the Premises to be sublet or the
remaining area of the Premises is not regular in shape with appropriate means
of ingress or egress suitable for normal renting purposes;
(3) Tenant is in default under this Lease.
20.02 If Tenant individually, or as debtor or debtor in possession or
if a trustee in bankruptcy acting on behalf of Tenant pursuant to the
Bankruptcy Code, 11 U.S.C. 101 ET SEQ., shall sublet or assign the Premises
or any part thereof or assign any interest in this Lease at a rental rate (or
additional consideration) in excess of the then current Monthly Base Rent and
Adjustments per rentable square foot, said excess Rent (or additional
consideration) shall be and become the property of Landlord and shall be paid
to Landlord as it is received by Tenant. If Tenant shall sublet the Premises
or any part thereof, Tenant shall be responsible for all actions and neglect
of the subtenant and its officers, partners, employees, agents, guests and
invitees as
14
if such subtenant and such persons were employees of Tenant. Nothing in this
Section 20.02 shall be construed to relieve Tenant from the obligation to
obtain Landlord's prior written consent to any proposed sublease.
20.03 The consent by Landlord to any Transfer shall not be construed
as a waiver or release of Tenant from liability for the performance of all
covenants and obligations to be performed by Tenant under this Lease, and
Tenant shall remain liable therefor, nor shall the collection or acceptance
of Rent from any assignee, subtenant or occupant constitute a waiver or
release of Tenant from any of its obligations or liabilities under this Lease.
Any consent given pursuant to this Section 20 shall not be construed as
relieving Tenant from the obligation of obtaining Landlord's prior written
consent to any subsequent assignment or subletting.
20.04 If Tenant is a partnership, a withdrawal or change, whether
voluntary, involuntary or by operation of law or in one or more transactions,
of partners owning a controlling interest in Tenant shall be deemed a
voluntary assignment of this Lease and subject to the provisions of this
Section 20. If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or the sale, transfer or
redemption of a controlling interest of the capital stock of Tenant in one or
more transactions, shall be deemed a voluntary assignment of this Lease and
subject to the provisions of this Section 20. However, the preceding sentence
shall not apply to corporations the stock of which is traded through a
national or regional exchange or over-the-counter. Neither this Lease nor any
interest herein nor any estate created thereby shall pass by operation of law
or otherwise to any trustee, custodian or receiver in bankruptcy of Tenant or
any assignee for the assignment of the benefit of creditors of Tenant.
21.
DEFAULT: LANDLORD'S RIGHTS AND REMEDIES
21.01 The occurrence of any one or more of the following matters
constitutes a default ("Default") by Tenant under this Lease:
(a) Failure by Tenant to pay, within five (5) days after the
due date, any rent or any other amounts due and payable by Tenant under this
Lease;
(b) Failure by Tenant to observe or perform any of the
covenants in this Lease in respect to assignment and subletting;
(c) [Intentionally Omitted]
(d) Failure by Tenant to cure forthwith, after notice thereof
from Landlord or another tenant acquiring knowledge thereof, any hazardous
condition that Tenant has created in violation of law or of this Lease;
(e) Failure by Tenant to observe or perform any other
covenant, agreement, condition or provision of this Lease, if such failure
shall continue for fifteen (15) days after written notice thereof to Tenant
by Landlord;
(f) The levy upon execution or the attachment by legal process
of the leasehold interest of Tenant, or the filing or creation of a lien in
respect of such leasehold interest;
(g) Tenant or any guarantor of this Lease becomes insolvent or
bankrupt or admits in writing its inability to pay its debts as they mature,
makes an assignment for the benefit of creditors, or applies for or consents
to the appointment of a trustee or receiver for itself or for all or a part
of its property;
(h) Proceedings for the appointment of a trustee, custodian or
receiver of Tenant or any guarantor of this Lease or for all or a part of
Tenant's or such guarantor's property are filed against Tenant or such
guarantor and are not dismissed within thirty (30) days;
(i) Proceedings in bankruptcy, or other proceedings for relief
under any law for the relief of debtors, are instituted by or against tenant
or any guarantor of this Lease, and, if instituted against Tenant or such
guarantor, are allowed against either or are consented to by either or are
not dismissed within sixty (60) days thereof;
(j) Tenant shall repeatedly default in the timely payment of
Rent or any other charges required to be paid, or shall repeatedly default in
keeping, observing or performing any other covenant,
15
agreement, condition or provision of this Lease, whether or not Tenant shall
timely cure any such payment or other default. For the purposes of this
subsection, the occurrence of similar defaults three times during any twelve
month period shall constitute a repeated default.
Any notice periods provided for under this Section 21.01 shall run
concurrently with any statutory notice periods, and any notice given
hereunder may be given simultaneously with or incorporated into any such
statutory notice.
21.02 If a Default occurs, Landlord shall have the following rights and
remedies, which shall be distinct, separate and cumulative, and which may be
exercised by Landlord concurrently or consecutively in any combination and
with or without notice or demand, and which shall not operate to exclude or
deprive Landlord of any other right or remedy which Landlord may have in law
or equity:
(a) Landlord may terminate this Lease by giving to Tenant notice
of Landlord's intention to do so, in which event the Term shall end, and all
right, title and interest of Tenant hereunder shall expire, on the date
stated in such notice;
(b) Landlord may terminate the right of Tenant to possession of
the Premises without terminating this Lease by giving notice to Tenant that
Tenant's right of possession shall end on the date stated in such notice,
whereupon the right of Tenant to possession of the Premises or any part
thereof shall cease on the date stated in such notice but Tenant's
obligations under this Lease shall continue in full force and effect; and
(c) Landlord may enforce the provisions of this Lease and may
enforce and protect the rights of Landlord hereunder by a suit or suits in
equity or at law for the specific performance of any covenant or agreement
contained herein, or for the enforcement of any other appropriate legal or
equitable remedy, including injunctive relief and recovery of all moneys due
or to become due from Tenant under any of the provisions of this Lease.
21.03 If Landlord exercises either of the remedies provided for in
subparagraphs (a) and (b) of Section 21.02, Landlord may, without additional
notice and without court proceedings, re-enter and repossess the Premises and
remove all persons and property therefrom and Tenant hereby agrees to
surrender possession of the Premises and waives any claim arising by reason
thereof or by reason of issuance of any distress warrant or writ of
sequestration and agrees to hold Landlord harmless from any such claim.
Notwithstanding any rule or provision of law to the contrary, in the event
Landlord shall, for the purpose of re-entering or regaining possession of
the Premises, or for the purpose of excluding Tenant therefrom, as authorized
by law and/or the terms of this Lease, change the lock(s) to the Premises,
Landlord shall not be obligated to provide Tenant with the key(s) to the
Premises unless and until Tenant shall wholly and completely remedy any event
of default occurring on the part of Tenant hereunder. Further, the provisions
of this Lease pertaining to Tenant's waiver of notice and demand in the event
of the exercise of any right or remedy by Landlord hereunder shall supersede
the provisions of the Texas Property Code, as then amended, pertaining to the
affixation of notice on the door of the Premises advising of any lock-out
and/or disclosing the time at which, and/or person from whom, the key(s) to
the Premises may be obtained, and Tenant hereby waives the requirement of any
such notice. If Landlord elects to terminate this Lease, it may treat the
Default as an entire breach of this Lease and Tenant shall immediately become
liable to Landlord for damages equal to the total of (i) the cost of
recovering, reletting (including without limitation the cost of lease
commissions attributable to the unexpired portion of the Term of this Lease),
and remodeling the Premises, (ii) all unpaid Rent and other amounts earned or
due through such termination, (iii) the unamortized cost to Landlord,
computed and determined in accordance with generally accepted accounting
principles, of any tenant improvements provided by Landlord at its expense,
(iv) the value of any other concessions or inducements granted to Tenant
under or in connection with this Lease, plus (v) the total Rent and other
amounts to be paid by Tenant hereunder for the remainder of the full Term. If
Landlord elects to terminate Tenant's right to possession of the Premises
without terminating this Lease, Landlord may (but shall not be obligated to)
rent the Premises or any part thereof for the account of Tenant to any person
or persons for such rent and for such terms and conditions as Landlord deems
appropriate, and Tenant shall be liable to Landlord for the amount, if any, by
which the Rent for the unexpired balance of the Term exceeds the net amount,
if any, received by Landlord less the costs of repossession, reletting,
remodeling, and other expenses incurred by Landlord. Such sum or sums shall
be paid by Tenant in monthly installments on the first day of each month
of the Term. In no case shall Landlord be liable for failure to relet the
Premises or to collect the rent due under such reletting, and in no event
shall Tenant be entitled to any excess rents received by Landlord.
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21.04 All property removed from the Premises by Landlord pursuant to
any provisions of this Lease or of law shall be handled, removed or stored by
Landlord at the cost, expense and risk of Tenant, and Landlord shall in no
event be responsible for the value, preservation or safekeeping thereof.
Tenant shall pay Landlord upon demand for all expenses incurred by Landlord
in such removal and storage.
21.05 Tenant shall pay all costs, charges and expenses, including
court costs and reasonable attorneys' fees incurred by Landlord in enforcing
Tenant's obligations under this Lease, in the exercise by Landlord of any of
its remedies in the event of a default, in any litigation, negotiations or
transactions in which Tenant causes Landlord, without Landlord's fault, to
become involved or concerned, or in consideration of any request for
approval of or consent to any action by Tenant which is prohibited by this
Lease or which may be done only with Landlord's approval or consent, whether
or not such approval or consent is given.
21.06 All of Landlord's rights and remedies under this Lease shall be
cumulative with and in addition to any and all rights and remedies which
Landlord may have at law or equity. Any specific remedy provided for in any
provision of this Lease shall not preclude the concurrent or consecutive
exercise of a remedy provided for in any other provision hereof.
22.
INDEMNIFICATION; COUNTERCLAIMS
22.01 If any person not a party to this Lease shall institute an
action against Tenant or arising out of any act or omission of Tenant, in
which Landlord, any Mortgagee or any of their respective beneficiaries,
partners, officers, employees, agents or servants (collectively, "Indemnified
Persons") shall be made a party, Tenant shall indemnify and hold harmless all
such Indemnified Persons from all liabilities by reason thereof, including
reasonable attorneys' fees and other costs incurred by the Indemnified Persons
in such action.
22.02 Tenant hereby waives any right to plead any counterclaim, offset
or affirmative defense in any action or proceedings brought by Landlord
against Tenant pursuant to any forcible detainer statute or otherwise, for
the recovery of possession based upon the non-payment of Rent or any other
Default. This shall not, however, be construed as a waiver of Tenant's right
to assert any claim in a separate action brought by Tenant against Landlord.
Tenant agrees to pay all Rent without offset or reduction of any kind
whatsoever. Tenant waives trial by jury in any action brought by Landlord
under or in respect of this Lease.
23.
HOLDING OVER
If Tenant retains possession of the Premises or any part thereof after
the termination of the Term or any extension thereof, by lapse of time or
otherwise, Tenant, unless Landlord otherwise elects, shall become a tenant at
sufferance and shall pay Landlord monthly rent, at 150% of the rate of
Monthly Base Rent and Adjustments in effect for the month immediately
preceding said holding over, computed on a per month basis, for each month or
part thereof (without reduction for any such partial month) that Tenant thus
remains in possession. Alternatively, at the election of Landlord expressed in
a written notice to Tenant and not otherwise, such retention of possession
shall constitute a renewal of this Lease for one (1) year, requiring the
payment by Tenant of Monthly Base Rent and Adjustments then in effect, as
adjusted for said year as if said year were an extension of the Term. The
provisions of this Section 23 do not exclude Landlord's right of reentry or
any other right hereunder.
24.
SUBORDINATION
24.01 Landlord may have heretofore encumbered or may hereafter encumber
with a mortgage or trust deed the Building, or any interest therein, and may
have heretofore sold and leased back or may hereafter sell and lease back
the land on which the Building is located, and may have heretofore encumbered
or may hereafter encumber the leasehold estate under such lease with a
mortgage or trust deed. (Any such mortgage or trust deed is herein called a
"Mortgage" and the holder of any such mortgage or the beneficiary under any
such trust deed is herein called a "Mortgagee". Any such lease of the
underlying land is herein called a "Ground Lease", and the lessor under any
such lease is herein called a "Ground Lessor". Any Mortgage which is a first
lien against the Building, the land on which the Building is located, the
leasehold estate of the lessor under a Ground Lease (if the property is not
then subject to an unsubordinated mortgage) is herein called a "First Mortgage"
17
and the holder or beneficiary of or Ground Lessor under any First Mortgage is
herein called a "First Mortgagee"). This Lease is, or shall be, subject and
subordinate to any First Mortgage now or hereafter encumbering the Building.
This provision shall be self-operative, and no further instrument of
subordination shall be required to effectuate such subordination.
24.02 If requested by a First Mortgagee, Tenant will either (i)
subordinate its interest in this Lease to said First Mortgage, and to any and
all advances made thereunder and to the interest thereon, and to all
renewals, replacements, supplements, amendments, modifications and extensions
thereof, or (ii) make certain of Tenant's rights and interest in this Lease
superior thereto, and Tenant will promptly execute and deliver such agreement
or agreements as may be reasonably required by such Mortgagee or Ground
Lessor; provided, however, Tenant covenants it will not subordinate this
Lease to any Mortgage or Ground Lease other than a First Mortgage (including
a Ground Lease defined as a First Mortgage hereunder) without the prior
written consent of the First Mortgagee.
24.03 It is further agreed that (a) if any Mortgage shall be foreclosed,
or if any Ground Lease be terminated, (i) the liability of the Mortgagee or
purchaser at such foreclosure sale or the liability of a subsequent owner
designated as Landlord under this Lease shall exist only so long as such
Mortgagee, purchaser or owner is the owner of the Building or the land on
which the Building is located, and such liability shall not continue or
survive after further transfer of ownership; and (ii) upon request of the
Mortgagee, if the Mortgage shall be foreclosed, Tenant will attorn, as Tenant
under this Lease, to the purchaser at any foreclosure sale under any Mortgage
or upon request of the Ground Lessor, if any Ground Lease shall be
terminated, Tenant will attorn as Tenant under this Lease to the Ground
Lessor, and Tenant will execute such instruments as may be necessary or
appropriate to evidence such attornment; (b) this Lease may not be modified
or amended so as to reduce the Rent or shorten the Term provided hereunder,
or so as to adversely affect in any other respect to any material extent the
rights of the Landlord or its successor, nor shall this lease be cancelled or
surrendered, without the prior written consent, in each instance, of the
First Mortgagee; and (c) Tenant waives the provisions of any statute or rule
of law, now or hereafter in effect, that may give or purport to give Tenant
any right to terminate or otherwise adversely affect Landlord's interest in
this Lease or reduce or limit the obligations of Tenant hereunder in the
event of the prosecution or completion of any such foreclosure proceeding. No
Mortgagee or any purchaser at a foreclosure sale shall be liable for any act
or omission of the Landlord which occurred prior to such sale or conveyance,
nor shall Tenant be entitled to any offset against or deduction from Rent due
after such date by reason of any act or omission of the Landlord prior to
such date. Further, Tenant agrees that no Mortgagee shall be bound by the
prepayment of Rent made in excess of ninety (90) days before the date on
which such payment is due.
24.04 Should any prospective First Mortgagee require a modification or
modifications of this Lease, which modification or modifications will not
cause an increased cost or expense to Tenant or in any other way materially
and adversely change the rights and obligations of Tenant hereunder, in the
reasonable judgment of Tenant, then and in such event, Tenant agrees that
this Lease may be so modified and agrees to execute whatever documents are
required therefor and deliver the same to Landlord within ten (10) days
following the request therefor. Should any prospective Mortgagee or Ground
Lessor require execution of a short form of lease for recording (containing,
among other customary provisions, the names of the parties, a description of
the Premises and the Term of this Lease), Tenant agrees to execute such short
form of lease and deliver the same to Landlord within ten (10) days following
the request therefor.
24.05 If Tenant fails within ten (10) days after written demand
therefor to execute and deliver any instruments as may be necessary or proper
to effectuate any of the covenants of Tenant set forth above in this Section,
Tenant hereby makes, constitutes and irrevocably appoints Landlord as its
attorney-in-fact (such power of attorney being coupled with an interest) to
execute and deliver any such instruments for and in the name of Tenant.
25.
ESTOPPEL CERTIFICATE
Tenant agrees that from time to time, upon not less than seven (7)
days' prior written request by Landlord, Tenant will, and Tenant will cause
any subtenant, licensee, concessionaire or other occupant of the Premises to,
promptly complete, execute and deliver to Landlord or any party or parties
designated by Landlord a statement in writing certifying: (i) that this Lease
is unmodified and in full force and effect (or if there have been
modifications that the same are in full force and effect as modified and
identifying the modifications); (ii) the dates to which the Rent and other
charges have been paid; (iii) that the Premises have been unconditionally
accepted by the Tenant (or if not, stating with particularity the reasons why
the Premises have
18
not been unconditionally accepted); (iv) the amount of any Security Deposit
held hereunder; (v) that, so far as the party making the certificate knows,
Landlord is not in default under any provisions of this Lease, if such is the
case, and if not, identifying all defaults with particularity; and (vi) any
other matter reasonably requested by Landlord. Any purchaser or Mortgagee of
any interest in the Building shall be entitled to rely on said statement.
Failure to give such a statement within seven (7) days after said written
request shall be conclusive evidence, upon which Landlord and any such
purchaser or Mortgagee shall be entitled to rely, that this Lease is in full
force and effect and Landlord is not in default and Tenant shall be estopped
from asserting against Landlord or any such purchaser or Mortgagee any
defaults of Landlord existing at that time but Tenant shall not thereby be
relieved of the affirmative obligation to give such statement. Moreover, if
Tenant fails to deliver or cause to be delivered such statement within said
seven (7) day period, Landlord shall be entitled to collect from Tenant upon
demand, as liquidated damages occasioned by such delay and not as a penalty
(the actual damages resulting from such delay being impossible to ascertain),
a sum equal to one-fifteenth of the Monthly Base Rent for each day, up to
fifteen (15) days, after the expiration of said seven (7) day period that
Tenant fails to deliver such statement. If such failure persists after such
fifteen (15) day period, Landlord shall be entitled to pursue any and all
remedies it may have with respect to such Default, including termination of
this Lease or Tenant's right to possession and collection of damages,
including consequential damages, arising by reason of such Default.
26.
RELOCATION OF TENANT
Landlord may, at any time, relocate the Tenant to another area of the
Building (herein referred to as "new premises") provided that the new
premises shall be similar to the Premises in rentable square footage and use
for Tenant's purposes. If Tenant is already occupying the Premises at the
time Landlord exercises the rights granted by this Section 26, Landlord
agrees to pay all reasonable moving expenses of the Tenant incident to such
substitution and for improving the new premises so that they are
substantially similar to the Premises. Landlord shall give Tenant at least
thirty (30) days' notice before making such change. Landlord and Tenant shall
cooperate with each other in all reasonable ways to facilitate the move.
27.
NOTICES AND DEMANDS
27.01 All notices, demands, approvals, consents, requests for approval
or consent or other writings in this Lease provided to be given, made or sent
by either party hereto to the other ("Notice") shall be in writing and shall
be deemed to have been fully given, made or sent when made by personal
service or two (2) business days after deposit in the United States mail,
certified or registered and postage prepaid and properly addressed as follows:
To Landlord: Landlord's Management Agent at the address set forth in
Section 1.13 with a copy to Lincoln Property Company, 0000 Xxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xx. Xxxx Xxxxxxx; and a copy
to Xxxxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Xxxxxxx Xxxxx, Esq.
To Tenant: (i) If any Notice is to be given Tenant prior to
occupancy, to the address set forth in Section
1.02.
(ii) If any Notice is to be given Tenant after
occupancy, to the Premises; provided, however,
if the Premises shall have been vacated, Notice
may be posted on the door to the Premises.
The address to which any Notice should be given, made or sent to either party
may be changed by written notice given by such party as above provided.
27.02 Tenant agrees to give any First Mortgagee, by registered or
certified mail, a copy of any notice or claim of default served upon the
Landlord by Tenant, provided that prior to such notice Tenant has been
notified in writing (by way of service on Tenant of a copy of an assignment
of Landlord's interest in leases, or otherwise) of the address of such First
Mortgagee. Tenant further agrees that if Landlord shall have failed to cure
such default within twenty (20) days after such notice to Landlord (or if
such default cannot be cured or corrected within that time, then such
additional time as may be necessary if Landlord has commenced within such
twenty (20) days and is diligently pursuing the remedies or steps necessary
to cure or correct such
19
default), then the First Mortgagee shall have an additional thirty (30) days
within which to cure or correct such default (or if such default cannot be
cured or corrected within that time, then such additional time as may be
necessary if such First Mortgagee has commenced within such thirty (30) days
and is diligently pursuing the remedies or steps necessary to cure or correct
such default, including the time necessary to obtain possession if possession
is necessary to cure or correct such default) before Tenant may exercise any
right or remedy which it may have on account of any such default by Landlord.
27.03 Any notice, demand, request or consent to be made by or required
of Landlord, may be made and given by Landlord's Management Agent with the
same force and effect as if made and given by Landlord.
28.
CONSTRUCTION OF LEASE
28.01 The language in all parts of this Lease shall in all cases be
construed as a whole according to its fair meaning and neither strictly for
nor against either Landlord or Tenant. Section and Subsection headings in
this Lease are for convenience only and are not to be construed as part of
this Lease or in any way defining, limiting, amplifying, construing, or
describing the provisions hereof. Time is of the essence of this Lease and
every term, covenant and condition hereof, the words "Landlord" and "Tenant",
as herein used, shall include the plural as well as the singular. The neuter
gender includes the masculine and feminine. In the event there is more than
one person or entity which executes this Lease as Tenant, the obligations to
be performed and liability of all such persons and entities shall be joint
and several. All of the covenants of Tenant hereunder shall be deemed and
construed to be "conditions" as well as "covenants" as though the words
specifically expressing or importing conditions were used in each separate
instance. Landlord and Tenant agree that in the event any term, covenant or
condition herein contained (other than with respect to the payment of Rent)
is held to be invalid or void by any court of competent jurisdiction, the
invalidity of any such term, covenant or condition shall in no way affect any
other term, covenant or condition herein contained.
28.02 This Lease contains and embodies the entire agreement of the
parties hereto, and no representation, inducements or agreements, oral or
otherwise, not contained in this Lease shall be of any force or effect. This
Lease may not be modified in whole or in part in any manner other than by an
instrument in writing duly signed by both parties hereto.
29.
REAL ESTATE BROKERS
Tenant represents and warrants unto Landlord that Tenant has directly
dealt with and only with Landlord's Management Agent and the Leasing
Broker(s), if any, identified in Section 1.12 of this Lease as broker in
connection with this Lease, and agrees to indemnify and hold harmless
Landlord from and against any and all claims or demands, damages, liabilities
and expenses of any type or nature whatsoever arising by reason of the
incorrectness or breach of the aforesaid representation or warranty. Landlord
shall pay, and agrees to indemnify and hold harmless Tenant from and against
any claim by, Landlord's Management Agent and the Leasing Broker(s) for its
commission arising out of the execution and delivery of this Lease.
30.
ENVIRONMENTAL COMPLIANCE
During the Term of this Lease, Tenant shall fully comply with any laws
or rules and regulations promulgated thereunder relating to the Premises and
Tenant's use thereof, including, but not limited to, Occupational Safety and
Health Act, 29 U.S.C. Sections 651, ET SEQ.; the Toxic Substances Control
Act, 15 U.S.C. Sections 2601, ET SEQ.; the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, ET SEQ.; the Clean Air Act, 42 U.S.C. Sections
7901, ET SEQ.; the Clean Water Act, 33 U.S.C. Sections 1251, ET SEQ.; the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
and the 1986 Superfund Amendments and Reauthorization Act, 42 U.S.C. Sections
9601, ET SEQ.; the National Environmental Policy Act, 42 U.S.C. Sections
4231, ET SEQ.; the Xxxxxx Xxx, 00 U.S.C. Sections 407, ET SEQ.; the Safe
Drinking Water Act, 42 U.S.C. Sections 300(f), ET SEQ.; the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. Sections 11001, ET SEQ.;
or any other federal, state or local law, ordinance or regulation promulgated
under any of those statutes and any amendments thereto, as well as applicable
Department of Transportation regulations. Tenant shall notify Landlord
immediately if Tenant receives any notice of non-compliance with
20
any laws or rules and regulations promulgated thereunder, including, but not
limited to, those enumerated above.
Tenant shall not cause or permit its business in the Premises to be used
to generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce or process hazardous substances, or other dangerous or
toxic substances, or solid waste, except in compliance with all applicable
federal, state and local laws or regulations. Tenant shall notify Landlord
immediately if Tenant learns of any non-compliance or of any facts (such as
the existence of any release or the threat of release of hazardous substances
at, on, from or beneath the surface of the Premises) which could give rise to
a claim of non-compliance with such laws or rules and regulations promulgated
thereunder.
During the Term of this Lease, Tenant shall obtain, shall fully comply
with, and shall maintain in full force and effect, all governmental licenses,
permits, registrations and approvals (federal, state, local, county and
foreign) necessary to conduct its business in the Premises including, but not
limited to, those required by the statutes enumerated in the first paragraph
of this Section 30. During the Term of this Lease, Tenant shall keep a copy
of all such permits at the Premises and shall make the same available at all
times for Landlord's inspection. Tenant warrants and represents that if
during the Term of this Lease, any violations are recorded or any notices
are received with respect to any of such licenses, permits, registrations and
approvals or if a proceeding is commenced or threaten to revoke or limit any
of them, Tenant shall notify Landlord immediately.
In addition to all other indemnities under this Lease, Tenant hereby
assumes for itself and for its successors and assigns any and all
environmental, health and safety liabilities or obligations relating to the
Tenant Work in the Premises and or Tenant's use and occupancy of Premises,
including, but not limited to, any liabilities or obligations in breach of
the obligations imposed under this Section on Tenant and its successors and
assigns. Tenant, for itself and its successors and assigns, shall indemnify,
defend and hold Landlord, its successors, assigns, owners and affiliates
harmless from and against any claims, demands, liabilities and damages
(including, but not limited to, attorneys' fees and court costs) arising out
of or in connection with any environmental contamination or pollution of the
Premises, or the existence on, or removal from, the Premises of any hazardous
substance provided that any such contaminant, pollutant or hazardous
substance was introduced into the Premises by Tenant or its agents,
employees, invitees, contractors or any other party acting on behalf of Tenant
or for whom Tenant is responsible. The obligations of this Section shall
survive the expiration or termination of this Lease.
31.
RENEWAL OPTION
Landlord hereby grants to Tenant the option to extend the Term on the
same terms, conditions and provisions as contained in this Lease, except as
otherwise provided herein, for one period of three (3) years (such period
being referred to as the "Option Period").
(a) Tenant's option to extend shall be exercisable by written
notice from Tenant to Landlord given no later than nine (9) months prior to the
expiration of the initial Term, time being of the essence. If the option is
not so exercised, such option shall thereupon expire. Landlord shall notify
Tenant, within thirty (30) days after receiving Tenant's notice, of the
Market Rental Rate for the Option Period. If Tenant disagrees with such
determination and Landlord and Tenant are thereafter unable, despite their good
faith efforts, to agree upon the Market Rental Rate, then Tenant shall have
the option, to be exercised by written notice to Landlord given within thirty
(30) days of receipt of Landlord's notice (of the Market Rental Rate), to
withdraw its exercise of the renewal option, in which event this Lease shall
terminate on the Expiration Date.
(b) Monthly Base Rent per square foot of Rentable Area of Premises
payable during the Option Period (including escalations thereof) shall be
equal to the Market Rental Rate (as hereinafter defined).
(c) Tenant may only exercise its option to extend, and an exercise
thereof shall only be effective, if at the time of Tenant's exercise and on
the Option Period commencement date, this Lease is in full force and effect
and Tenant is not in default under this Lease and (inasmuch as such option is
intended only for the benefit of the original named Tenant) the entire
Premises are occupied by the original named Tenant. In addition to the
condition set forth in the first sentence of this subparagraph (c), if Tenant
is in default under this lease within thirty (30) days prior to the Option
Period commencement date, and has not cured or is not in the process of
diligently curing such default prior to said commencement date, then, at
Landlord's option,
21
Tenant's right to exercise its option may be terminated and rendered null and
void by notice thereof from Landlord to Tenant. No sublessee or assignee shall
be entitled to exercise such option.
(d) Upon the valid exercise by Tenant of its option to extend, at
the request of either party hereto, Landlord and Tenant shall enter into a
written supplement to the Lease confirming the terms, conditions and
provisions applicable to the Option Period as determined in accordance with
the provisions of this Section, with such revisions to the Monthly Base Rent
provisions of this Lease as may be necessary to conform those provisions to
the rental rate applicable to the Option Period. No new options to extend
shall be deemed to be created by a valid exercise of the extension option
and no other provisions inapplicable to the Option Period such as, but not
limited to, an obligation to construct or pay for construction or
improvements or to grant rent abatements, shall be construed to govern the
Option Period.
For purposes hereof, the "Market Rental Rate" shall be the annual rental
rate, as determined in good faith by Landlord, for office space in the
Building comparable in area, location and degree of improvements to the
space to be leased (to the extent that quoted rental rates in the Building
vary with respect to area, location or degree of improvements). The Market
Rental Rate shall be determined taking into consideration comparable fact
situations in the Building occurring during the preceding nine (9) month
period or any more recent relevant period (including, without limitation, the
relevant terms of any other signed leases made within said period), but if
there is not or has not been a comparable fact situation in the Building
during such period, then the annual market rental rate and terms in
comparable office buildings in the market area of the Building shall be used.
The Market Rental Rate may include, among other things, the then prevailing
rental-related terms or conditions or components of rent, a fixed annual rent
(such as Monthly Base Rent), additional rent based on a share of real estate
taxes or other expenses, periodic increases in rent based upon an inflation
index or similar index, any sums based upon the value of any leasehold
improvements performed by Landlord and rental abatements and other
concessions.
32.
MISCELLANEOUS
32.01 BENEFIT. Subject to the provisions of Sections 19 and 20 hereof,
all terms, covenants and conditions on this Lease shall be binding upon and
inure to the benefit of and shall apply to the respective heirs, executors,
administrators, successors, assigns and legal representatives of Landlord
and Tenant.
32.02 EXECUTION AND DELIVERY. The execution of this Lease by Tenant and
delivery of the same to Landlord or Landlord's Management Agent do not
constitute a reservation of or option to lease the Premises or an agreement
by Landlord to enter into a lease, and this Lease shall become effective only
if and when Landlord executes and delivers a counterpart hereof to Tenant;
provided, however, the execution and delivery by Tenant of this Lease to
Landlord or Landlord's Management Agent shall constitute an irrevocable offer
by Tenant to lease the Premises on the terms and conditions herein contained,
which offer may not be withdrawn or revoked for thirty (30) days after such
execution and delivery. If Tenant is a corporation, it shall deliver to
Landlord concurrently with the delivery to Landlord of an executed Lease,
certified resolutions of Tenant's directors authorizing execution and
delivery of this Lease and the performance by Tenant of its obligations
hereunder. If Tenant is a partnership, it shall deliver to Landlord
concurrently with the delivery to Landlord of an executed Lease, a certified
copy of its partnership agreement or other satisfactory evidence of
execution and performance authority. Tenant shall not record this Lease or
any memorandum or other evidence hereof.
32.03 DEFAULT UNDER OTHER LEASE. If the term of any lease (other than
this Lease) made by Tenant for any demised premises in the Building shall be
terminated or terminable after the making of this Lease, because of any
default by Tenant under such other lease, such fact shall empower Landlord,
at Landlord's sole option, to declare this Lease to be in default by written
notice to Tenant.
32.04 APPLICABLE LAW. This Lease shall be governed by and construed in
accordance with the laws of the State of Texas.
32.05 LATE CHARGES. At the option of Landlord, Landlord may impose a
late payment fee equal to five percent (5%) of the amount due if any payment of
Rent is paid more than five (5) days after its due date. In addition, any
amount due hereunder shall bear interest after default in the payment thereof
at the annual rate of five percent (5%) above the prime rate of interest as
announced by Chase Bank N.A. ("Chase") from time to time, or if the use of
the prime rate is discontinued by Chase, such other rate as may thereafter be
announced from time to time by Chase or any other major bank in Houston,
Texas selected by Landlord as a measure of the cost to its borrowers of
short-term commercial loans, until said past due amount shall be paid by Tenant
22
to Landlord or, in the absence of any such rate, 18% per year, provided that
in no event shall such interest rate exceed the maximum nonusurious rate of
interest at which Tenant may legally contract in Texas.
32.06 NON-WAIVER OF DEFAULTS. No waiver of any provision of this Lease
shall be implied by any failure of Landlord to enforce any remedy on account
of the violation of such provision, even if such violation be continued or
repeated subsequently, and no express waiver shall affect any provision other
than the one specified in such waiver and in that event only for the time and
in the manner specifically stated. No receipt of monies by Landlord from
Tenant after the termination of this Lease will in any way alter the length
of the Term or Tenant's right of possession hereunder or, after the giving of
any notice, shall reinstate, continue or extend the Term or affect any notice
given Tenant prior to the receipt of such monies, it being agreed that after
the service of notice or the commencement of a suit or after final judgment
for possession of the Premises, Landlord may receive and collect any Rent
due, and the payment of Rent shall not waive or affect said notice, suit or
judgment, nor shall any such payment be deemed to be other than on account of
the amount due, nor shall the acceptance of Rent be deemed a waiver of any
breach by Tenant of any term, covenant or condition of this Lease. No
endorsement or statement on any check or any letter accompanying any check or
payment of Rent shall be deemed an accord and satisfaction. Landlord may
accept any such check or payment without prejudice to Landlord's right to
recover the balance due of any installment or payment of Rent or pursue any
other remedies available to Landlord with respect to any existing Defaults.
None of the terms, covenants or conditions of this Lease can be waived by
either Landlord or Tenant except by appropriate written instrument.
32.07 FORCE MAJEURE. Landlord shall not be deemed in default with
respect to the failure to perform any of the terms, covenants and conditions
of this Lease on Landlord's part to be performed, if such failure is due in
whole or in part to any strike, lockout, labor dispute (whether legal or
illegal), civil disorder, inability to procure materials, failure of power,
restrictive governmental laws and regulations, riots, insurrections, war,
fuel shortages, accidents, casualties, Acts of God, acts caused directly or
indirectly by Tenant (or Tenant's agents, employees, guests or invitees),
acts of other tenants or occupants of the Building or any other cause beyond
the reasonable control of Landlord. In such event, the time for performance
by Landlord shall be extended by an amount of time equal to the period of the
delay so caused. No interruption of service resulting from any of these
causes described in the first sentence of this Section 31.07 shall relieve
Tenant of any of its obligations under this Lease or render Landlord liable
for damages. Landlord shall not be liable to Tenant for any expense, injury,
loss or damage resulting from work done in or upon, or the use of, any
adjacent or nearby building, land, street, alley or underground vault or
passageway.
32.08 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES. If Tenant fails
timely to perform any of its duties under this Lease, Landlord shall have the
right (but not the obligation), after the expiration of any grace period
specifically provided by this Lease, to perform such duty on behalf and at the
expense of Tenant without further notice to Tenant, and all sums expended or
expenses incurred by Landlord in performing such duty shall be deemed to be
Rent under this Lease and shall be due and payable to Landlord upon demand by
Landlord.
32.09 PARKING. Landlord agrees to provide, and Tenant agrees to rent,
through the Term of this Lease, three (3) reserved spaces and two (2)
unreserved spaces for the parking of automobiles in the parking garage
located at the Building. Tenant shall rent all such spaces unless and until
Landlord releases Tenant from such spaces after Tenant gives at least thirty
(30) days' prior written notice to Landlord that Tenant desires to take fewer
spaces, but Landlord shall be under no obligation to later make available to
Tenant any spaces relinquished by Tenant. As rental for parking spaces
provided to Tenant hereunder, Tenant shall pay to Landlord or the operator of
the garage, as may be designated from time to time by Landlord, monthly in
advance, rental on each such parking space at the rate of $40.00 per month
per reserved space and $20.00 per month per unreserved space, payable at the
same times, in the same manner, and in addition to, the Base Rent provided in
this Lease; provided, however, that all such parking rental shall be abated
for the first two (2) Lease Years. Tenant shall comply with all traffic,
security, safety and other rules and regulations promulgated from time to
time by Landlord and shall use its unreserved spaces in common with all other
tenants of the Building. Tenant shall indemnify and hold harmless Landlord
from and against all claims, losses, liabilities, damages, costs and expenses
(including, but not limited to, attorneys' fees and court costs) arising or
alleged to arise out of Tenant's use of any such parking spaces. In the event
any of the above parking spaces are or become unavailable at any time or from
time to time throughout the Term, whether due to casualty or any other cause,
this Lease shall continue in full force and effect, and Tenant's sole remedy
shall be an abatement of rentals for those parking spaces rendered
unavailable, which abatement shall continue until such time as said parking
spaces, or substitutes therefor, again become available; it being expressly
agreed and understood that Landlord shall have no duty to provide substitute
parking spaces for those spaces rendered unavailable.
23
32.10 NOTICE OF INDEMNIFICATION. THIS LEASE CONTAINS INDEMNIFICATION
PROVISIONS WHICH EACH SHALL EXPRESSLY SURVIVE THE EXPIRATION OR TERMINATION
OF THIS LEASE.
32.11 WAIVER. TENANT HEREBY WAIVES THE PROVISIONS OF SECTION
93.002(g)(1) OF THE TEXAS PROPERTY CODE.
32.12 EXHIBITS. The Exhibits attached hereto are hereby incorporated
in this Lease by reference and all terms and conditions of this Lease shall
apply to the provisions set forth in such Exhibits.
33.
LIMITATION OF LIABILITY
In consideration of the benefits accruing hereunder, Tenant and all
successors and assigns of Tenant covenants and agree that, anything contained
herein to the contrary notwithstanding, the obligations under this Lease do
not constitute personal obligations of the individual partners, directors,
officers or shareholders of Landlord, or the partners, directors, officers or
shareholders of the partners of Landlord. Any claim based on or in respect to
any liability of Landlord under this Lease shall be enforced only against the
Building and not against any other assets, properties or funds of: (1)
Landlord or any director, officer, general partner, limited partner, employee
or agent of Landlord or its general partners (or any legal representative,
heir, estate, successor or assign thereof); (2) any predecessor or successor
partnership or corporation (or other entity) of Landlord or its general
partners, either directly or through Landlord or its predecessor or successor
partnership or corporation (or other entity) of Landlord or its general
partners; and (3) any other person or entity. Tenant further agrees that each
of the foregoing provisions shall be applicable to any covenant or agreement
either expressly contained in this Lease or imposed by statute or at common
law. Tenant's covenants and agreements contained in this Section 33 are
enforceable both by Landlord and also by any partner of Landlord.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
LANDLORD
W9/LWS II REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership
BY: W9/LWS II GEN-PAR, INC., a Delaware
corporation, its General Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: XXXX X. XXXXXXX
--------------------------------
Title: VICE PRESIDENT
-------------------------------
Date:
------------------------------------
TENANT:
0-XXXXXXXX.XXX, INC., a Texas Corporation
------------------
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: XXXXX XXXXXX
-------------------------------------
Title: CEO
------------------------------------
Date: 6-22-99
------------------------------------
24
EXHIBIT A
FLOOR PLAN
[GRAPHIC]
- cut pile carpet Brand: Xxx Xxxxx
Style: 798 Client 36
Color: 108 Brainstorm
- Wall base Brand: Johnsonite
Vinyl 1/8"
Color: 63 Burnt Umber
- Paint - White sapling 149 648
SOYY 64/048
Brand: ICI
A-1
EXHIBIT B
BUILDING RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be used for the disposal of trash, be obstructed by tenants,
or be used by tenants for any purpose other than entrance to and exit from
the leased premises and for going from one part of the Building to another
part of the building.
2. Plumbing fixtures shall be used only for the purposes for which they are
designed, and no sweepings, rubbish, rags or other unsuitable materials
shall be disposed into them. Damage resulting to any such fixtures from
misuse by a tenant shall be the liability of said tenant.
3. Signs, advertisements, or notices visible in or from public corridors or
from outside the Building shall be subject to Landlord's prior written
approval.
4. Movement in or out of the building of furniture, office equipment, or any
other bulky or heavy materials shall be restricted to such hours as
Landlord designates. Landlord will determine the method and routing of said
items so as to ensure the safety of all persons and property concerned.
Advance written notice of intent to move such items must be made to the
Building management office.
5. All deliveries of furniture, office equipment or bulk freight shall be
coordinated in advance with Landlord, shall be performed subject to
Landlord's supervision and direction by xxx only of an elevator designated
by Landlord.
6. Building management shall have the authority to prescribed the weight and
manner that heavy furniture and equipment are positioned.
7. Corridor doors, when not in use, shall be kept closed.
8. Tenant space that is visible from public areas must be kept neat and
clean.
9. The disposal of trash or storage of materials in the hallways, elevator
lobbies, stairways and other common areas of the Building is prohibited.
10. No animals shall be brought into or kept in, on or about the Building.
11. Tenant shall not tamper with or attempt to adjust temperature control
thermostats in the leased premises. Landlord shall adjust thermostats as
required to maintain the Building standard temperature.
12. Tenant will comply with any and all security procedures established by
Landlord from time to time.
13. Tenants shall lock all office doors leading to corridors and turn out all
lights at the close of their working day.
14. All requests for overtime air conditioning or heating must be submitted
in writing to the Building management office by 2:00 p.m. on the day
desired for weekday request, by 2:00 p.m. Friday for weekend requests and by
2:00 p.m. on the preceding business day for holiday requests.
15. No flammable or explosive fluids or materials shall be kept or used
within the Building except in areas approved by Landlord, and Tenant shall
comply with all applicable building and fire codes relating thereto.
16. All building elevators, stairwells, restrooms and lobby areas are
considered "public places", therefore, there is no smoking in these
designated areas.
17. No tenant shall be allowed for any time period to park in visitor
Parking. Should this occur, Tenant's vehicle will be towed at the owners
expenses with no formal notice given.
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 reasonable
judgment shall, from time to time, be required for the safety, protection,
care and cleanliness of the Building, and the operation thereof, the
preservation of good order
B-1
therein and the protection and comfort of the tenants and their agents,
employees and invitees. Such rules and regulations, when made and written
notice thereof is given to a tenant, shall be binding upon it in like manner
as if originally herein prescribed.
B-2
