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EXHIBIT 10.1
LEASE AGREEMENT
TEXAS TOWNHOUSE & CONDOMINIUM
OWNERS ASSOCIATION, INC.
AS LANDLORD
and
XXXX.XXX
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AS TENANT
DATED: 11-3-99
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BASIC LEASE INFORMATION
Tenant: XXXX.XXX
Notification Address: 00000 Xxxxxxxxxxx Xxxxx, Xxxxx X
Xxxxxxx, Xxxxx 00000
Landlord: Texas Townhouse & Condominium Owners
Association, Inc.
Notification Address: X.X. Xxx 000000
Xxxxxxx, Xxxxx 00000-0000
Project: University Park Business Center
00000 Xxxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Premises: Suite B containing 1,079 square feet in the
Project, as shown on Exhibit "A", attached
to this Lease.
Term: The period beginning on December 1, 1999,
the Commencement Date, and ending at
6:00 p.m. on the last day of the
November 30, 2000 full calendar month after
the Commencement Date. Thus, unless the
Commencement Date falls on the first day
of a calendar month, the Term will also
include the initial partial calendar month
immediately following the Commencement
Date.
Base Rent: .70 p.s.f. N.N.N. % of Common Area
Maintenance. Tenant pay own electricity.
Security Deposit: First Month plus one month security.
Base Year: Calendar year N.A.
Tax Costs Base Rate: The rate of Tax Costs per square foot in
the Project for the Base Year.
Insurance Costs Base Rate: The rate of Insurance Costs per square foot
in the Project for the Base Year.
Tenant Improvements: Any leasehold improvements installed in the
Premises as of the date of this Lease,
together with (and as altered by) the Work
Letter Improvements, if any.
Tenant Finish Allowance: N.A.
Broker: N.A.
Guarantor: XXXX.XXX
Permitted Use: OFFICE
Utilities: HLEP Electric - Approx .10 p.s.f.
average
C.A.M. % of Square Footage in project: Billed once
yearly approximately .15 cents p.s.f.
The Basic Lease Information is part of the Lease. Each term in the left
column is used throughout the Lease as a defined term with the meaning
stated in the Basic Lease Information.
24,320 S.F. in project
Common Area Maintenance = Refuse, lawn, water, ins, taxes, etc.
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COMMERCIAL LEASE AGREEMENT
ARTICLE I
PREMISES
1.01 Demise of Premises. In consideration of the mutual covenants and
agreements set forth in this Lease, and other good and valuable consideration,
and subject to all the terms and provisions of this Lease Agreement (hereinafter
referred to as the "Lease"). Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the Premises which is situated on the land described in
Exhibit "B" attached hereto and made a part hereof for all purposes
("Property").
1.02 Condition of Premises. Tenant hereby accepts the Premises in their
AS IS, WHERE IS, WITH ALL FAULTS condition existing as of the date or the
possession hereunder, (save only for Work Letter Agreement; if any) subject to
all applicable zoning, municipal, county and state laws, ordinances and
regulations governing and regulating the use of the Premises. Tenant shall, at
Landlord's request, execute an acceptance of Premises form prior to taking
possession thereof. TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR LANDLORD'S
AGENT(S) HAS MADE ANY REPRESENTATION OR WARRANTY AS TO THE SUITABILITY OF THE
PREMISES FOR THE CONDUCT OF TENANT'S BUSINESS AND TENANT WAIVES ANY IMPLIED
WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL
PURPOSES. TENANT EXPRESSLY ACKNOWLEDGES THAT TENANTS OBLIGATION TO PAY RENT
HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES. THE TAKING OF
POSSESSION OF THE PREMISES SHALL BE CONCLUSIVE EVIDENCE THAT THE TENANT ACCEPTS
THE PREMISES AND THAT THE PREMISES WERE IN GOOD CONDITION AT THE TIME POSSESSION
WAS TAKEN. IN NO EVENT SHALL LANDLORD BE LIABLE FOR ANY DEFECTS IN THE PREMISES
OR FOR ANY LIMITATION ON ITS USE.
1.03 Use of Premises. Tenant shall have the right to use the Premises
as specified in the Basic Lease Information.
1.04 Compliance. Tenant, at its own expense, will comply with all
federal, state, municipal and other laws, ordinances, rules and regulations
applicable to the Leased Premises and the business conducted therein by Tenant,
including, without limitation, the Americans With Disabilities Act and related
state statutes, and will indemnify and hold Landlord harmless from any costs or
expenses in connection therewith; will install, remove and alter such fixtures,
equipment and facilities in, and make such alterations to, the Leased Premises
as may be necessary so to comply; and will furnish and maintain an adequate
number of fire extinguishers in good operating condition as may be required by
Applicable Law. Tenant will not engage in any activity or permit any nature of
construction by Tenant or any other condition at the Leased Premises which would
cause Tenant's fire and extended coverage insurance to be canceled, or the rate
therefor increased (unless Tenant pays any such increase); will comply with such
safety recommendations and loss prevention and loss reduction recommendations as
Tenant's insurance carriers may, from time to time, request; will not make any
unlawful use thereof; and will not commit any act which is a nuisance or
annoyance to Landlord.
1.05 Rules and Regulations. Tenant agrees to comply with all building
rules and regulations or Landlord as attached hereto as Exhibit "C" and
incorporated herein by reference and as may be promulgated by Landlord and any
protective covenants pertaining to the Property as attached hereto as Exhibit
"D" and incorporated herein by reference.
1.06 Signage. Tenant shall not, without Landlord's prior written
consent erect or install any signs upon the Premises. Any signs which Tenant
may be permitted to erect or install shall comply with Landlord's established
sign criteria. Tenant shall remove all signs at the termination of this Lease at
Tenant's sole cost, risk and expense and shall in a workmanlike manner properly
repair any damage caused by the removal of Tenant's signs.
ARTICLE II
TERM OF LEASE
2.01 Initial Term and Commencement. The initial term ("Term") or this
Lease shall commence on the Commencement Date, and shall, unless sooner
terminated as provided herein, expire as specified in the Basic Lease
Information.
2.02 Delay in Commencement. In the event that the Premises should not
be ready for occupancy by the Commencement Date for any reason, Landlord shall
not be liable or responsible for any claims, damages or liabilities in
connection therewith or by reason thereof and, unless such delay is due to the
act or omission of Tenant, this Lease shall be effective only from the time that
the Premises became ready for occupancy by Tenant. In such event, Landlord shall
notify Tenant or the date that the Premises will be ready for occupancy and such
date shall be the Commencement Date or this Lease. If the Premises are not ready
for occupancy by the Commencement Date due in whole or in part to the act or
omission of
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Tenant, then the Commencement Date of this Lease shall not be delayed pursuant
to this Paragraph 2.02.
2.03 Early Possession. In the event that Landlord shall permit Tenant
to occupy the Premises prior to the Commencement Date of the term, such
occupancy shall be subject to all provisions of this Lease, including, but not
limited to, payment of Rent. Said early possession shall not advance the
Termination Date of this Lease. Subject to prior written approval by Landlord,
Tenant may be permitted to enter the Premises for the sole purpose or making
approved improvements in the Premises without payment, of rent during the
construction period prior to the Commencement Date.
2.04 Delivery or Possession. Tenant shall be deemed to have been
delivered possession of the Premises upon the earliest to occur of any of the
following: (a) Landlord delivers or tenders delivery for possession of the
Premises to Tenant; (b) upon a Certificate from the Landlord's architect or
contractor, or from Landlord or from the City of Houston Public Works Department
inspectors (or the applicable government department) that the Premises are
ready for occupancy; or (c) partial occupancy or use of the Premises by Tenant;
or (d) Certificate of Occupancy is granted by proper governmental authority.
ARTICLE III
RENT
3.01 Payment of Rent. Tenant shall pay to Landlord the Base Rent as
specified in the Basic Lease Information in advance and without demand on the
first day of each calendar month throughout the Term. Tenant shall pay the first
installment of Base Rent upon execution of this Lease. Monthly installments for
any partial calendar month of the Term shall be pro rated.
3.02 Security Deposit. Concurrently with Tenant's execution of this
Lease. Tenant has deposited the Security Deposit as specified in the Basic
Lease Information to secure the faithful performance by Tenant of all the
covenants and conditions contained in this Lease.
3.03 Application of Security Deposit. The Security Deposit shall be
applied as follows:
(a) In the event of the occurrence of an Event of Default, as
hereinafter defined, by Tenant hereunder, Landlord, at its
sole option, may cause the forfeiture of the Security Deposit
as provided in Section 12.03 hereinafter, or apply the
Security Deposit to cure such Event of Default. Landlord shall
not be required to apply the Security Deposit to past due
rent.
(d) The Security Deposit shall be returned to Tenant, less damages
or unpaid obligations owed by Tenant to Landlord pursuant to
this Lease within sixty (60) days of the expiration of the
Term hereof, together with an itemized list of deductions.
(e) Landlord may deliver the Security Deposit to any purchaser
of Landlord's interest in the Premises in the event that such
interest be sold, whereupon Landlord shall be discharged from
further liability with respect thereto. Tenant shall not be
entitled to any interest on the Security Deposit, and Landlord
shall have the right to commingle the Security Deposit with
other funds of Landlord.
(f) The Security Deposit shall not be considered an advance
payment of Rent or a measure of Landlord's damages in case of
default by Tenant.
(g) Should the Security Deposit be applied to cure an Event of
Default. Tenant shall reimburse Landlord for the amount so
applied within ten (10) days after notice to Tenant of such
application.
3.04 Rent. The term "Rent" as used in this Lease shall mean Base Rent
plus all other amounts provided for in this Lease to be paid by Tenant, all of
which shall constitute rental in consideration for this Lease and the leasing of
the Premises.
3.05 Late Charges. All past due installments of rent or other payments,
charges, costs or damages due from Tenant to Landlord shall bear interest at
the rate of 18% per annum or the maximum rate of interest allowed by law from
date due until paid if such rate is lower than 18% per annum. Tenant hereby
acknowledges that late payment by Tenant to Landlord of rent and other sums due
hereunder will cause Landlord to incur costs not contemplated by this Lease and
in addition to interest charges, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed on Landlord by
the terms of any mortgage or deed of trust covering the Premises. If any check
from Tenant to Landlord is returned unpaid by Tenant's bank for any reason
whatsoever. Landlord shall have the right, in its sole and absolute discretion,
to require all future payments to be made by cashier's check or money order for
such period as Landlord deems necessary or desirable. Other remedies
notwithstanding, if
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the monthly rental payment is not received by Landlord on or before the fifth
(5th) day of each month for which rent is due, or if any other payment due
Landlord by Tenant is not received by Landlord on or before the fifth (5th) day
of the month next following the month in which Tenant was invoiced an initial
service charge of twelve percent (12%) of such past due amount shall become due
and payable in addition to such amounts owed under this Lease. In addition, if
the monthly rental payment is not received by Landlord on or before the
fifteenth (15th) day of the month for which rent is due, or if any other
payment due Landlord by Tenant is not received by Landlord on or before the
fifteenth (15th) day of the month next following the month in which Tenant was
invoiced, an additional service charge of twelve percent (12%) of such past due
amount shall become due and payable in addition to such amounts owed under the
Lease and the initial service charge. Payment of such interest and service
charges shall not excuse or cure any default by Tenant under this Lease.
3.06 Place and Manner of Payment. Rent and any other payment required
to be made to Landlord shall be made to the address specified in the Basic Lease
Information or elsewhere in the United States of America as Landlord may from
time to time designate in writing, in legal Lender for the payment or public and
private debts without notice or demand, and without abatement, reduction, or
deduction therefrom (except as provided in Sections 10.01 and 10.02). For
purposes of establishing venue in any proceeding relating to this Lease, all
such amounts shall be deemed payable in Xxxxxx County, Texas, where exclusive
venue shall lie. Failure by Tenant to pay Rent shall constitute a default
hereunder, and shall give rise to all remedies available to Landlord under this
Lease, in equity and at law for non-payment of rent.
ARTICLE IV
TAXES
4.01 Personal Property Taxes. Tenant shall pay before the same become
delinquent all taxes which may be charged, assessed, or imposed upon all
fixtures, equipment and other personal property located in or on the Premises,
and Tenant shall pay all license fees, sales taxes and other taxes which may be
imposed upon the business of Tenant conducted upon the Premises.
4.02 Definition or "Real Property Taxes". As used herein, the term
"real property taxes" shall include any form or assessment, license fee, rent
tax, rent sales tax, levy, penalty, or tax, (other than inheritance or estate
taxes), imposed by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school;
agricultural, lighting, drainage or other improvement, district, thereof, as
against any legal or equitable interest of Landlord in the Premises or in the
Property of which the Premises are a part, as against the Landlord's right to
rent or other income therefrom, or as against Landlord's business or leasing the
Premises.
4.03 Joint Assessment of "Real Property Taxes". If the Property is not
separately assessed. Tenant's liability shall be an equitable proportion of the
real property taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Landlord from the
respective valuations assigned in the assessor's work sheets or such other
information as may be available. Landlord's determination thereof shall be
conclusive.
4.04 Payment of Real Property Taxes. Landlord shall pay all real
property taxes applicable to the Property; provided, however, that Tenant shall
pay during the term hereof as Additional Rent. Tenant's pro rata share of the
amount of the increases, if any, by which real property taxes applicable to the
Property increases over and above the amount being paid by Landlord in the Base
Year. Tenant shall pay Tenant's pro rata share of the amount or such real
property Lax increases within thirty (30) days after receipt of Landlord's
written statement setting forth the amount of such increase. Landlord's
determination of the amount due shall be conclusive. If the term of this Lease
shall not expire concurrently with the expiration period covered by such real
property taxes, Tenant's liability for the amount or the increased real property
taxes shall be prorated on an annual basis.
4.05 Increase In "Real Property Taxes". Notwithstanding the provisions
of this Article IV, Tenant shall pay any increase in "real property taxes"
resulting from any and all improvements of any kind whatsoever placed on or in
the Premises for the benefit of or at the request of Tenant regardless of
whether said improvements were installed or constructed either by Landlord, or
Tenant, except those items included with the original Premises.
ARTICLE V
UTILITIES
5.01 Utilities. Landlord shall provide normal utility service
connection to the Premises. Tenant, at its sole expense, for its sole account
and at all times shall make all arrangements, contracts, deposits and payments
required for any utility services, gas, water, sewer, electricity, lighting, air
conditioning, heating, telephone service, security services, janitorial
services, trash pickup, and other services of any kind which may be desired by
Tenant. Under no
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circumstances will Landlord be liable for interruptions or failure in the supply
of any such utilities, nor shall such interruptions or failure constitute an
eviction or disturbance of Tenant's use or possession of the Leased Premises, or
a breach by Landlord of any of its obligations hereunder or entitle Tenant to be
relieved from any of its obligations hereunder (including monetary obligations).
ARTICLE VI
REPAIRS AND MAINTENANCE
6.01 Maintenance by Landlord. Landlord shall at its expense maintain
only the roof, foundation and the structural soundness of the exterior walls
(excluding all windows, window glass, plate glass and all doors) of the building
in good repair and condition, except for reasonable wear and tear and repairs
occasioned by the act or negligence of Tenant, its agents, employees or
invitees. Tenant shall repair and pay for any damage caused by Tenant's
negligence or default hereunder or resulting from any forced entry or break-in
at the demised Premises. Tenant shall immediately give written notice to
Landlord of the need for repairs, and Landlord shall proceed promptly to make
such repairs after having had reasonable opportunity. Landlord's liability
hereunder shall be limited to the cost of such repairs or corrections.
6.02 Maintenance by Tenant. Tenant shall, at its own cost and expense,
maintain all other parts of the building and other improvements on the demised
Premises (including the area located at the rear of the demised Premises) in
good repair and condition (including all necessary replacements), including, but
not limited to, all windows, window glass, plate glass, all doors, plumbing
lines, pipes and fixtures, including sanitary sewer lines to the point of
connection with the main sewer line serving the demised Premises and all water
lines from the meter to the demised Premises, air conditioning and heating
systems, ducts and equipment, electrical lines, fixtures and equipment,
including provisions for electrical service to the demised Premises, and
regular removal of debris. Tenant shall take good care of the demised
Premises and suffer no waste, and Tenant shall keep the parking areas, driveways
and alleys adjacent to the demised Premises in a clean and sanitary
condition. Should Tenant neglect to make any repairs or perform any maintenance
required herein within ten (10) days after written notice from Landlord, then
Landlord shall have the right (but not the obligation) to make such repairs
without liability to Tenant for any loss or damage which may result to its stock
or business by reason of such repairs, and any reasonable costs therefor shall
be charged to Tenant as Additional Rent and shall be payable by Tenant with the
payment of rental next due hereunder. At the termination of this Lease, Tenant
shall deliver up the demised Premises in the same good order and condition as
existed at the beginning date of this Lease, ordinary wear and tear, natural
deterioration beyond the control of Tenant, and damage by fire, tornado or
other casualty alone excepted.
ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.01 Landlord's Assignment. Landlord shall have the right to transfer
and assign in whole or in part, by operation of law or otherwise. Its rights and
obligations under this Lease whenever Landlord, in its sole judgment, deems it
appropriate without any liability to Tenant and Tenant shall attorn to any party
to which Landlord transfers the Leased Premises.
7.02 Tenant's Assignment and Subleasing. Tenant shall not assign its
rights under this Lease or sublease any part of the Premises, or permit any
licensee or concessionaire to operate in or out of the premises, without the
prior written consent of the Landlord. Should Landlord consent to any such
assignment, sublease, license or concession, any rent (including, without
limitation, any percentage rent included therein) received by Tenant therefrom
in excess of the Rent allocable to the area so assigned or sublet shall be paid
to Landlord immediately upon receipt by Tenant. No assignment or subletting by
Tenant or any license or concession arrangement shall relieve Tenant of any
obligation under this lease. Any attempted assignment or sublease by Tenant or
any license or concession arrangement in violation of the terms and covenants of
this Section shall be void and shall constitute a material breach of this Lease.
ARTICLE XIII
INSURANCE, WAIVER OR SUBROGATION, AND INDEMNITY
8.01 Tenant's Insurance. Tenant shall provide public liability and
property damage insurance for its business operations on the Leased Premises in
the amount of $1.000,000.00 which policy shall cover the Landlord as well as the
Tenant. Said Insurance policies required to be provided by Tenant herein shall
name Landlord as an insured and shall be issued by an insurance company approved
by Landlord. Tenant shall provide Landlord with certificates of insurance
evidencing the coverage required herein. Tenant shall be solely responsible for
fire and casualty insurance on Tenant's property on or about the Leased
Premises. If Tenant does not maintain such insurance in full force and effect.
Landlord may notify Tenant of such failure and if Tenant does not deliver to
Landlord within ten (10) days after such notice certification showing all such
insurance to be in full force and effect, Landlord may at his option take out
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the necessary insurance to comply with the provision hereof and pay the premiums
on the items specified in such notice, and Tenant covenants thereupon on demand
to reimburse and pay Landlord any amount so paid or expended in the payment of
the Insurance premiums required hereby and specified in the notice, with
interest thereon at the rate of ten percent (10%) per annum from the date of
such payment by Landlord until repaid by Tenant.
8.02 Property Insurance. Landlord may at its election, obtain and keep
in force during the term of this Lease a policy or policies of insurance
covering loss or damage to the Project in an amount of 80% (or such other
percentage as Landlord elects or as may be necessary to comply with the
provisions of any co-insurance clauses of the policy) of the replacement value
thereof, less applicable deductions, providing protection against all perils
included within the classification of fire and extended coverage; such coverages
and endorsements to be as defined, provided and limited in the standard bureau
forms prescribed by the insurance regulatory authority for the state in which
the Premises are situated for use by insurance companies admitted in such state
for the writing of such insurance on risks located within such state. The
proceeds of any such insurance shall be for the sole benefit of Landlord, under
its sole control and shall be paid to Landlord. Landlord shall not be obligated
in any way or manner to insure any personal property (including but not limited
to, any furniture, machinery, goods or supplies) of Tenant or which Tenant may
have upon or within the Premises or any fixtures installed by or paid for by
Tenant upon or within the Premises or any additional improvements which Tenant
may construct on the Premises. Tenant shall pay during the term hereof, as
Additional Rent, Tenant's pro rata share of the annual amount of the increase,
if any, by which the premiums for the insurance exceed the amount of insurance
premiums paid by Landlord for the Base Year. The term "property insurance
premium" shall include the total annual insurance premiums which accrue on all
casualty insurance, public liability and property damage insurance, rent loss
insurance and other insurance which, from time to time, may at Landlord's
election be carried by Landlord with respect to the Property and its operation
during any applicable calendar year (or portion thereof) occurring during the
term of this Lease. Tenant shall pay such premium increases to Landlord within
thirty (30) days after receipt by Tenant of Landlord's written statement setting
forth the amount of such increase. Landlord's determination of the amount due
shall be conclusive. If the term of this Lease shall not expire concurrently
with the expiration of the period covered by such insurance, Tenant's liability
for the amount of the premium increases shall be prorated on an annual basis.
8.03 Indemnity By Tenant and Landlord. Except for injury, death or
property damage resulting from the negligence of Landlord for which Landlord is
legally liable. Tenant agrees to expressly indemnify and save Landlord harmless
from all claims (including costs and expenses of defending against such claims)
arising or alleged to arise from any act or omission of Tenant or Tenant's
agents, employees of contractors, or resulting from any injury to any person or
damage to any property of any person occurring during the term of this Lease in
the Project or in the Leased Premises. Tenant agrees to use and occupy the
Premises and other facilities of the Project at its own risk and hereby releases
Landlord, its agents or employees, from all such claims for any damage or injury
to the full extent permitted by law.
Except for injury, death or property damage resulting from the
negligence of Tenant for which Tenant is legally liable, Landlord agrees to
expressly indemnify and save Tenant harmless from all claims (including costs
and expenses of defending against such claims) arising or alleged to arise from
any act or omission of Landlord or Landlord's agents, employees or contractors
or resulting from any injury to any person or damage to any property of any
person occurring during the term of this Lease in the Project or in the Premises
and other facilities of the Project and hereby releases Tenant, its agents or
employees, from all such claims for any such damage or injury to the full extent
permitted by law.
8.04 Waiver of Right of Recovery. Neither Landlord nor Tenant shall be
liable to the other, or to any insurance company (by way of subrogation or
otherwise) insuring the other Party, for any loss or damage to any building,
structure, improvement or other tangible property, or liability for personal
injury, or loss under workmen's compensation laws and benefits even though such
loss or damage might have been occasioned by the negligence of such party or its
agents or employees. However, if by reason of the foregoing waiver, either party
shall be unable to obtain any such insurance, such waiver shall be deemed not to
have been made by either party. Further, if by reason of the foregoing waiver,
either party shall be unable to obtain any such insurance without the payment of
an additional premium therefore, then, unless the party claiming the benefit of
such waiver shall agree to pay such party for the cost of such additional
premium, within thirty (30) days after notice thereof, setting forth such
additional premium requirement and the amount of such additional premium, such
waiver shall be or no force and effect between either party,
8.05 Landlord Not Responsible for Acts of Others. Landlord shall not be
responsible or liable to Tenant, or to those claiming by, through or under
Tenant for any loss or damage that may be occasioned by or through the acts or
omissions of persons occupying space adjoining the Premises, or any part thereof
or adjacent to or connected to the Premises or any other part of the Project or
otherwise, or for any loss or damage resulting to Tenant, or those claiming by,
through or under Tenant, and their respective property, from the breaking,
bursting, stoppage or leaking of any electrical cables or wires, or water, gas,
sewer, heating, air-conditioning or steam pipes, lines, ducts or vents. To the
maximum extent permitted by law, Tenant agrees that it
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shall use and occupy the Premises, and such other portions of the Project as
Tenant shall use at its own risk.
ARTICLE IX
IMPROVEMENTS AND ALTERATIONS
9.01 Construction by Landlord. Landlord will construct at his sole cost
and expense the Project shell including parking areas, exterior lighting and
landscaping in which the Leased Premises are to be located.
9.02 Tenant's Plans and Specifications. Tenant shall prepare and
present to Landlord plans and specifications for the work to be done as shall be
required to finish the Leased Premises in accordance with Tenant's needs and
desires ("Work Letter Agreement") attached hereto as Exhibit "E" and
incorporated herein by reference. Such Tenant Work shall include only costs for
actual improvements and fixtures to Landlord's Project and shall not include
expenditures for Tenant's trade fixtures, equipment, moving expense or similar
items not constituting permanent improvements to Landlord's Project. Such plans
and specifications shall be subject to Landlord's written approval. In the event
such plans and specifications, as submitted, fail to meet with Landlord's
immediate approval. Landlord shall promptly notify Tenant of those particular
matters to which Landlord objects and how the same may be amended or corrected
in order to meet with Landlord's approval. Upon receipt of any such notice from
Landlord, Tenant shall promptly cause such plans and specifications to be
revised in such manner as shall be requisite to obtaining Landlord's final
approval of the same, which revised plans shall be forthwith submitted for
Landlord's approval. When Landlord and Tenant have finally approved Tenant's
Plans and Specifications, Landlord hereby expressly reserving the right, in
Landlord's reasonable discretion and judgment, to approve all Tenant finish
work, which approval shall not be unreasonably withheld or delayed, the same
shall become a part hereof and shall be incorporated herein by reference for all
purposes as Exhibit "F". Landlord shall pay without reimbursement, from Tenant,
up to, but not in excess of the amount specified in the basic lease information
for improvements to the Leased Premises. Any costs in excess of this allowance
of the Tenant Finish Allowance shall be paid directly by Tenant.
9.03 Tenant's Alterations. Upon Landlord's reasonable consent, Tenant
may from time to time if Tenant shall not then be in default), at its own
expense alter, renovate, or improve the Premises, provided such work be
performed in a good and workmanlike manner by contractors and subcontractors
approved by Landlord, in accordance with accepted building practices and
applicable laws and so as not to adversely affect or lessen the value of the
Premises. Prior to the commencement of any such work, Tenant, shall obtain
Landlord's prior written approval of the plans and specifications therefor and
the selection of contractors and subcontractors and shall satisfy Landlord's
requirements for bonding, insurance, and Landlord's other contractor
requirements. Failure by Tenant to complete any work approved and commenced as
provided hereunder within the time periods specified by Landlord in its approval
shall constitute a material breach of this Lease.
9.04 Ownership at Termination of Lease. Any and all alterations,
additions, improvements and fixtures which may be made or installed by either
Landlord or Tenant upon the Premises and which in any manner are permanently
attached to the floor, walls, or ceilings (including without limitation any
air-conditioning, heating, and kitchen equipment) shall at the expiration or
termination of this Lease automatically become the property of the Landlord
without reimbursement to Tenant therefor, shall remain upon the Premises and
shall be surrendered with the Premises as a part thereof. Tenant's trade
fixtures, furniture, and equipment which may be installed in the Premises prior
to or during the Term hereof at the cost of Tenant and which are not attached to
the floors, walls, or ceilings shall not be deemed to become a part of the
Premises and may be removed by Tenant from the Premises upon the expiration of
termination or this Lease if, but only if, (a) Tenant is not then in default
hereunder and (b) such removal will not damage the Premises or any improvements,
or if such removal will damage the Premises or any improvements, Tenant repairs
any and all such damage. If Tenant does not remove any such trade fixtures,
furniture and equipment prior to the expiration or termination or this Lease
they shall automatically become the property of Landlord.
ARTICLE X
DAMAGE, DESTRUCTION, OR CONDEMNATION
10.01 Damage and Repair. If the Premises are partially damaged or
destroyed by fire or other casualty so as to render the premises untenantable in
whole or in part for more than Ten (10) consecutive business days, the Rent
provided for hereunder shall xxxxx from the expiration of such Ten (10) business
day period pro rata as to the portion of the Premises rendered untenantable
until such time as the Premises are made tenantable, as determined by Landlord.
The Premises shall be deemed to have been rendered untenantable by casualty only
if following such casualty, Tenant is not able to use the Premises
substantially for the purposes for which the Premises were used prior to such
casualty. Any such abatement shall automatically extend the Term for the
duration or such abatement. Subject to the following sentence to the extent
insurance proceeds are made available therefor, Landlord agrees (subject to the
requirement of
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any "Security Documents" or "Landlord's Mortgagee") to commence and prosecute
necessary structural repairs promptly and with reasonable diligence, provided,
however, that Landlord shall have no obligation to make any such Repairs with
respect to casualties occurring during the final two (2) years of the Term. If
such damage or destruction will result in the Premises being untenantable in
substantial part for a period reasonably estimated by Landlord to be six 16)
months or longer and Landlord decides not to rebuild, then all Rent owed up to
the date of such damage or destruction shall be paid by Tenant, and this Lease
shall terminate upon notice thereof to Tenant. Landlord shall give Tenant
written notice of its decisions, estimates, or elections under this Section
within sixty (60) days after any such damage or destruction. The foregoing
provisions of this Section 10.01 notwithstanding, if any such damage or
destruction described in this Section results in whole or in part from the acts,
negligence or omissions of Tenant, its agents, employees, contractors,
subcontractors, invitees, customers, licensees or concessionaires, this Lease
shall continue In full force and effect with no abatement of Rent, whether or
not Landlord elects to make necessary structural repairs (which Landlord shall
have no obligation to do).
10.02 Condemnation. If the Premises, or any part thereof, shall be
taken or condemned for any public purpose (or conveyed in lieu or in settlement
thereof) to such an extent as to render the remainder or the Premises, in the
opinion of Landlord, not reasonably suitable for Tenant's occupancy or continued
use, as authorized in this Lease, then this Lease shall, at the option of
Landlord, forthwith cease and terminate, and all proceeds from any taking or
condemnation of the Premises shall belong to and be paid by Landlord. If this
Lease is not so terminated, Landlord shall repair any damage resulting from such
taking, to the extent and in the manner provided in Section 10.01 of this
Article, and Rent hereunder shall (a) be abated to the extent the Premises are
rendered untenantable during the period of repair, and (2) thereafter be
adjusted on an equitable basis considering the areas of the Premises taken and
remaining.
ARTICLE XI
MORTGAGE FINANCING
11.01 Subordination. The rights and interests of Tenant under this
Lease and in and to the Premises shall be subject and subordinate to all deeds
of trust, mortgages and other security instruments and to all renewals,
modifications, consolidations, replacements, and extensions thereof (the
"Security Documents") heretofore or hereafter executed by Landlord covering the
Premises or any parts thereof, but the holder ("Landlord's Mortgage") of such
Security Documents shall have the right at any time to elect to make this Lease
superior to such Security Documents.
11.02 Attornment. In the event any proceedings are brought for
foreclosure, or in the event of exercise of the power or sale or any conveyance
or deed in lieu or foreclosure under any mortgage or deed of trust made by
Landlord covering the Premises, the Tenant shall, if requested, attorn to the
purchaser upon any such foreclosure or sale and shall recognize such purchase as
Landlord under this Lease.
11.03 Notice to Landlord's Mortgagee. Tenant shall, if requested by
any Landlord's Mortgagee, deliver to Landlord's Mortgagee a copy of all notices
given to Landlord hereunder. Landlord's Mortgagee shall have the right (but not
the obligation) to cure any defaults of Landlord hereunder.
11.04 Further Assurances. Tenant shall, upon the request of Landlord
and/or the holder of any mortgage on the Premises, or any part thereof, execute
and deliver such instruments as may be required by Landlord and such holder to
make this Lease either superior or subordinate to any mortgages, deeds or trust,
ground leases, or any financing covering the Premises or any part thereof.
ARTICLE XII
EVENTS OF DEFAULT AND LANDLORD'S REMEDIES
12.01 Events of Default. Each or the following acts, omissions, or
occurrences shall constitute an "Event of Default" and a material breach of
this Lease:
(a) Failure by Tenant to pay timely any Rent or other payments
required to be paid hereunder.
(b) Failure by Tenant to perform or observe any other covenant,
condition or provision or this Lease to be performed or
observed by Tenant upon the expiration of ten (10) days after
written notice to Tenant of such failure,
(c) The adjudication of Tenant to be Insolvent, the institution of
an order for relief with respect to Tenant, or the filing or
execution or occurrence of: a petition in bankruptcy or other
insolvency proceeding by or against Tenant; a petition or
answer seeking relief by or against Tenant under any provision
of the federal or state bankruptcy laws or any similar law; an
assignment (or the benefit of
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creditors or a composition: Tenant's taking any action, or
permitting any action to be taken under any bankruptcy,
Insolvency, reorganization, or rehabilitation law or
proceeding, or a petition or other proceeding by or against
Tenant for the appointment of a trustee, custodian, receiver,
or liquidator of Tenant or any of Tenant's property or a
proceeding by any governmental authority for the dissolution
or proceeding against Tenant is dismissed or stayed within
thirty (30) days thereafter.
(d) The occurrence of any of the items described in paragraph (c)
above with respect to any guarantor of this Lease.
(e) A substantial change in the ownership or management of
Tenant, or the sale or transfer by Tenant of a significant
portion of Its assets.
(f) Abandonment or vacating of the Premises or any significant
portion thereof.
(g) Determination by Landlord that Tenant has allowed any liens to
be filed against the Premises.
12.02 Abandonment. Tenant's absence from the Premises for seven (7)
consecutive business days while all or any portion of the Rent is in default
shall be deemed an abandonment of a substantial portion of the Premises. Nothing
herein shall prevent Landlord or its agent from removing the contents of the
Premises when Tenant has abandoned them. Tenant shall be liable for, among other
things, all expenses and reasonable storage charges after the abandonment,
whether the contents remain on the Premises or be removed by Landlord. In
addition, the vacating or all or a substantial portion of the Premises by Tenant
shall constitute abandonment by Tenant, whether or not Tenant is in default of
rental payments.
12.03 Landlord's Remedies.
(a) Upon the occurrence of any Event, of Default. Landlord may, at
its option, in addition to any and all other rights, remedies,
or recourses available to it. hereunder or at law or In
equity, do any one or more of the following: (i) Terminate
this Lease, in which event Tenant shall immediately surrender
possession of the Premises to the Landlord, (ii) Enter upon
and take possession of the Premises and Tenant's property
located therein and expel or remove Tenant and any other
occupant therefrom, with or without having terminated the
Lease, (iii) Cause the forfeiture of the Security Deposit, if
any, at its discretion alter locks and other security devices
at the Premises, (iv) Apply the Security Deposit, if any, at
its discretion, without diminishing or affecting any of
Tenant's obligations for the payment of Rent or otherwise
without any further accountability to Tenant.
(b) Exercise by Landlord of any one or more remedies herein
granted or otherwise available shall not be deemed to be an
acceptance or surrender of the Premises by Tenant, whether by
agreement or by operation or law, it being understood that
such surrender can be effected only by the written agreement
of Landlord and Tenant. No such alteration of security devices
and no removal or other exercise or dominion by Landlord over
the property of Tenant or others at the Premises shall be
deemed unauthorized or constitute a conversion, Tenant hereby
consenting, after any Event of Default, to (the aforesaid
exercise of dominion over Tenant's property within the
Premises. All claims for damages for reason of such re-entry
and/or repossession and/or alteration or locks or other
security devices are hereby waived, as are all claims for
damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings, or other legal
process.
(c) If Landlord terminates this Lease by reason of an Event of
Default, then Tenant shall remain liable for all Rent, any
other item of Rent, and all other indebtedness accrued to the
date of such termination, plus, as damages, an amount of money
equal to the amount (if any) by which (i) the total Rent and
all other payments due for the balance of the original Term
exceed, (ii) the fair market rental value of the Premises for
the balance of the original Term, as of the occurrence of the
Event or Default, such excess to be discounted at the rate of
10% per annum to present value.
(d) If Landlord elects to repossess the Premises without
terminating this Lease, then Tenant shall be liable for and
shall pay to Landlord all Rent, and all other indebtedness
accrued to the date of such repossession, plus all Rent,
additional rent and other sums required to be paid by Tenant
to Landlord over the remainder of the original scheduled Term.
diminished by any net sums thereafter received by Landlord
through reletting or the Premises during such period (after
deducting expenses incurred by Landlord as hereinafter
provided). Such amounts shall be paid by Tenant to Landlord in
monthly installments on the
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first day of each calendar month during the remainder of the
original scheduled Term. In no event shall Tenant be entitled
to any excess or any net sums obtained by reletting over and
above the amounts required to be paid by Tenant under this
Lease. Actions to collect amounts due by Tenant as provided in
this paragraph may be brought from time to time on one or more
occasions, without the necessity of Landlord's waiting until
the expiration of the original scheduled Term.
(e) In case of an Event of Default, Tenant shall also be liable
for and shall pay to Landlord upon demand, in addition to any
other sums provided to be paid hereunder; brokers' fees
incurred by Landlord in connection with reletting all or any
portion of the Premises; the costs of removing and storing
Tenant's or other occupant's property found in the Premises;
the costs or repairing, altering, remodeling or otherwise
putting the Premises into their original condition at the
inception of this Lease; and all reasonable expenses incurred
by Landlord in enforcing Landlord's remedies, including
reasonable attorneys' fees.
(f) in the event of any such reletting, Landlord may relet the
whole or any portion of the Premises for any period, to any
tenant, for any rental and for any use and purpose.
(g) The following provisions shall override and control any
conflicting provisions of Section 93.002 of the Texas Property
Code of 1990, as well as any successor statute governing the
right of a landlord to change the door locks of commercial
tenants. In the event an Event of Default occurs, Landlord is
entitled and is hereby authorized, without any further notice
to Tenant whatsoever, to enter upon the Premises by use of a
master key, a duplicate key, or other peaceable means, and to
change, alter, and/or modify the door locks on all entry doors
of the Premises, thereby permanently excluding Tenant and its
officers, principals, agents, employees and representatives
therefrom. In the event that Landlord has either permanently
repossessed the Premises pursuant to the foregoing provisions
of this Lease, or has terminated this Lease by reason of
Tenant's default, Landlord shall not thereafter be obligated
to provide Tenant with a key to the Premises at any time,
regardless of any amounts subsequently paid by Tenant
provided, however, that in any such instance, during
Landlord's normal business hours; and at the convenience of
Landlord, and upon receipt of written request from Tenant
accompanied by such written waivers and releases as Landlord
may require, Landlord will (at Landlord's option) either (i)
escort Tenant or its authorized personnel to the Premises to
retrieve any personal belongings or other property of Tenant
not subject to the Landlord's statutory lien or the lien and
security interest described in Section 14.09 or this Lease, or
(ii) obtain a list from Tenant of such personal property as
Tenant intends to remove, whereupon Landlord shall remove such
property and make it available to Tenant at a time and place
designated by Landlord. However, if Landlord elects option
(ii), Tenant shall pay, in cash, in advance, all costs and
expenses estimated by Landlord to be incurred in removing such
property and making it available to Tenant and all moving
and/or storage charges theretofore incurred by Landlord with
respect to such property. If Landlord elects to exclude Tenant
from the Premises without permanently repossessing or
terminating pursuant to the foregoing provisions of this
Lease, then Landlord shall not be obligated to provide Tenant
a key to re-enter the Premises until such time as all
delinquent Rent and other amounts due under this Lease have
been paid in full and all other defaults, if any, have been
completely cured to Landlord's satisfaction (if such cure
occurs prior to any actual permanent repossession or
termination), and Landlord has been given assurance
reasonably satisfactory to Landlord evidencing Tenant's
ability to satisfy its remaining obligations under this Lease.
During any such temporary period or exclusion, Landlord will,
during Landlord's regular business hours and at Landlord's
convenience, upon receipt of written request from Tenant
(accompanied by such written waivers and releases as Landlord
may require), escort Tenant or its authorized personnel to the
Premises to retrieve personal belongings of Tenant or its
employees, and such other property of Tenant as is not subject
to the Landlord's statutory lien and security interest
described in section 14.09 of this Lease. All rights and
remedies of Landlord shall be cumulative and not exclusive.
Landlord shall be entitled to pursue simultaneously multiple
or alternative remedies, at any time to abandon or resume
pursuit of any remedy, and at, any time to pursue additional
remedies.
12.04 Non-Waiver; Time of Essence. No consent or waiver, express or
implied, by Landlord to or of any breach in the performance or observance by
Tenant of any of the covenants, conditions or provisions in this Lease shall be
Construed as a consent of waiver to or of any other breach in the performance or
observance by Tenant, of the same or any other covenant, condition or provision.
Neither failure on the part or Landlord to complain of any action or non-action
on the part of Tenant or to declare Tenant in default, no matter how long such
failure may continue, nor acceptance of rental or other sums from Tenant after
any such breach, shall be deemed to be a waiver by Landlord of any of its rights
hereunder, except as
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otherwise specifically provided herein. Time is of the essence with respect to
the performance and observance by Tenant of every covenant, condition and
provision of this Lease in which time of performance is a factor.
ARTICLE XIII
ENVIRONMENTAL COVENANTS
13.01 Compliance. Tenant shall not, and shall not permit any other
person to, use any portion of the Premises for any activity involving, directly
or indirectly, the use, production, storage, handling, transfer, refinement,
treatment, processing, transport, generation, removal, remediation, manufacture,
discharge, release or disposal or any Hazardous material, except those
chemicals, lubricants and cleaning fluids approved by Landlord and used and
stored in compliance with all legal requirements.
13.02 Definitions. For purposes of this Agreement, "Hazardous
Materials" shall mean petroleum and petroleum by-products; any pollutant; any
contaminant; any flammable, explosive, or radioactive material; any hazardous
waste, toxic substance, or related material; and any other substance or material
defined or designated as a hazardous or toxic substance, material, or waste by
any legal requirement applicable to the use of or any activity conducted upon
the Premises or the removal of which is required, or the manufacture, use,
maintenance, storage, ownership, or handling of which is restricted, prohibited,
regulated, or penalized by any legal requirement applicable to the use of or any
activity conducted upon the Leased Premises, and shall include:
(i) those substances included within the definition of "hazardous
substances," "extremely hazardous," "hazardous materials," "hazardous
waste," "toxic substances" or "solid waste" in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Sections 9601 et seq., the Emergency Planning and
Community Right-to-Know Act, 42 U.S.C. Sections 11001-11050, the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901
et seq., and the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 et seq., and in the regulations adopted and promulgated
pursuant to said laws;
(ii) those substances listed in the United States Department of
Transportation Table (49 C.F.R. 172.101 and amendments thereto) or by
the Environmental Protection Agency (or any successor agency) as
hazardous substances (40 C.F.R. Part 302 and amendments thereto);
(iii) such other substances, materials, and wastes which are regulated
under any legal requirement applicable to the use of or any activity
conducted upon the Leased Premises, or which are classified as
hazardous or toxic under any legal requirement applicable thereto;
(iv) any substance which contains polychlorinated byphenyls (PCBs),
and any asbestos or asbestos containing substance; and
(v) any waste, substance, or materials that exhibit any of the
characteristics enumerated in 40 C.F.R. Sections 261.20-261.24,
inclusive, or any "extremely hazardous" substance listed under Section
302 of the Superfund Amendment And Reauthorization Act of 1986
("XXXX") that are present in excess of or equal to threshold planning
or reportage quantities defined under XXXX.
13.03 Indemnification. Tenant shall defend, indemnify and hold Landlord
and Landlord's officers and directors harmless from any and all liabilities,
claims, actions, demands, costs or expenses (including, without limitation,
attorneys' fees and expenses) of any and every kind whatsoever which may now or
in the future be paid, incurred or suffered by or asserted against Landlord with
respect to, or as a direct or indirect result of, Hazardous Materials
contamination caused by Tenant or any of Tenant's employees, servants, agents,
partners, directors, officers, shareholders, contractors, subcontractors,
successors or assigns. Landlord shall defend, indemnify and hold Tenant and
Tenant's officers and directors harmless from any and all liabilities, claims,
actions, demands, costs or expenses (including, without limitation, attorneys'
fees and expenses) of any and every kind whatsoever which may now or in the
future be paid, incurred or suffered by or asserted against Tenant with
Hazardous Materials contamination caused by Landlord or any of Landlord's
employees, servants, agents, partners, directors, officers, shareholders,
contractors, subcontractors, successors or assigns but not by Landlord's tenants
or predecessors-in-interest.
ARTICLE XIV
COMMON AREAS
14.01 Definitions. The phrase "Common Areas" means all areas and
facilities outside the Premises, whether or not located on the Property that are
provided and designated for general use and convenience of Tenant and other
tenants and their respective officers, agents
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and employees, customers, licensees, visitors and invitees. Common Areas include
(but are not limited to) pedestrian sidewalks, landscaped areas, roadways,
driveways and parking areas. Landlord reserves the right from time to time to
make changes in the shape, size, location, number, and extent of the land and
improvements constituting the Common Areas. Landlord may designate, from time to
time, additional land for use as a part thereof, and any additional land so
designated by Landlord for such use shall be included until such designation is
revoked by Landlord. Nothing this paragraph or elsewhere in this Lease shall be
construed as constituting the Common Areas, or any part thereof, as part of the
Premises.
14.02 Maintenance. During the term of this Lease, Landlord shall
operate, manage and maintain the Common Areas so that they are clean and free
from accumulations of debris, filth, rubbish, and garbage (other than normal
Tenant trash pick-up which is a Tenant responsibility). The manner in which such
Common Areas shall be so maintained, and the expenditures for such maintenance,
shall be at the sole discretion of Landlord, and the use of the Common Areas
shall be subject to such reasonable regulations and changes therein as Landlord
shall make from time to time, including (but not by way of limitation) the right
to close from time to time, if necessary, all or any portion of the Common Areas
to such extent as may be legally sufficient, in the opinion of Landlord's
counsel, to prevent a dedication thereof or the accrual of rights of any person
or the public therein. Landlord shall also have the right to contract for
dumpsters and normal trash pick-up for the Property, and Tenant shall pay
Tenant's pro rata share of the cost for such service in such intervals as
Landlord shall invoice Tenant for same.
14.03 Common Area Maintenance Costs. Tenant hereby agrees to pay, in
the manner as provided herein for the payment of Rent, throughout the original
and any extended term of this Lease. Tenant's pro rata share of Common Area
Maintenance Costs paid or to be paid by Landlord, as described below:
(a) The term "Common Area Maintenance Costs" shall mean all costs
and expenses of every kind paid or incurred in connection with
the operation and upkeep, of the Common Areas within the
Property, including without limitation, the costs of cleaning
and landscaping the Common Areas and where necessary the
costs of improving, repairing or replacing any of the common
facilities comprising the Common Areas or common improvements
in the vicinity of the Property (as determined by Landlord)
and the cost of policing and protecting same. In addition to
the foregoing, the Common Area Maintenance Costs shall
include maintaining the exterior maintenance of the Premises
and buildings in the Property (including painting) and the
common storm and sanitary sewage line, periodic resurfacing
and repairing of the sidewalks, roadways, driveways and
parkway areas. If Tenant is responsible for obstructions or
stoppage of the common storm or sanitary sewage line, then
Tenant shall pay the entire cost thereof on demand, as
additional rent. The Common Area Maintenance Costs shall also
include subdivision maintenance fees or dues, property owner's
association fees or dues and similar charges, direct and
indirect costs or labor, personal property taxes, licenses and
permits, supplies and equipment, used or related to the
operation and maintenance of the Common Areas. Nothing in this
Subparagraph 14 shall obligate Landlord to provide any
services or facilities not otherwise required to be provided
elsewhere in this Lease.
(b) Within a reasonable period after the end of each calendar
month during the term of this Lease, or in such intervals as
Landlord elects, Landlord shall deliver to Tenant a written
statement showing the total amount due for Common Area
Maintenance Costs relating to such preceding calendar
month(s). Tenant shall pay Tenant's pro rata share of such
Common Area Maintenance Costs within thirty (30) days after
receipt of Landlord's written statement therefor.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.01 Covenant of Quiet Enjoyment. Tenant, subject to the terms and
provisions of this Lease and all governmental regulations, upon paying all the
Rent and observing, keeping, and performing all of the covenants, conditions,
and provisions of this Lease on its part to be observed, kept and performed,
shall lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises
during the Term without hindrance or ejection by any persons lawfully claiming,
by, through or under Landlord, but not otherwise.
15.02 Liability of Landlord. Any provision of this Lease to the
contrary notwithstanding, Tenant hereby agrees that no personal or corporate
liability of any kind or character whatsoever now attaches or at any time
hereafter under any condition shall attach to Landlord or any of its partners
or any of Landlord's successors and assigns or any future owner of the
Premises, or any part thereof, for the performance of any obligations of
Landlord under this Lease, and Tenant specifically agrees to look solely to
Landlord's interest in the Premises for the recovery of any judgment from
Landlord pursuant to this Lease.
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15.03 Allocation of Risks. TENANT ACKNOWLEDGES THAT IT HAS BEEN ADVISED
TO HAVE THE PROVISIONS OF THIS LEASE REVIEWED BY AN ATTORNEY OF ITS OWN CHOOSING
AND THAT IT HAS DONE SO OR KNOWINGLY ELECTED NOT TO DO SO. EACH OF THE WAIVERS,
RELEASES, AND OTHER LIMITATIONS ON LIABILITY OR CLAIMS PROVIDED IN THIS ARTICLE
OR ELSEWHERE IN THIS LEASE (INCLUDING WITHOUT LIMITATION, LIABILITY OR CLAIMS
BASED ON NEGLIGENCE OR OTHER FAULT) HAS BEEN KNOWINGLY AND INTENTIONALLY MADE
AND AGREED TO BY TENANT. THIS SECTION IS INTENDED TO SATISFY ANY REQUIREMENT OF
LAW THAT A WAIVER, RELEASE, OR OTHER LIMITATION OF CLAIMS OR LIABILITY BASED ON
NEGLIGENCE OR OTHER FAULT BE CONSPICUOUSLY DISCLOSED.
15.04 Status Report. Recognizing that both parties may find it
necessary to establish to third parties, such as accountants, banks, mortgagees,
or the like, the then current status of performance hereunder, either party, on
the written request of the other made from time to time, will promptly furnish a
written statement on the status of any matter pertaining to this Lease.
15.05 Removal of Liens. Tenant agrees to discharge within ten (10) days
of filing (either by payment or by filing or the necessary bond, or otherwise)
any mechanic(s), materialmen's or other lien or security interest against the
Premises or any part thereof or Landlord's interest therein arising out of or in
connection with Tenant's actions, negligence, or omissions to act, or the acts,
negligence, or omissions of Tenant's agents, employees, invitees, customers,
contractors, subcontractors, subtenants, licensees or concessionaires.
15.06 Attorney's Fees. In the event Landlord or Tenant brings any court
action alleging default by the other party in one or more provisions of this
Lease, the party losing such action shall pay the prevailing party its
reasonable attorney's fee.
15.07 Brokers. Each of Landlord and Tenant represents and warrants to
the other that it has not entered into any agreement with, or otherwise had any
dealings with any broker or agent other then Broker as the result of which any
commission, fee, or other compensation of any kind will be payable by the other
party in connection with this Lease. Each party will indemnify, defend, and hold
the other party harmless against any loss, liability, damage, cost, or expense
(including reasonable attorneys' fees and costs of litigation), or claim
therefor, resulting from the untruth or inaccuracy of the foregoing warranty and
representation made by such party. Any fee of commission owing to Broker will be
paid only in accordance with the terms of a separate written agreement directly
between Landlord and Broker.
15.08 Legal Interpretation. This Lease and the rights and obligations
of the parties hereto shall be interpreted and enforced in accordance with the
laws of the State or Texas. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, whether by reason of the federal or state antitrust
laws, or otherwise, the remainder of this Lease, or the application of such term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law. All obligations of either party requiring any performance
after the expiration of the Term shall survive the expiration of the Term and
shall be enforceable in accordance with those provisions pertaining thereto. If
the rights of Tenant hereunder are owned by two or more parties, such parties
shall be jointly and severally liable for the obligations of Tenant hereunder.
15.09 Notices. Any notice to be given hereunder shall be in writing and
shall be given by depositing such notice in the United States mail, postage
prepaid, registered or certified with return receipt requested, or by delivering
same in person, addressed to the party at the address specified in the Basic
Lease Information.
15.10 Landlord's Lien. To secure the payment of all Rent, and all other
sums due and to become due hereunder, and the performance of all of the Tenant's
other obligations hereunder, Tenant hereby grants to Landlord as express
contract lien on and security interest in all equipment, inventory, fixtures,
consumer goods, goods and any and all other personal property of any kind or
character of Tenant which may be placed in or on the premises and also upon all
proceeds thereof (including the proceeds of any insurance which may accrue to
Tenant by reason of damage to or destruction of any such property). This lien
and security interest are given in addition to, and not in lieu of, Landlord's
statutory lien and shall be cumulative thereto. To the extent permitted by law,
this lien and security interest may be foreclosed with or without court
proceedings. by public or private sale, with or without notice, and Landlord
shall have the right to become purchaser at any such sale upon being the highest
bidder. Upon request of Landlord, Tenant shall execute (and Landlord may file)
Uniform Commercial Code financing statements relating to the aforesaid security
interest.
15.11 Surrender of Premises and Holding Over. On the last day of the
Term, or upon the earlier termination of this Lease, Tenant shall peaceably and
quietly leave, surrender and yield up to Landlord the Premises, broom clean and
in as good condition as on the date Tenant first opens for business, excepting
only ordinary wear and tear. Prior to the surrender of the Premises to the
Landlord, Tenant, at its sole cost and expense, shall remove all liens and other
encumbrances affecting the Premises that may have resulted from the acts,
negligence, or
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omissions of Tenant, Tenant's agents, employees, invitees, customers,
contractors, subcontractors, subtenants, licensees, or concessionaires. If
Tenant fails timely to surrender the Premises or to do any or the foregoing,
Landlord may without notice, enter upon, re-enter, possess and repossess itself
thereof, by force, summary proceedings, ejectment, forcible detainer, or
otherwise, and may dispossess and remove Tenant and all persons and property
from the Premises; and Tenant hereby waives any and all damages or claims for
damages as a result thereof. Such dispossession and removal of Tenant shall not
constitute a waiver by Landlord of any claims by Landlord against Tenant. If
Tenant does not surrender possession of the Premises at the end of the Term or
upon the earlier termination of this Lease, then at the election of Landlord,
Tenant shall be a tenant-at-sufferance of Landlord and Rent due during such
holdover shall be one and one-half (1.5) times the Base Rent per month. No
holding over by Tenant shall operate to extend this Lease, and in the event of
any such holding over. Tenant shall, in addition to all other obligations and
liabilities of Tenant hereunder (all of which shall remain in full force and
effect during the entire period of any such holding over) indemnify, defend, and
hold harmless Landlord from and against any and all claims for damages
(including consequential damages) by any other tenant to whom Landlord may have
leased all or part of the premises for a term to commence after the termination
of this Lease.
15.12 Inspection and Entry. Landlord and its representative shall have
the right to enter the Premises during any business day (and, in the case of
emergency, at all times) at all reasonable hours for the purpose of inspecting,
making repairs, altering or adding to the Premises or curing any default of
Tenant that Landlord elects to cure. Landlord shall not be liable to Tenant for
any expense, loss, or damage from any such entry.
15.13 Sale of Premises. Tenant shall permit Landlord, at any time
during this Lease, to place upon the Premises any usual or ordinary "For Sale"
or "For Lease" sign and during the last sixty (60) days of this Lease,
Landlord or its agents, may, during normal business hours, enter upon the
Premises and exhibit same to prospective purchasers and tenants.
15.14 Landlord's Performance of Tenant's Obligations. If Tenant fails
to perform any of its obligations hereunder, then in addition to the other
rights, remedies and recourses available to Landlord hereunder, at law or in
equity, and without waiving any of such rights remedies or recourse or the
existence of any default by Tenant, Landlord shall have the right (but not the
obligation) to perform such obligation of Tenant. Tenant shall reimburse
Landlord upon demand for all expenses (including, but not limited to, reasonable
attorneys' fees and a reasonable amount to reimburse Landlord for its overhead
and administration costs) incurred by Landlord in performing such obligations,
together with interest thereon from the date of expenditure or incurrence until
the date of repayment.
15.15 Relationship of the Parties. Nothing contained in this Lease
shall be deemed or construed as creating the relationship of principal and agent
or of partnership or joint venture between the parties hereto. It being
understood and agreed that neither the method of computing Rent, nor the manner
of constructing the Premises, nor any other provisions herein, nor any acts of
the parties shall be deemed to create any relationship between the parties other
than that of landlord and tenant.
15.16 Tenant's Pro Rata Share. The term "Tenant's pro rata share" of a
cost or expense shall mean the amount derived by multiplying such cost or
expense by a fraction, the numerator of which is the square foot area of
Tenant's Premises and the denominator of which is the gross leasable area of the
Project.
15.17 Exhibits; Entire and Binding Agreement. The Exhibits attached
hereto constitute a part of this Lease and references herein to this Lease
include references to such Exhibits. It is agreed and understood by Tenant that
no representations have been made to Tenant by Landlord other than those
contained herein or in the Exhibits hereto, and this Lease contains all of the
agreements between the parties and may not be modified in any manner other than
by agreement in writing, signed by both parties or their successors in interest.
The terms, covenants, and conditions contained herein shall inure to the benefit
of and be binding upon Landlord and Tenant and their respective successors and
assigns, except, as may be otherwise expressly provided in this Lease.
15.18 Effective Date. The effective date of this Lease shall be the
date recited herein.
15.19 Number and Gender. Whenever necessary for the proper construction
and interpretation of this Lease, a singular shall include the plural and vice
versa, and nay gender shall be deemed to read neuter, masculine, feminine, or
collective, as the case may be.
15.20 Captions. The Article and Section headings or titles appearing
herein are for convenience only and shall not be given any effect in construing
this Lease.
15.21 No Merger. There shall be no merger of this Lease or of the
leasehold estate hereby created with the fee estate in the Premises or any
portion thereof by reason of the fact that the same person may acquire or hold,
directly or indirectly, all or part or such fee estate and this Lease or the
leasehold estate hereby created or any interest in this Lease, and this Lease
shall not be terminated for any cause except as expressly provided herein.
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EXHIBITS ATTACHED
-----------------
EXHIBIT A: PREMISES
EXHIBIT B: LEGAL DESCRIPTION
EXHIBIT C" PROJECT RULES
EXHIBIT "D" PROTECTIVE COVENANTS
EXHIBIT "E" WORK LETTER AGREEMENT
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease on
the 8th day of Nov., 1999 in multiple counterparts, each such counterpart
constituting an original document.
LANDLORD: TENANT:
TEXAS TOWNHOUSE & CONDOMINIUM XXXX.XXX, INC.
OWNERS ASSOCIATION, INC. ------------------------------
BY: BY: XXXXXX XXXXXXXXX XX.
-------------------------------- ---------------------------
NAME: NAME: /s/ XXXXXX XXXXXXXXX XX.
------------------------------ -------------------------
TITLE: TITLE: C.O.O.
----------------------------- ------------------------
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EXHIBIT "C"
PROJECT RULES
1. Sidewalks, doorways, vestibules, halls, stairways, elevator lobbies, and
other similar common areas of the Project may not be used for storage of
materials or disposal of trash, obstructed by any tenant, or used by any
tenant for any purpose other than movement about the Project.
2. Plumbing fixtures may be used only for the purposes for which they are
designed, and no sweepings, rubbish, rags, or other unsuitable materials
may be disposed in them.
3. Movement in or out of the Project of furniture, office equipment, or any
other bulky or heavy materials is restricted to hours reasonable designated
by Landlord. Landlord will determine the method and routing of the
movement of such items to ensure the safety of persons and property, and
Tenant will be responsible for all associated costs and expenses. Written
notice of intent to move such items must be given to Landlord at least
twenty-four (24) hours before the time of the move.
4. All deliveries (other than of small hand-carried parcels) must be made
through the freight elevators. Passenger elevators are to be used only for
the movement of persons. Delivery vehicles are permitted only in areas
designated by Landlord for deliveries to the Project. No carts or dollies
are allowed through the main entrances of the Project or on passenger
elevators without the prior written consent of Landlord.
5. After-hours removal of hand-carried items must be accompanied by an
"Equipment Removal Form" or "Property Pass" provided by Landlord or by a
letter signed by an authorized representative of a tenant on the tenant's
letterhead. Each tenant must give Landlord a list of persons authorized to
sign the Equipment Removal Form or Property Pass.
6. Landlord must approve the proposed weight and location of any safes and
heavy furniture and equipment, which must in all cases stand on supporting
devices approved by Landlord in order to distribute the weight.
7. Corridor doors that lead to common areas of the Project (other than doors
opening into the elevator lobby on floors leased entirely to a tenant) must
be kept closed at all times.
8. Each tenant must cooperate with Landlord to keep its premises neat and
clean. No tenant may employ any person for the purpose of cleaning other
than the Project's cleaning and maintenance personnel.
9. No birds, fish, or other animals may be brought into or kept in, on, or
about the Project (except for seeing-eye dogs).
10. Each tenant will comply with all security procedures during business hours,
after hours, and on weekends. Landlord will give each tenant prior notice
of the security procedures.
11. Tenants must lock all office doors leading to corridors and turn out all
lights at the close of their working day.
12. No flammable or explosive fluids or materials may be kept or used within
the Project except in areas approved by Landlord, and each tenant must
comply with all applicable building and fire codes.
13. No machinery of any kind other than normal office equipment may be operated
by any tenant in its premises without the prior written consent of
Landlord.
14. Canvassing, peddling, soliciting, and distribution or handbills in the
Project (except for activities within a tenant's premises that involve only
the tenant's employees) is prohibited. Tenants will notify Landlord if such
activities occur.
15. Tenants must refer all contractors, contractors' representatives, and
installation technicians tendering any service to them to Landlord for
Landlord's supervision, approval, and control before the performance of any
contractual services. This provision applies to all work performed in the
Project (other than work under contract for installation or maintenance of
security equipment or banking equipment), including but not limited to,
installations of telephones, telegraph equipment, electrical devises and
attachments, and any and all installations of every nature affecting
floors, walls, woodwork, trim, windows, ceilings, equipment, and any other
portion of the Project.
16. Each tenant is responsible for removal of trash resulting from large
deliveries or move-ins. Such trash must be removed from the Project, and
Project facilities may not be used for dumping. Each tenant is responsible
for compliance with this rule by its contractors. If trash is not properly
removed, Landlord may cause it to be removed at the tenant's sole cost plus
a Project standard charge to be determined by Landlord to cover Landlord's
administrative costs.
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17. Tenants may not install, leave or store equipment, supplies, furniture, or
trash outside their premises.
18. Each tenant must provide Landlord with names and telephone numbers of
individuals who should be contacted in an emergency.
19. Tenants must comply with the Project's life safety program established by
Landlord, including without limitation, fire drills, training programs, and
fire warden staffing procedures, and must use reasonable efforts to cause
all tenant employees, invitees, and guests to comply with such program.
20. If a tenant requires telegraphic, telephonic, annunciator, or other
communication service, Landlord will direct the electricians where and how
wires are to be introduced and placed, and none may be introduced or placed
except as Landlord may approve. Electrical current may not be used for
space heaters, cooking, or heating devices or similar appliances without
Landlord's prior written permission.
21. No portion of any tenant's premises may be used or occupied as sleeping or
lodging quarters, nor may personnel occupancy loads exceed limits
reasonable established by Landlord for the Project.
22. All communications to Landlord in connection with these rules may be
addressed to Landlord's property manager, and any approvals required of
Landlord under these rules may be obtained from or through Landlord's
property manager.
If there is a conflict between any other provision of the Lease and these
Project Rules, the other provisions of the Lease control.
