LEASE AGREEMENT
The Atrium Building
00000 Xxxxxxxxx Xxxxx
XXXXXXXX, XXXXX
Lessor:
HSO CORPORATE DRIVE LIMITED PARTNERSHIP
Lessee:
Enerteck Chemical Corp.
LEASE DATE: Feb 1, 2001
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TABLE OF CONTENTS
Section 1. Premises.....................................................4
Section 2. Term.........................................................4
Section 3. Base Rental..................................................4
Section 4. Adjustment to Base Rental....................................5
Section 5. Lessee's Occupancy...........................................6
Section 6. Services to be Furnished by Lessor...........................6
Section 7. Keys, Locks and Access Cards.................................6
Section 8. Signage and Lobby Directory..................................7
Section 9. Relocation of Lessee.........................................7
Section 10. Maintenance and Repairs by Lessor...........................7
Section 11. Repairs by Lessee...........................................7
Section 12. Care of the Premises........................................7
Section 13. Parking.....................................................7
Section 14. Lessor's Exclusive Covenant.................................7
Section 15. Holding Over................................................8
Section 16. Alterations, Additions, and Improvements....................8
Section 17. Legal Use and Violations of Insurance Coverage..............8
Section 18. Laws and Regulations; Building Rules........................8
Section 19. Nuisance....................................................8
Section 20. Entry by Lessor.............................................8
Section 21. Assignment and Subletting...................................8
Section 22. Transfer of Lessor..........................................9
Section 23. Subordination to Mortgage...................................9
Section 24. Mechanic's Lien.............................................9
Section 25. Estoppel Certificate.......................................10
Section 26. Events of Default..........................................10
Section 27: Lessor's Right to Relet....................................12
Section 28. Lien for Rent..............................................12
Section 29. Attorney's Fees............................................13
Section 30. No Implied Waiver..........................................13
Section 31. Casualty Insurance.........................................13
Section 32. Liability Insurance........................................13
Section 33. Indemnity..................................................13
Section 34. Rent Tax...................................................13
Section 35. Waiver of Claims and Subrogation...........................14
Section 36. Casualty Damage............................................14
Section 37. Condemnation...............................................14
Section 38. Notices and Cure...........................................14
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Section 39. Personal Liability.........................................15
Section 40. Notice.....................................................15
Section 41. Surrender..................................................15
Section 42. Captions...................................................15
Section 43. Entirety and Amendments....................................15
Section 44. Severability...............................................16
Section 45. Binding Effect.............................................16
Section 46. Number and Gender of Words.................................16
Section 47. Recordation................................................16
Section 48. Commissions................................................16
Section 49. Confidentiality............................................16
Section 50. Governing Law..............................................16
Section 51. Force Majeure..............................................16
Section 52. Relationship of Parties....................................16
Section 53. Security Deposit...........................................16
Section 54. Financial Information Of Lessee............................16
Section 55. ADA........................................................17
Section 56. Hazardous Materials........................................17
Section 57. No Lessor Obligation to Provide Security...................17
Section 58. Exhibits...................................................18
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), made and entered into on this
1st___ day of February, 2001, between HSO Corporate Drive Limited Partnership
("Lessor"), and Enerteck Chemical Corp. ("Lessee").
W I T N E S S E T H:
Section 1. Premises
Subject to and upon the terms and conditions hereinafter set
forth, and each in consideration of the covenants and obligations of the other
hereunder, Lessor does hereby lease and demise to Lessee, and Lessee does hereby
lease from Lessor, those certain premises (the "Premises") in the building known
as The Atrium Building, 10701 Corporate Drive (the "Building") constructed on
the real property situated in the City of Xxxxxxxx, Fort Bend County, TEXAS,
more particularly described on EXHIBIT A attached hereto and made a part hereof
for all purposes (the "Property"). The Premises shall mean that (those) certain
space(s) on the Second (2nd) floor-(s) of the Building being Suite-s 293 and
comprising 557 square feet of Net Rentable Area, as more specifically identified
in EXHIBIT B attached hereto. The term "Net Rentable Area" shall be defined as
1.17% of multi-tenant usable area whether or not the floors are actually
utilized for multiple tenant occupancy. Usable area shall be computed by
measuring to the inside finish of permanent outer building walls, or the glass
line if at least 50% of the outer building wall is glass, to the outer side of
corridors and/or other permanent partitions, and to the center of partitions
that separate the Premises from adjoining usable areas. No deduction shall be
made for columns and projections necessary to the Building. The Net Rentable
Area in the Building shall mean 108,490 square feet.
Section 2. Term
(a) Subject to and upon the terms and conditions set forth
herein, or in any Rider or exhibit hereto, this Lease shall Continue in force
for a term of Thirty Six Months (36/Mnths.) beginning on the 1st day of
February, 2001, ("Commencement Date") and ending on the 31st day of January,
2004, unless sooner terminated or extended to a later date under any other term
or provision hereof.
(b) If for any reason the Premises are not ready for occupancy
by Lessee on the commencement date specified in Paragraph 2(a) above, Lessor
shall not be liable or responsible for any claims, damages, or liabilities in
connection therewith or by reason thereof, and this Lease and the obligations of
Lessee shall nonetheless commence and continue in full force and effect;
provided, however, if the Premises are not ready for occupancy for any reason
other than omission, delay, or default on the part of Lessee or anyone acting
under or for Lessee, the rent herein provided shall not commence until the
Premises are ready for occupancy by Lessee. Such abatement of rent shall
constitute full settlement of all claims that Lessee might otherwise have
against Lessor by reason of the Premises not being ready for occupancy by Lessee
on the date of the commencement of the term hereof. Should the term of this
Lease commence on a date other than that specified in Paragraph 2(a) above,
Lessee will, at the request of Lessor, execute an amendment to this Lease on a
form provided by Lessor specifying the beginning date of the term of this Lease.
In such event, rental under this Lease shall not commence until such revised
commencement date, and the stated term of this Lease shall thereupon commence,
and the expiration date shall be extended so as to give effect to the full
stated term. If work is required of the Landlord pursuant to EXHIBIT C , the
Premises shall be deemed to be ready for occupancy on the first to occur of (i)
the date that there is delivered to Lessee a certificate of substantial
completion from Lessor's architect, which certificate shall be binding and
conclusive upon Lessee in the absence of bad faith and collusion on the part of
or between Lessor and Lessor's architect, or (ii) upon the date on which Lessee
begins occupancy of the Premises.
Section 3. Base Rental
(a) Lessee hereby agrees to pay to Lessor, without setoff or
deduction whatsoever, in accordance with the Schedule of Base Rent attached
hereto as EXHIBIT D ("Base Rental). Lessee shall also pay, as additional rent
[or Forecast Additional Rent ], all such other sums of money as shall become due
from and payable by Lessee to Lessor under this Lease (Base Rental, any
adjustment thereto pursuant to Section 4 hereof, and all such other sums of
money due from and payable by Lessee pursuant to this Lease are sometimes
hereinafter collectively called "rent"), for the nonpayment of which Lessor
shall be entitled to exercise all such rights and remedies as are herein
provided in the case of the nonpayment of Base Rental. The annual Base Rental,
together with any adjustment or increase thereto then in effect, shall be due
and payable in advance in twelve (12) equal installments on the first 1st day of
each calendar month during the term of this Lease, and Lessee hereby agrees so
to pay such Base Rental and any adjustment or increase thereto to Lessor at
Lessor's address provided herein (or such other address as may be designated by
Lessor in writing from time to time) monthly, in advance, and without demand. If
the term of this Lease commences on a day other than first (1st) day of a month
or terminates on a day other than the last day of a month, then the installments
of Base Rental and any adjustments thereto for such month or months shall be
prorated, and the installment or installments so prorated shall be paid in
advance.
(b) In the event any installment of the Base Rental, or any
other sums which may become owing by Lessee to Lessor under the provisions
hereof are not received within Five (5) days after the due date thereof (without
in any way implying Lessor's consent to such late payment), Lessee, to the
extent permitted by law, agrees to pay, in addition to said installment of the
Base Rental or such other sums owed, a late payment charge equal to ten percent
(10%) (Late Fee) of the installment of the Base Rental or such other sums owed.
Notwithstanding the foregoing, the foregoing late charges shall not apply to any
sums which have been advanced by Lessor to or for the benefit of Lessee pursuant
to the provisions of this Lease, it being understood that such sums shall bear
interest, which Lessee hereby agrees to pay to Lessor, at the lesser of fifteen
percent (15%) per annum or the maximum rate of interest permitted by law to be
charged Lessee for the use or forbearance of such money.
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Section 4. Adjustment to Base Rental
(a) For purposes of ascertaining the adjustment to Base
Rental, the following terms shall have the following meanings:
(i) "Base Amount" (Base Year Expense Stop) shall mean the Basic Cost to
operate the Building for the Calendar Year 2001 (Base Year );
(ii) "Basic Costs" shall mean all Building and Complex Operating
Expenses determined as if the building is fully occupied;
(iii)"Complex" shall mean the Building and any other land or
improvements, including related parking facilities, now or hereafter
operated, in whole or in part, in common with the Building;
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(iv) "Estimated Basic Costs" shall mean a good faith projection of
Basic Costs for the forthcoming calendar year;
(v) "Lessee's Share" shall mean the ratio determined by dividing Net
Rentable Area in the Premises by Net Rentable Area in the Building.
Lessee is deemed to occupy 0.005% percent ("Proportionate Share) of the
Net Rentable area of the Building;
(vi) "Operating Expenses" shall mean all expenses, costs, and
disbursements (but not replacement of capital investment items nor
specific costs especially billed to and paid by specific tenants) of
every kind and nature which Lessor shall pay or become obligated to pay
because of or in connection with the ownership and operation of the
Building and/or Complex, including, but not limited to, the following:
(A) Wages, salaries, and fees of all personnel engaged in the
operation, maintenance, leasing (but not to include third party leasing
commissions), or security of the Building and/or Complex and personnel
who may provide traffic control relating to ingress and egress from the
parking areas for the Building to adjacent streets. All taxes,
insurance, and benefits relating to employees providing these services
shall also be included;
(B) All supplies and materials used in the operation and
maintenance of the Building and/or Complex;
(C) Costs of all utilities for the Building and/or Complex,
including but not limited to, the cost of water and power, heating,
lighting, air conditioning, and ventilation;
(D) Cost of all maintenance, janitorial, and service
agreements for the Building and/or Complex and the equipment therein,
including but not limited to, alarm service, window cleaning, and
elevator maintenance;
(E) Cost of all insurance relating to the Building and/or
Complex, including but not limited to, the cost of casualty and
liability insurance and Lessor's personal property used in connection
therewith;
(F) All taxes, assessments, and other governmental charges,
whether federal, state, county, or municipal, and whether they be by
taxing districts or authorities presently taxing the Premises or by
others, subsequently created or otherwise, and any other taxes and
assessments attributable to the Building and/or Complex or its
operation. Lessee will be responsible for taxes on its personal
property and on the value of leasehold improvements to the extent that
same exceeds standard Building allowances;
(G) Cost of labor and materials in performing repairs and
general maintenance in connection with the Building and/or Complex,
including without limitation, Lessor's share of all maintenance for the
access road to the Building and Lessor's share of maintenance of the
underground storm drainage system, but excluding capital repairs or
replacement and general maintenance paid by proceeds of insurance or by
Lessee or other third parties, and alterations attributable solely to
tenants of the Building other than Lessee;
(H) Amortization of the cost of installation of capital
investment items which are primarily for the purpose of reducing
operating costs of the Building and/or Complex (e.g. energy saving
devices) or which may be required by governmental authority. All such
costs shall be amortized over the reasonable life of the capital
investment items by an additional charge to be added to rent and paid
by Lessee as additional rent, with the reasonable life and amortization
schedule being determined by Lessor in accordance with generally
accepted accounting principles, but in no event to extend beyond the
reasonable life of the Building;
(I) Lessor's accounting, auditing, and legal expenses
applicable to the Building and/or Complex;
(a) Such Operating Expenses shall be computed on the accrual
basis. All Operating Expenses shall be determined in accordance with generally
accepted accounting principles which shall be consistently applied.
(b) For each calendar year during the term of this Lease, Base
Rental shall be adjusted upward by the amount of Lessee's Share of the increase,
if any, of Basic Costs over the Base Amount. Prior to January 1, 2002 and
January 1st of each calendar year during the term of this Lease, or as soon as
practicable thereafter, Lessor shall provide Lessee with Estimated Basic Costs
for the calendar year ahead and Lessee's Share of the increase of Estimated
Basic Costs over the Base Amount; thereafter, Lessee's Share of the increase of
Estimated Basic Costs over the Base Amount shall be paid in twelve equal monthly
installments together with the monthly installment of rental due hereunder.
However, for the first calendar year during which the Lease is in effect, if the
term of this Lease commences on a day other than January 1, , as soon as
practicable thereafter, Lessor shall provide Lessee with Estimated Basic Costs
for that calendar year and Lessee's Share of the increase of such Estimated
Basic Costs over the Base Amount. Notwithstanding anything to the contrary
contained in this Lease, if the Building is less than ninety-five percent (95%)
occupied (on average) during any calendar year Operating Expenses for that year
shall be increased to an amount that Lessor in good faith projects would have
been incurred by Lessor for Operating Expenses for that year had the Building
been ninety-five percent (95%) occupied during that year (as an average. Lessee
shall pay in equal monthly installments together with the monthly installment of
rental due hereunder Lessee's Share of the increase of Estimated Basic Costs
over the Base Amount prorated on the basis which the number of days from the
commencement of the Lease to and including December 31 bears to 365.
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(c) By June 1, 2002 and by June 1st of each calendar year
thereafter during the term of this Lease, or as soon thereafter as practicable,
Lessor shall furnish to Lessee a statement of Basic Costs for the previous
calendar year. A lump sum payment (which payment shall be deemed a payment of
rent hereunder for all purposes) will be made from Lessee to Lessor, or, as the
case may be, from Lessor to Lessee within thirty (30) days after the delivery of
such statement equal to the difference between Lessee's Share of the increase of
actual Basic Costs over the Base Amount and Lessee's Share of the increase of
Estimated Basic Costs over the Base Amount for the previous calendar year. The
effect of this reconciliation payment is that Lessee will pay during the term of
this Lease its share of Basic Cost increases over the original $ (Please see
Section 4(a)(i), above) /square foot Base Amount and no more. The failure of
Landlord to require payment of Tenant's Pro Rata Share of any Excess or
Landlord's failure to adjust Additional Rent for any calendar year shall not
prejudice Landlord's right to receive such payment nor constitute a waiver of
Landlord's right to require such payment or adjustment at any later date, nor
shall any delay in demanding or collecting such charges be deemed a waiver
thereof.
(d) Lessor shall maintain records concerning Estimated and
Actual Operating Costs for twelve (12) months following the period covered by
the statement or statements furnished Lessee, after which Lessor may dispose of
such records. Lessee may at its sole cost and expense inspect Lessors records
during Lessors normal business hours upon first furnishing Landlord fifteen (15)
days advance written notice. Lessee shall, however be entitled to only one such
inspection each calendar year. All of the information obtained through the
Lessee's audit with respect to financial matters (including, without
limitations, costs, expenses, income) and any other matters pertaining to the
Lessor and/or the building as well as any compromise, settlement, or adjustment
reached between Lessor and Lessee relative to the results of the audit shall be
held in strict confidence by the Lessee and its officers, agents, and employees;
and Lessee shall cause its auditor and any of its officers, agents, and
employees to be similarly bound. As a condition precedent to Lessee's exercise
of its right to audit, Lessee must deliver to Lessor a signed covenant from the
auditor acknowledging that all of the results of such audit as well as any
compromise, settlement, or adjustment reached between Lessor and Lessee shall be
held in strict confidence and shall not be revealed in any manner to any person
except upon the prior written consent of the Lessor, which consent may be
withheld in Lessor's sole discretion, or if required pursuant to any litigation
between Lessor and Lessee materially related to the facts disclosed by such
audit or if required by law. Lessor shall have all rights allowed by law or
equity if Lessee, Its Officers, agents, or employees and/or the auditor violate
the terms of this provision, including, without limitation, the right to
terminate this Lease or the right to terminate Lessee's right to audit in the
future pursuant to this Clause. Lessee shall indemnify, defend upon request, and
hold Lessor harmless from and against all costs, damage, claims, liabilities,
expenses, losses, court costs, and attorney's fees suffered by or claimed
against Lessor, based in whole or in part upon the breach of this Paragraph by
Lessee and/or its auditor; and shall cause its auditor to be similarly bound.
The obligations within the Paragraph shall survive the expiration or earlier
termination of the lease.
(e) If this Lease shall terminate on a day other than the last
day of a calendar year, the amount of any adjustment between Estimated Basic
Costs and actual Basic Costs with respect to the calendar year in which such
termination occurs shall be prorated on the basis which the number of days from
the commencement of such calendar year to an including such termination date
bears to 365; and any amount payable by Lessor to Lessee or Lessee to Lessor
with respect to such adjustment shall be payable within thirty (30) days after
delivery by Lessor to Lessee of the statement of actual Basic Costs with respect
to such calendar year.
Section 5. Lessee's Occupancy
Lessee shall occupy the Premises and conduct its normal
business operations therefrom and the Premises shall be used by Lessee solely
for standard office purposes as offices for the following type of business:
Chemical Products and for no other purpose or use.
Section 6. Services to be Furnished by Lessor
Lessor shall furnish to Lessee while occupying the Premises
the following services:
(a) hot and cold water at those points of supply provided for
general use of the tenants in the Building;
(b) heated and refrigerated air conditioning in season, during
normal business hours for the Building, 6:00 A.M. to 6:00 P.M. weekdays and 8:00
A.M. to 1:00 P.M. on Saturdays (exclusive of Sundays and State and National
Holidays) and at such temperatures and in such amounts as are considered by
Lessor to be standard. Such service at times other than normal business hours
shall be optional on the part of Lessor; provided that upon twenty-four hour
advance notice. Such service will be provided to Lessee at Lessee's expense;
(c) elevator service in common with other tenants for ingress
and egress to and from the Premises;
(d) janitorial service as may in the judgment of the Lessor be
reasonably required;
(e) electric current for normal office usage in the Premises
and electric lighting service for all public areas and special service areas of
the Building in the manner and to the extent considered by Lessor to be
standard; and
(f) access to the Premises at all times through keys, or any
other devise used in lieu of keys, to the front and rear doors of the Building
for Lessee or, if Lessee is a corporation, a reasonable and limited number of
designated officers of Lessee.
Failure by Lessor to any extent to furnish, or any stoppage
of, these defined services, and resulting from causes beyond the control of
Lessor or from any other cause, shall not render Lessor liable in any respect
for damages to either person or property, nor be construed as an eviction of
Lessee, nor work an abatement of rent, nor relieve Lessee from fulfillment of
any covenant or agreement hereof. Should any equipment or machinery break down,
or for any cause cease to function properly, Lessor shall use reasonable
diligence to repair the same promptly. Lessee shall have no claim for rebate of
rent or damages on account of any interruptions in service occasioned thereby or
resulting therefrom.
Section 7. Keys, Locks and Access Cards
Lessor shall furnish Lessee One (1) key and One (1) access
card per designated employee. Additional keys will be furnished at a charge by
Lessor on receipt of an order signed by Lessee or Lessee's authorized
representative. All such keys shall remain the property of Lessor. Any lost,
stolen or damaged cards and keys will be replaced at Lessors then current charge
per card or key. No additional
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locks shall be allowed on any door of the Leased Premises without Lessor's
written permission, and Lessee shall not make or permit to be made any duplicate
keys, except those furnished by Lessor. Upon termination of this Lease, Lessee
shall surrender to Lessor all keys to the Leased Premises and give to Lessor the
explanation of the combination of all locks for safes, safe cabinets, and vault
doors, if any, in the Leased Premises.
Section 8. Signage and Lobby Directory
(a) Lessor shall provide and install a Lessee identification
sign on the entry door to the Lease Premises. All letters and numerals shall be
in the standard graphics that are used throughout the Building. Only such
standard graphics may be used in any public area or openings to public areas.
The cost of any changes to such suite sign will be charged to Lessee.
(b) Lessee shall not place signs or any other item on the
Premises which may be visible from outside the Building or make any
modifications to the identification sign referenced in (a) above, without first
obtaining the written consent of Lessor in each such instance.
(c) Lessor agrees to identify Lessee on the Lobby Directory
Board. The cost of any changes requested by Lessee to such directory will be
charged to Lessee.
Section 9. Relocation of Lessee
Lessor reserves the right, at its option, to transfer and
remove Lessee from the Premises to any other available space in the Building of
substantially equal size, and area, and equivalent Base Rental per square foot.
Lessor shall bear the expense of said removal as well as the expense of any
renovations or alterations necessary to make the new space substantially conform
in layout and appointment with the original Premises.
Section 10. Maintenance and Repairs by Lessor
Unless otherwise stipulated herein, Lessor shall be required
to maintain and repair only the structural portions of the Building, both
exterior and interior, including the heating, ventilating, and air conditioning
systems and equipment, the plumbing and electrical systems and equipment, the
public foyers and lobbies, the corridors, parking areas, elevators, stairwells
and restrooms and all other areas serving more than one tenant of the Building;
provided, however, that interior partitioning walls, carpeting and other
portions of the Premises which might otherwise be considered building standard
items shall not be the obligations of Lessor. Such building standard items and
any other leasehold improvements of Lessee will, at Lessee's written request,
and upon Lessor's written approval, be maintained by Lessor at Lessee's expense,
at a cost or charge equal to all costs incurred in such maintenance plus an
additional 15% charge to cover overhead, which costs and charges shall be
payable by Lessee to Lessor promptly upon being billed therefor. In no event
will Lessor be required to make any repairs to the aforementioned structural
portions of the Building, if such repairs are occasioned by an act of
negligence, or misconduct by the Lessee, its agents, employees, subtenants,
licensees or concessionaires.
Section 11. Repairs by Lessee
Lessee covenants and agrees with Lessor, at Lessee's own cost
and expense, to repair or replace any damage or injury done to the Premises,
Building, or any part thereof, or to the Complex, caused by Lessee or Lessee's
agents, employees, invitees, or visitors, and such repairs shall restore the
Premises, Building or Complex, as the case may be, to the same or as good a
condition as it was prior to such injury or damage, and shall be effected in
compliance with all building and fire codes and other applicable laws and
regulations; provided, however, if Lessee fails to make such repairs or
replacements promptly, Lessor may, at its option, make such repairs or
replacements, and Lessee shall repay the cost thereof, plus an additional 15%
charge to cover overhead, to Lessor on demand.
Section 12. Care of the Premises
Lessee covenants and agrees with Lessor to take good care of
the Premises and Building, and the fixtures and appurtenances therein and, at
Lessee's expense, to make all nonstructural repairs thereto as and when needed
to preserve them in good order and condition except for ordinary wear and tear.
Lessee shall not commit or allow any waste or damage to be committed on any
portion of the Premises, and at the termination of this Lease, by lapse of time
or otherwise, shall deliver up the Premises to Lessor in as good a condition as
at the date of the commencement of the term of this Lease, ordinary wear and
tear excepted, and upon any termination of this Lease, Lessor shall have the
right to re-enter and resume possession of the Premises.
Section 13. Parking
Lessee shall have the non-exclusive use of the Building
surface parking lot for its customers, invitees, and visitors automobiles,
subject to rules and regulations for the use thereof as prescribed from time to
time by Lessor. During the initial Term of this Lease, Lessee shall be permitted
to use Two (2) unreserved vehicle parking spaces in the Buildings surface lot at
no charge allowing the parking of Two (2) automobiles by Lessee. Lessee agrees
to provide and continually update the name and make, model, color and automobile
license numbers of each employee vehicle parked in the Building parking
facility. Lessee agrees to cooperate with any parking identification program
including compelling its employees to display a "parking sticker in a prominent
location as designated by Lessor. Lessor shall have sole control over the
parking of all vehicles (including but not limited to cars, trucks, recreational
vehicles, trailers, bicycles and motorcycles) and shall designate parking areas
and building service areas. A copy of the current parking rules and regulations
is attached to this lease as EXHIBIT E. Lessee agrees to provide and continually
update the name and automobile license numbers of each employee who will be
parking in the Buildings Garage.
Section 14. Lessor"s Exclusive Covenant.
Upon payment by Lessee of the rents provided for in this
Lease, and upon the observance and performance of all the covenants, terms and
conditions on Lessees part to be observed and performed, Lessee shall, subject
to the terms and provisions of this Lease, peaceably and quietly hold and enjoy
the Leased Premises for the term hereby demised, only, however, against (i)
interference therewith by the affirmative acts of Lessor, its employees or
agents, and (ii) interference therewith by any person who may claim superior
title
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to the Leased Premises by, through or under Lessor, but not otherwise. Lessor
shall under no circumstances be held responsible for restriction or disruption
of access to the Building from public streets caused by construction work or
other actions taken by or on behalf of governmental authorities, or for actions
taken by other tenants (their employees, agents, visitors, contractors or
invitees), or any other cause not entirely within Lessors direct control, and
same shall not constitute a constructive eviction of Lessee or give rise to any
right or remedy of Lessee against Lessor of any nature or kind. This covenant of
quiet enjoyment is in lieu of any covenant of quiet enjoyment provided or
implied by law, and Lessee expressly waives any such other covenant of quiet
enjoyment to the extent broader than the covenant contained in this Section 14.
Section 15. Holding Over
In the event of holding over by Lessee without the written
consent of Lessor, after the expiration or other termination of this Lease and
without execution of a new Lease, Lessee shall, throughout the entire holdover
period, pay rent equal to 150% of the Base Rental, as adjusted herein and
additional rent which would have been applicable had the term of this Lease
continued through the period of such holding over by Lessee. No holding over by
Lessee after the expiration of the term of this Lease shall be construed to
extend the term of this Lease; and in the event of any unauthorized holding
over, Lessee shall indemnify Lessor against all claims for damages by any other
Lessee or prospective Lessee to whom Lessor may have leased all or any part of
the Premises effective before or after the expiration of the term of this Lease,
resulting from delay by Lessee in delivering possession of all or any part of
the Premises. Any holding over with the written consent of Lessor shall
thereafter constitute a lease from month-to-month, under the terms and
provisions of this Lease to the extent applicable to a tenancy from
month-to-month. Any holding over without Lessors prior written consent shall
constitute Lessee a tenant-at-sufferance of Lessor, subject to immediate
eviction.
Section 16. Alterations, Additions, and Improvements
Lessee covenants and agrees with Lessor not to permit the
Premises to be used for any purpose other than that stated in Section 5 hereof
or make or allow to be made any alterations or physical additions in or to the
Premises without first obtaining the written consent of Lessor in each such
instance. All alterations, structural or non structural, must have Lessor's
consent which consent may be withheld in Lessor's sole discretion. Lessee shall
be responsible for any lien filed against the Premises or any portion of the
Building for work claimed to have been done for, or materials claimed to have
been furnished to Lessee. Any and all such alterations, physical additions, or
improvements, when made to the Premises by Lessee, shall be at Lessee's expense
and shall at once become the property of Lessor and shall be surrendered to
Lessor upon termination of this Lease by lapse of time or otherwise unless
Lessor requests their removal, in which event Lessee shall remove the same and
restore the Premises to their original condition at Lessee's expense; provided,
however, this clause shall not apply to the movable fixtures, office equipment,
and other personal property owned by Lessee. All construction work done by
Lessee within the Premises shall be performed in a good and workmanlike manner,
in compliance with all governmental requirements, and in such manner as to cause
a minimum of interference with other construction in progress and with the
transaction of business in the area adjacent to the Premises. Lessee agrees to
indemnify Lessor and hold Lessor harmless against any loss, liability or damage
resulting from such work, and Lessee shall, if requested by Lessor, furnish bond
or other security satisfactory to Lessor against any such loss, liability or
damage.
Section 17. Legal Use and Violations of Insurance Coverage
Lessee covenants and agrees with Lessor not to occupy or use,
or permit any portion of the Premises to be occupied or used, for any business
or purpose which is unlawful, disreputable, or deemed to be extra-hazardous on
account of fire, or permit anything to be done which would in any way invalidate
or increase the rate of fire, liability, or any other insurance coverage on the
Building and/or its contents. All property kept, stored or maintained within the
Premises by Lessee shall be at Lessee's sole risk.
Section 18. Laws and Regulations; Building Rules
Lessee covenants and agrees with Lessor to comply with all
laws, ordinances, rules, and regulations of any state, federal, municipal, or
other government or governmental agency having jurisdiction of the Premises that
relate to the use, condition, or occupancy of the Premises. Lessee will comply
with the rules of the Building adopted and altered by Lessor from time to time
for the safety, care, and cleanliness of the Premises and Building and for the
preservation of good order therein, all changes to which will be sent by Lessor
to Lessee in writing and shall be thereafter carried out and observed by Lessee.
Lessor shall not be responsible to Lessee for the non-performance by any other
Lessee or occupant of the Building of any said rules and regulations. In the
event of a conflict or inconsistency between the provisions of this Lease and
any such rules, the provisions of this Lease shall control. See EXHIBIT F.
Section 19. Nuisance
Lessee covenants and agrees with Lessor to conduct its
business and control its agents, employees, invites, and visitors in such manner
as not to create any nuisance, or interfere with, annoy, or disturb any other
tenant or Lessor in its operation of the Building.
Section 20. Entry by Lessor
Lessee covenants and agrees with Lessor to permit Lessor or
its agents or representatives to enter into and upon any part of the Premises at
all reasonable hours (and in emergencies at all times) to inspect the same, or
to show the Premises to prospective purchasers, lessees, mortgagees, or
insurers, to clean or make repairs, alterations, or additions thereto, as Lessor
may deem necessary or desirable, and Lessee shall not be entitled to any
abatement or reduction of rent by reason thereof.
Section 21. Assignment and Subletting
(a) Lessee shall not, without the prior written consent of
Lessor, (i) assign or in any manner transfer Lessee's interest in this Lease or
any estate or interest therein, or (ii) permit any assignment or transfer of
this Lease or any estate or interest therein by operation of law, merger or
consolidation, or (iii) sublet the Premises or any part thereof, or (iv) grant
any license, concession, or other right of occupancy of any portion of the
Premises. Consent by Lessor to one or more assignments or subletting shall not
operate as a waiver of Lessor's rights as to any subsequent assignments and
subletting. Notwithstanding any approved assignment or subletting, Lessee shall
at all times remain fully responsible and liable for the payment of the rent
herein specified and for compliance with all of Lessee's other obligations under
this Lease and in the event of any assignment, by operation of law, merger,
consolidation or otherwise, any assignee shall assume and agree to perform
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all obligations of Lessee hereunder. If an event of default, as hereinafter
defined, should occur while the Premises or any part thereof are then assigned
or sublet, Lessor, in addition to any other remedies herein provided or provided
by law, may at its option, collect directly from such assignee or sublessee all
rents becoming due to Lessee under such assignment or sublease, and apply such
rent against any sums due to Lessor by Lessee hereunder, and Lessee hereby
authorizes and directs any such assignee or sublessee to make such payments of
rent directly to Lessor upon receipt of notice from Lessor. No direct collection
by Lessor from any such assignee or sublessee shall be construed to constitute a
novation or a release of Lessee from the further performance of its obligations
hereunder. Receipt by Lessor of rent from any assignee, sublessee, or occupant
or the Premises shall not be deemed a waiver of the covenant contained in this
Lease against assignment and subletting or a release of Lessee under this Lease.
Lessee shall not mortgage, pledge, or otherwise encumber its interest in this
Lease or in the Premises. Any attempted assignment or sublease by Lessee in
violation of the terms and covenants of this paragraph shall be void, or (v)
cause, allow or permit to occur any transfer or assignment of the ownership
interest in the entity comprising the Lessee, if the transfer or assignment
would either (i) in the aggregate with other transfers of ownership interest
which have taken place since the execution of this Lease, result in more than
twenty percent (20%) of the ownership interests in the entity comprising Lessee
to have been transferred outside the original ownership group since the date of
execution of this Lease, or (ii) resulted in the transfer of any interest as a
general partner in a general or limited partnership or as a joint venturer in
any joint venture; provided, however, that if the entity that comprises Lessee
"goes public (in a securities offering registered under applicable securities
laws) during the term of this lease, the same will not be deemed an assignment
in violation of this Section, nor shall any transfer or sale of publicly traded
stock of any publicly traded entity comprising Lessee ever be deemed an
impermissible assignment hereunder.
(b) In the event Lessee desires Lessor's consent to an
assignment of the Lease or subletting of all or a part of the Premises and as a
condition to the granting of such consent, Lessee shall submit to Lessor in
writing the name of the proposed assignee or sublessee, the proposed
commencement date of such assignment or subletting, the nature and character of
the business of the proposed assignee or sublessee and such financial
information as shall be reasonably necessary for Lessor to determine the
credit-worthiness of such proposed assignee or sublessee. Lessor shall have the
option in its sole and absolute discretion (to be exercised within thirty (30)
days from submission of Lessee's written request), (i) to refuse to consent to
Lessee's assignment or subleasing of such space and to continue this Lease in
full force and effect as to the entire Premises; or (ii) to permit Lessee to
assign or sublet such space; subject, however, to provision satisfactory to
Lessor for payment to Lessor of any consideration to be paid by such proposed
assignee or sublessee in connection with such assignment or subletting in excess
of Base Rental otherwise payable by Lessee and for payment to Lessor of any lump
sum payment in connection with such assignment or subletting; or (iii) terminate
this Lease as to the portion of the Premises requested to be sublet (or the
entire Premises in the case of a request for permission to assign), thereby
releasing Tenant from any further obligations with respect to the terminated
space from and after the effective date of the termination, and lease the
portion of the Premises so recaptured by Lessor to any party Lessor desires
(including any proposed assignee or sublessee identified in Lessees request for
consent). If Lessor should fail to notify Lessee in writing of its election as
described above within such thirty (30) day period, Lessor shall be deemed to
have elected option (i) above.
(c) Lessor's acceptance of any name for listing on the
Building Directory (-ies) will not be deemed, nor will it substitute for,
Lessor's consent, as required by this Lease, to any sublease, assignment, or
other occupancy of the demised premises.
Section 22. Transfer of Lessor
Lessor shall have the right to transfer and assign, in whole
or in part, all its rights and obligations hereunder and in the Building and
property referred to herein, and provided Lessor's transferee assumes the duties
and obligations of Lessor arising from and after the date of any such transfer
or assignment, upon such transfer or assignment, Lessor shall be released from
any further obligations hereunder, and Lessee agrees to look solely to such
successor in interest of Lessor for the performance of such obligations.
Section 23. Subordination to Mortgage
This Lease shall be subject and subordinate to any mortgage or
deed of trust which may hereafter encumber the Building, and to all renewals,
modifications, consolidations, replacements, and extensions thereof, which
contain (or which are included in a separate agreement) provisions to the effect
that if there should be a foreclosure or sale under power under such mortgage or
deed of trust, Lessee shall not be made a party defendant thereto. Lessor shall
be liable to Lessee only for Lessees actual, direct, but not consequential
damages for any breach by Lessor or its obligations hereunder. This clause shall
be self-operative and no further instrument of subordination need be required by
any mortgagee. In confirmation of such subordination, however, Lessee shall, at
Lessor's request, execute promptly any certificate or instrument evidencing such
subordination that Lessor may request. Lessee hereby constitutes and appoints
Lessor the Lessee's attorney-in-fact to execute any such certificate or
instrument for and on behalf of Lessee. In the event of the enforcement by the
trustee or the beneficiary under any such mortgage or deed of trust of the
remedies provided for by law or by such mortgage or deed of trust, Lessee will,
upon request of any person or party succeeding to the interest of Lessor as a
result of such enforcement, automatically become the Lessee of such successor in
interest without change in the terms or other provisions of this Lease;
provided, however, that such successor in interest shall not be bound by (a) any
payment of rent or additional rent for more than one (1) month in advance,
except prepayment in the nature of security for the performance by Lessee of its
obligations under this Lease, or (b) any amendment or modification of this Lease
made without the written consent of such trustee or such beneficiary or such
successor in interest. Upon request by such successor in interest, Lessee shall
execute and deliver an instrument or instruments confirming the attornment
provided for herein.
Section 24. Mechanic's Lien
Lessee will not permit any mechanic's lien or liens to be
placed upon the Premises or improvements thereon or the Building during the term
hereof caused by or resulting from any work performed, materials furnished, or
obligation incurred by or at the request of Lessee, and nothing in this Lease
contained shall be deemed or construed in any way as constituting the consent or
request of Lessor, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer, or materialman for the performance of any
labor or the furnishings of any materials for any specific improvement,
alteration, or repair of or to the Premises, or any part thereof, nor as giving
Lessee any right, power, or authority to contract for or permit the rendering of
any services or the furnishing of any materials that would give rise to the
filing of any mechanic's or other liens against the interest of Lessor in the
Premises. In the case of the filing of any lien on the interest of Lessor or
Lessee in the Premises, Lessee shall cause the same to be discharged of record
within ten (10) days after the filing of same either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit in court
or bonding. If Lessee shall fail to discharge such mechanic's lien within such
period, then, in addition to any other right or remedy of Lessor, Lessor may,
but shall not be
10
obligated to, discharge the same, either by paying the amount claimed to be due,
or by procuring the discharge of such lien by deposit in court or bonding. Any
amount paid by Lessor for any of the aforesaid purposes, or for the satisfaction
of any other lien, not caused or claimed to be caused by Lessor, with interest
thereon at the rate of eighteen percent (18%) per annum or the highest lawful
rate, whichever is the lesser, from the date of payment, shall be paid by Lessee
to Lessor demand.
Section 25. Estoppel Certificate
Lessee will, at any time and from time to time, upon not less
than ten (10) days' prior request by Lessor, execute, acknowledge, and deliver
to Lessor a statement in writing executed by Lessee certifying that Lessee is in
possession of the Premises under the terms of this Lease, that this Lease is
unmodified and in full effect (or, if there have been modifications, that this
Lease is in full effect as modified, and setting forth such modifications), and
the dates to which the rent has been paid, and either stating that to the
knowledge of Lessee no default exists hereunder, or specifying each such default
of which Lessee may have knowledge, and such other matters as may be reasonably
requested by Lessor; it being intended that any such statement by Lessee may be
relied upon by any prospective purchaser or mortgagee of the Building.
Section 26. Events of Default
(a) Each of the following occurrences, or acts or omissions of
Lessee, shall constitute an event of default by Lessee under this Lease
(hereinafter called an "event of default):
(i) Failure or refusal by Lessee to make the timely and punctual
payment of any rent or other sums payable under this Lease when and as
the same shall become due and payable, and the continuance of such
non-payment for Lessee's receipt of Lessor's written notice of
non-receipt.
(ii) Abandonment or vacating of all or any material portion of the
Premises, or Lessees failure to occupy the Premises within fifteen (15)
days after the Commencement Date; or
(iii) The filing or execution or occurrence of a petition in bankruptcy
or other insolvency proceeding by or against and not discharged within
thirty (30) days Lessee; or petition or answer seeking relief under any
provision of the U.S. Bankruptcy Code; or an assignment of all or a
material portion of Lessees assets for the benefit of creditors or in
composition; or a petition or other proceeding by or against Lessee for
the appointment of a trustee, receiver or liquidator of Lessee or of
Lessees property; or a proceeding by any governmental authority for the
dissolution or liquidation of Lessee; or
(iv) Any assignment or sublease by Lessee (whether or not legal, valid
or enforceable and whether or not rendered void by the terms hereof),
or the occupation or use of the Premises (or any portion thereof) by
persons other than Lessee in a manner that would be equivalent to a
sublease or assignment under applicable law, unless consented to by
Lessor pursuant to the provisions of Section 21 hereof; or
(v) Lessee uses the Premises or any part in violation of the use
restrictions hereof and either (i) such use continues for a period of
ten (10) days after written notice of such violation is given by Lessor
to Lessee, or (ii) without notice or demand if such violation is
repeated or chronic (i.e., occurs after three (3) prior instances in
which Lessor has given Lessee written notice of prior violations of the
use clause hereof, whether or not cured on those prior occasions and
whether or not the current violation is similar to the prior
violations); or
(vi) Lessee fails to remove or bond around any materialmans or
mechanics lien within thirty (30) days from the date of its filing; or
(vii) Lessee makes a modification, alteration or improvement to the
Premises (excluding painting, changes in wall-coverings or other
strictly cosmetic changes, to the extent not visible from the interior
of the Building common area) without Lessor"s prior written consent as
required herein; or
(viii) Chronic or repeated violation of Rules and Regulations of the
Building or other provisions of this lease which, by their nature, do
not continue from day to day (i.e., any further such violation occurs
after repeated prior violations and written notices of such prior
violations from Lessor to Lessee at least three times during any
twelve-month period); or
(ix)Lessee records this Lease or any memorandum or notation thereof in
violation of the provisions of Section 47 hereof:
or
(x) Lessee (A) allows Hazardous Substances on the Premises ((that are
not released into or on the Premises or the Building or Property)) but
which are not allowed by the terms of this lease and such materials
either (i) are not removed from the Premises within ten (10) days after
receipt of written notice or demand by Lessor on Lessee, or (ii) are
allowed on the Premises after repeated previous occasions (two or more
occasions in any given 12-month period) on which Lessor gave Lessee
written notice to remove the same (whether or not they were removed on
the prior occasions), or (B) allows or causes any release of Hazardous
Substances in or upon the Premises or the building or Property (or
adjacent property) in violation of this Lease and such contamination is
not cleaned up to the satisfaction of Lessor and governmental
authorities with jurisdiction within fifteen (15) days after receipt of
written notice from Lessor to Lessee; or
(xi) Lessee violates any requirement of applicable law that is Lessees
responsibility to comply with under this Lease to the extent that, as a
result thereof, Lessor or its property management agent can be held
liable for any fine, penalty or assessment, or be the subject to any
enforcement action interfering with the operation of the Building, by
or of any governmental authority or agency, or to the extent that any
mortgages lienholder is entitled to accelerate the indebtedness secured
by the Building or Property, and such violation is not fully remedied
and cured by Lessee within ten (10) days after receipt of written
notice thereof is given to Lessee by Lessor (if such consequences exist
and notice is given by Lessor to Lessee under this paragraph (xi),
rather than paragraph (xii) immediately below, Lessor will specify in
its notice to Lessee that notice is being given under this clause and
shall specify the reason that the default by Lessee is of a nature
covered by this paragraph); or
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(xii) Failure by Lessee in the performance or compliance with any of
the agreements, terms, covenants or conditions provided in this Lease,
other than those referred to in Section 26(a)(i) through (xi), above
(unless Lessor expressly elects to proceed under this paragraph), for a
period of fifteen (15) days after receipt of written notice from Lessor
to Lessee specifying the items in default; provided, however, that if
the cure of such default cannot reasonably be cured by Lessee within
such fifteen (15)-day period despite diligent commencement and diligent
and continuous prosecution of such cure after receipt of notice of
default from Lessor, Lessee shall have such additional time to cure as
would be reasonably necessary in the exercise of prompt, diligent and
continuous efforts to cure the default in question, but in no event
beyond thirty (30) days from the date Lessor gave notice of such
default; or
(xiii) Default by Lessee under any other lease made by Lessee (or any
party related to or affiliated with Lessee) for any other space in the
Building, or any other contractual agreement between Lessor and Lessee
of any nature or kin, after Lessor has given Lessee a written notice
that such event of default constitutes a default hereunder and such
default under such other lease remains uncured for an additional period
of ten (10) days following such notice.
(b) This lease is subject to the limitation that if and
whenever any event of default shall occur, Lessor may, at its option
and without any prior verbal or written notice to Lessee, in addition
to all other rights and remedies of Lessor hereunder or by law or
equity, continue this Lease in full force and effect and/or do any one
or more of the following:
(i) Terminate this Lease by express written notice of
such election by Lessor to Lessee, in which event Lessee shall
immediately surrender possession of the Premises to Lessor;
(ii) Enter upon and take possession of the Premises
and expel or remove Lessee and any other occupant therefrom, with or
without having terminated the Lease; and/or
(iii) Alter locks and other security devices at the
Premises and terminate Lessees access to the Building and (if
applicable) the Building garage.
(c) Exercise by Lessor of any one or more remedies granted
under Section 26(b) or otherwise available shall not be deemed to be an
acceptance by Lessor or surrender of the Premises by Lessee, either by
agreement or by the written agreement of Lessor and Lessee.
(d) In the event Lessor elects to terminate the Lease by
reason of an event of default, then notwithstanding
such termination, Lessee shall be liable for and
shall pay to Lessor the sum of all rent and other
indebtedness accrued to the date of such termination,
and all expenses incurred by Lessor as provided in
Section 26(g), plus, as damages, an amount equal to
the present value (discounted at the rate of 6% per
annum) of the Base Monthly Rental and Lessees share
of any Operating Expenses that Lessee would otherwise
have been required to pay hereunder for the remaining
portion of the Lease term (had such term not been
terminated by Lessor prior to the original date of
expiration stated herein), less the fair market
rental value of the Premises for the remaining
portion of the Lease term, discounted to present
value at the rate of 6% per annum.
(e) In the event that Lessor elects to repossess the Premises
without terminating the Lease, Lessee shall, at Lessors election, be
liable for and shall pay to Lessor, either of the following: (a) All
rent and other indebtedness accrued to the date of such repossession,
plus rent required to be paid by Lessee to Lessor during the remainder
of the Lease term until the date of expiration of the term as stated in
Section 2(a) of the Basic Lease Provisions, diminished by any net sums
thereafter received by Lessor through reletting the Premises during
such period (after deducting expenses incurred by Lessor as provided in
Section 26(g), it being expressly agreed that re-entry by Lessor will
not affect the obligations of Lessee for the unexpired term of the
Lease; in no event shall Lessee be entitled to any excess of the rent
obtained by reletting over and above the rent herein reserved; and
actions to collect amounts due by Lessee as provided in this Section
26(e) may be brought from time to time, on one or more occasions,
without the necessity of Lessors waiting until expiration of the Lease
term; or (b) The sum of all rent and other indebtedness accrued to the
date of such termination, and all expenses incurred by Lessor as
provided in Section 26(g), and, without prior notice to Lessee,
accelerate and declare immediately due and payable the present value
(discounted at the rate of 6% per annum of all Base Monthly Rental and
Operating Expenses that Lessee would otherwise have been required to
pay hereunder for the remaining portion of the Lease term (had such
term not been terminated by Lessor prior to the original date of
expiration stated herein); provided, however, that Lessee shall be
entitled to a credit against such accelerated rentals in an amount
equal to the fair market rental value of the Premises for the remaining
portion of the Lease term discounted to present value at the rate of 6%
per annum.
(f) For purposes of Sections 26(d) and 26(e), above, the fair
market rental value of the Premises shall be the amount of net rent
(meaning the gross basic rental after deductions of concessions and
expenses to the extent not duplicated in Lessors claims under Section
26(g), below) that it is that Lessor could reasonably be expected to
recover from reletting of the Premises, taking into account, among
other market factors (i) likely periods of vacancy based on market
conditions, including periods of vacancy for marketing the space and
construction of tenant finish or modifications, (ii) a reduction of the
basic rent by an amount of any increase that would be required in the
Base Year Expense Stop upon reletting, and (iii) a reduction in basic
rent for the amount of any other concessions that Lessor would likely
be required to grant a tenant in connection with reletting.
(g) If an event of default occurs, Lessee shall, in addition
to all amounts due under Section 26(d) and/or Section 26(e), be liable
for and shall pay to Lessor (to the extent that any such amount is not
also deducted from gross rent for purposes of determining the
appropriate fair market rental value offset under Sections 26(d) and
26(e), at Lessors address as shown in Item 2 of the Basic Lease
Provisions in addition to any sum provided to be paid elsewhere in this
Section 26, any and all of the following described amounts:
(i) Actual brokers fees payable to Lessor or any
affiliates of Lessor or any outside broker incurred in connection with
reletting the whole or any part of the Premises;
(ii) The cost incurred by Lessor in good faith in
removing and storing Lessees or other occupants property;
(iii) The cost incurred by Lessor in good faith in
repairing, altering, remodeling or otherwise putting the Premises into
a condition acceptable to the new tenant or tenants; and
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(iv) All expenses incurred by Lessor in enforcing
Lessors remedies, including, but not limited to, reasonable attorneys
fees. Past due rental amounts, including, but not limited to, Base
Rental, Operating Expenses, indemnity obligations, all late charges and
other past-due payments shall bear interest at the maximum rate
permitted (as to loans governed thereby) by Article 5069-1.04 of the
Texas Revised Civil statutes, as amended, from the due date until paid.
(h) In the event that Lessor is entitled to change the locks
at the Premises pursuant to any of the foregoing provisions, Lessee
agrees that entry may be gained for that purpose through use of a
duplicate or master key or any other peaceable means, that same may be
conducted out of the presence of Lessee if Lessor so elects, that no
notice shall be required to be posed by the Lessor on any door to the
Premises (or elsewhere) disclosing the reason for such action or any
other information, and that Lessor shall not be obligated to provide a
key to the changed lock to Lessee unless Lessee shall have first:
(i) brought current all payments due to Lessor under this
Lease;
(ii) fully cured and remedied to Lessors reasonable
satisfaction all other defaults of Lessee under this Lease (but if such
defaults are intentional or not reasonably subject to cure, such as
assignment or subletting in violation of this Lease or vacating the
Premises, then Lessor shall not be obligated to provide the new key to
Lessee under any circumstances); and
(iii) given Lessor security and assurance reasonably
satisfactory to Lessor that Lessee intends to and is able to meet and
employ with its future obligations under this Lease, both monetary and
non-monetary;
provided, however, that if Lessor has theretofore formally and
permanently repossessed the Premises pursuant to Section 26(e) hereof,
or has terminated this Lease pursuant to Section 26(d) hereof, then
Lessor shall be under no obligation to provide a key to the new lock(s)
to Lessee regardless of Lessees payment of past-due rent or other
past-due amounts, damages, or any other payments or amounts of any
nature or kind whatsoever, or Lessees subsequent cure or purported cure
of any other default.
Lessor will, upon written request by Lessee, at Lessors convenience and
upon Lessees execution and delivery of such waivers and
indemnifications as Lessor may reasonably require relating to liability
associated with such entry or removal of property (provided that Lessee
shall not be required to waive or indemnify Lessor or its contractors
from their respective intentional torts), at Lessors option either (i),
escort Lessee or its specifically authorized employees or agents to the
Premises to retrieve personal belongings and effects of Lessees
employees and Lessees business records and files (as opposed to
property which is an asset of Lessee or any Guarantor), and property of
Lessee that is not subject to the landlords liens and security
interests described in Section 28, below, or (ii) obtain from Lessee a
list of such property described in (i), above, and arrange for such
items to be removed from the Premises and made available to Lessee at
such place and at such time in or about the premises of the Building as
Lessor may designate; provided, however, that if Lessor elects option
(ii), then Lessee shall be required to deliver to Lessor such waivers
and indemnifications as Lessor may require in connection with liability
associated with the removal and delivery of such property (provided
that Lessee shall not be required to waive or indemnify Lessor or its
contractors from their respective intentional torts), and pay in cash
in advance to Lessor (a) the estimated costs that Lessor will incur in
removing such property from the Premises and making same available to
Lessee at the stipulated location, and (b) all moving and/or storage
charges theretofore incurred by Lessor with respect to such property.
The provisions of this Section 26(h) are intended to override and
supersede any conflicting provisions of the Texas Property Code
(including, without limitation, Section 93.002 thereof, as in effect on
January 1, 1997, and any amendments or successor statutes thereto), and
of any other law, to the maximum extent permitted by applicable law.
Section 27: Lessor's Right to Relet
(a) In the event of termination or repossession of the
Premises following an event of default, Lessor shall not have any
obligation to relet or attempt to relet the Premises, or any portion
thereof, or to collect rental after reletting; but Lessor shall have
the option to relet or attempt to relet; and in the event of reletting,
Lessor 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.
(b) If an event of default should occur under this Lease,
Lessor, without being under any obligation to do so and without thereby
waiving such default, may make any payment that Lessee failed to make
giving rise to such event of default and/or perform the other defaulted
obligation of Lessee, for the account of Lessee (and enter the Premises
for such purpose), and thereupon Lessee shall be obligated to, and
hereby agrees to, pay Lessor, upon demand, all costs, expenses and
disbursements (including, but not limited to, reasonable attorneys
fees) incurred by Lessor in good faith in taking such remedial action.
Section 28. Lien for Rent
In consideration of the mutual benefits arising under this
Lease, Lessee and any Guarantor herein grant to Lessor a lien and security
interest on Lessee's (or any Guarantor's) furniture, equipment, machinery and
furnishings now or hereafter placed in or upon the Premises and such property
shall be and remain subject to such lien and security interest of Lessor for
payment of all rent and other sums agreed to be paid by Lessee herein. The
provisions of this paragraph relating to such lien and security interest shall
constitute a security agreement under the Uniform Commercial Code so that Lessor
shall have and may enforce a security interest on such property of Lessee (and
any Guarantor). Lessee (and any Guarantor) agrees to execute as debtor such
financing statement or statements as Lessor may now or hereafter reasonably
request in order that such security interest or interests may be perfected
pursuant to the Uniform Commercial Code. Lessor may at its election at any time
file a copy of this Lease as a financing statement. Lessor, as secured party,
shall be entitled to all of the rights and remedies afforded a secured party
under the Uniform Commercial Code in addition to and cumulative of the
landlord's liens and rights provided by law or by the other terms and provisions
of this Lease.
Upon the occurrence of an event of default by Lessee, Lessor
may, in addition to any other remedies provided herein, enter upon the Premises
and take possession of any and all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Lessee situated on the Premises,
without liability for trespass or conversion, and sell the same at public or
private sale, with or without having such property at the sale, after giving
Lessee reasonable notice of the time and place of any public sale or of the time
after which any private sale is to be made, at which sale the Lessor or its
assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Lessee reasonable notice, the requirement of reasonable notice shall be met if
such notice is given in the manner prescribed in this Lease at least seven (7)
days before the time of sale. Any sale made pursuant to the provision of this
paragraph shall be deemed to have been a public sale conducted in commercially
reasonable manner if held in the above-described premises or where the property
is located after the time, place and method of sale and a general description of
the types of property to be sold have been advertised in a daily newspaper
published in the county in which the property is located, for five (5)
consecutive days
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before the date of the sale. The proceeds from any such disposition, less any
and all expenses connected with the taking of possession, holding and selling of
the property (including reasonable attorney's fees and legal expenses), shall be
applied as a credit against the indebtedness secured by the security interest
granted in this paragraph. Any surplus shall be paid to Lessee or as otherwise
required by law; the Lessee shall pay any deficiencies forthwith. Upon request
by Lessor, Lessee agrees to execute and deliver to Lessor a financing statement
in form sufficient to perfect the security interest of Lessor in the
aforementioned property and proceeds thereof under the provision of the Uniform
Commercial Code (or corresponding state statute or statutes) in force in the
state in which the property is located, as well as any other state the laws of
which Lessor may at any time consider to be applicable.
Section 29. Attorney's Fees
In the event either party hereto institutes any legal or
equitable proceeding against the other party hereto, the prevailing party shall
be entitled to recover its reasonable attorney's fees.
Section 30. No Implied Waiver
The failure of Lessor to insist at any time upon the strict
performance of any covenant or agreement or to exercise any option, right,
power, or remedy contained in this Lease shall not be construed as a waiver or a
relinquishment thereof for the future. The waiver of or redress for any
violation of any term, covenant, agreement, or condition contained in this Lease
shall not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. No
express waiver shall affect any condition other than the one specified in such
waiver and that only for that one time and in the manner specifically stated. A
receipt by Lessor of any rent with knowledge of the breach of any covenant or
agreement contained in this Lease shall not be deemed a waiver of such breach,
and no waiver by Lessor of any provision of this Lease shall be deemed to have
been made unless expressed in writing and signed by Lessor. No payment by Lessee
or receipt by Lessor of a lesser amount than the monthly installment of rent due
under this Lease shall be deemed to be other than on account of the earliest
rent due hereunder, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Lessor may accept such check or payment without prejudice to
Lessor's right to recover the balance of such rent or pursue any other remedy in
this Lease provided.
Section 31. Casualty Insurance
Lessor shall maintain fire and extended coverage insurance on
the Building. Such insurance shall be maintained with an insurance company
authorized to do business in Texas, in amounts desired by Lessor and at the
expense of Lessor (as a part of the Basic Costs), and payments for losses
thereunder shall be made solely to Lessor.
Lessee shall maintain at its expense fire and extended
coverage insurance on all of its personal property, including removable trade
fixtures, located in the Premises and on all additions and improvements made by
Lessee and not required to be insured by Lessor above.
Section 32. Liability Insurance
Lessor shall, at its expense (as a part of the Basic Costs),
maintain a policy or policies of comprehensive general liability insurance with
the premiums thereon fully paid on or before the due date, issued by and binding
upon some solvent insurance company.
Lessee shall, at Lessees expense, obtain and keep in force
during the term of this Lease, a policy of commercial general liability
insurance in the minimum amount of $1,000,000 combined aggregate limits per
occurrence for bodily injury and property damage, including contractual
liability coverage, insuring Lessee against any liability arising out of the
use, occupancy and/or maintenance of the Premises and/or the Common Areas of the
Building or grounds, or arising out of this Lease, and naming Lessor as an
additional insured thereon under the form of endorsement providing Lessor with
the most coverage available as additional insured. The limit of such insurance
shall not and does not limit the liability of Lessee under this Lease. If such
policy is a blanket policy covering operations of Lessee at other locations
and/or for other operations, it shall contain a "per location endorsement
sufficient to ensure that the full amount of the above-required coverage limits
are available separately with respect to Lessees operations with the Building.
Insurance required of Lessee under this Section 32 and Section 31, above, shall
be obtained through companies acceptable to Lessor and licensed to do business
in the State of Texas. Throughout the term of this Lease, Lessee shall also
maintain in force a policy or policies of business interruption insurance
sufficient to cover the total interruption of Lessees business operations at and
from the Premises for a period of twelve (12) months, and covering at least the
causes of fire, lightning, windstorm, the elements and other events that would
be covered by a fire and extended coverage property loss policy ("casualty
events).
Within five (5) days of the earlier to occur of the commencement date of this
Lease or the date Lessee takes occupancy of any part of the Premises, Lessee
shall furnish Lessor with a certificate or certificates of insurance issued by
Lessees insurer(s), addressed to Lessor, evidencing that the insurance required
by this Lease to be maintained by Lessee is in full force for at least one year
and complies with the requirements hereof, and, if Lessor so requests, a copy of
the policy. The certificate and the policy, as the case may be, must state that
no modification or cancellation of the coverage may be effected without at least
thirty (30) days prior written notice to Lessor. If Lessee shall fail to procure
and maintain such insurance, Lessor may, but shall not be required to, procure
and maintain such insurance at Lessee"s sole expense which amount shall be paid
by Lessee to Lessor upon demand as additional rent hereunder.
Section 33. Indemnity
Neither Lessor, nor Lessor's agents, servants, or employees
shall be liable to Lessee, or to Lessee's agents, servants, employees,
customers, or invitees, for any damage to person or property caused by any act,
omission, or neglect of Lessee, its agents, servants or employees, and Lessee
agrees to indemnify and hold Lessor and Lessor's agents, servants, and employees
harmless from all liability and claims for any such damage. Lessee shall not be
liable to Lessor, or to Lessor's agents, servants, employees, customers, or
invitees, for any damage to person or property caused by any act, omission, or
neglect of Lessor, its agents, servants, or employees, and Lessor agrees to
indemnify and hold Lessee harmless from all liability and claims for such
damage.
Section 34. Rent Tax
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If applicable in the jurisdiction where the Leased Premises
are situated, Lessee shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Lessor by Lessee under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the rent,
additional rent, operating expenses or other charge upon which the tax is based
as set forth above.
Section 35. Waiver of Claims and Subrogation
Notwithstanding anything in this Lease to the contrary,
Lessor and Lessee each hereby waives any and all rights of recovery, claim,
action or cause of action, against the other, its agents (including Lessors
property manager), officers and employees, for any loss or damage that may occur
to the Premises, or any improvements thereto, or the Building, or any
improvements thereto, or any personal property of such party in the Premises or
the Building, or on the grounds of the Property, by reason of fire, the
elements, or any other cause which is or was required to have been insured
against under the terms of Sections 31 and 32 hereof, regardless of cause or
origin, including negligence of the other party hereto, its agents, officers or
employees (but excluding willful acts of misconduct), and each covenants that no
insurer of any such loss shall hold any right of subrogation against such other
party. In respect to Lessors waiver, such waiver shall be effective only to the
extent of insurance proceeds received or receivable pursuant to any such policy.
To the extent of any excess loss or any deductible amount, recovery against
Lessee is not hereby waived and released. Lessee also waives, releases and
relinquishes any and all recoveries, claims, actions, causes of action or rights
of recovery against Lessor, its property manager, and their respective agents,
employees, officers and affiliates, for any loss or damage to Lessees business
(including loss of profit or revenue) arising from casualty events to the
Premises or any property of Lessee on the Property to the extent of the required
coverage of Lessees business interruption insurance, whether or not arising from
the negligence of Lessor or such other released parties, and Lessee further
covenants and warrants to Lessor that no insurance company issuing Lessee a
policy of business interruption insurance shall have any rights of subrogation
against Lessor by reason of any payment of any such claim made thereon by
Lessee.
Section 36. Casualty Damage
If the Premises or any part thereof shall be damaged by fire
or other casualty, Lessee shall give prompt written notice thereof to Lessor. In
case the Building shall be damaged by fire or other casualty, but shall not be
rendered untenantable in whole or in part, Lessor shall, at its sole expense,
cause such damage to be repaired with reasonable diligence to substantially the
same condition in which it was immediately prior to the happening of the
casualty, and the Base Rental hereunder shall not be abated; however, in case
the Building shall be so damaged by fire or other casualty that substantial
alteration or reconstruction of the Building shall, in Lessor's sole opinion, be
required (whether or not the Premises shall have been damaged by such fire or
other casualty), or in the event any mortgagee under a mortgage or deed of trust
covering the Building should require that the insurance proceeds payable as a
result of said fire or other casualty be used to retire the mortgage debt,
Lessor may, at its option, terminate this Lease and the term and estate hereby
granted by notifying Lessee in writing of such termination within sixty (60)
days after the date of such damage. If Lessor does not thus elect to terminate
this Lease, Lessor shall within seventy-five (75) days after the date of such
damage commence to repair and restore the Building and shall proceed with
reasonable diligence to restore the Building (except that Lessor shall not be
responsible for delays outside its control) to substantially the same condition
in which it was immediately prior to the happening of the casualty, except that
Lessor shall not be required to rebuild, repair, or replace any part of Lessee's
fixtures, equipment or other personal property removable by Lessee under the
provisions of this Lease, and Lessor shall not in any event be required to spend
for such work an amount in excess of the insurance proceeds actually received by
Lessor as a result of the fire or other casualty. Lessor shall not be liable for
any inconvenience or annoyance to Lessee or injury to the business of Lessee
resulting in any way from such damage or the repair thereof, except that,
subject to the provisions of the next sentence, Lessor shall allow Lessee a fair
diminution of rent during the time and to the extent the Premises, or any
portion thereof, are unfit for occupancy. If the Premises or any other portion
of the Building be damaged by fire or other casualty resulting from the fault or
negligence of Lessee or any of Lessee's agents, employees, or invites, the rent
hereunder shall not be diminished during the repair of such damage, and Lessee
shall be liable to Lessor for the cost and expense of the repair and restoration
of the Building caused thereby to the extent such cost and expense is not
covered by insurance proceeds. Any insurance, which may be carried by Lessor or
Lessee against loss or damage to the Building or to the Premises, shall be for
the sole benefit of the party carrying such insurance and under its sole
control.
Section 37. Condemnation
If the whole or substantially the whole of the Premises should
be taken for any public or quasi-public use under any governmental law,
ordinance, or regulation, or by right of eminent domain, or should be sold to
the condemning authority in lieu of condemnation, then this Lease shall
terminate as of the date when physical possession of the Premises is taken by
the condemning authority. If less than the whole or substantially the whole of
the Complex, Building or the Premises is thus taken or sold, Lessor (whether or
not the Premises are affected thereby) may terminate this Lease by giving
written notice thereof to Lessee within sixty (60) days after the right of
election accrues, in which event this Lease shall terminate as of the date when
physical possession of such portion of the Complex or Building or Premises is
taken by the condemning authority. If upon any such taking or sale of less than
the whole or substantially the whole of the Complex or Building or the Premises
this Lease shall not be thus terminated, the Base Rental payable thereunder
shall be diminished by an amount representing that part of the Base Rental as
shall properly, in Lessor's reasonable judgment, be allocable to the portion of
the Premises which was so taken or sold or affected, if any, and Lessor shall,
at Lessor's sole expense, restore and reconstruct the Complex, Building or the
Premises, as the case may be, to substantially their former condition to the
extent that the same, in Lessor's judgment, may be feasible; Lessor shall not in
any event be required to spend for such work an amount in excess of the amount
received by Lessor as compensation awarded upon a taking of any part or all of
the Complex, Building or the Premises, and Lessee shall not be entitled to and
expressly waives all claim to any such compensation.
Section 38. Notices and Cure
In the event of any act or omission by Lessor which would give
Lessee the right to damages from Lessor or the right to terminate this Lease by
reason of the constructive or actual eviction from all or part of the Premises
or otherwise, Lessee shall not xxx for such damages or exercise any such right
to terminate until it shall have given written notice of such act or omission to
Lessor and to the holder(s) of any indebtedness or other obligations secured by
any mortgage or deed of trust affecting the Premises (to the extent Lessor
provides Lessee with appropriate notice addresses for any such persons), and a
reasonable period of time (but in not event fewer than 30 days) for remedying
such act or omission shall have elapsed following the giving of such notice,
during which time Lessor and such holder(s) or either of them, their agents or
employees, shall be entitled to enter upon the Premises and do therein whatever
may be necessary to remedy such act or omission. During the period after the
giving of such notice and during the remedying of such act or omission, the Base
Rental payable by Lessee for such period as provided in this Lease shall be
abated and apportioned only to the extent that any part of the Premises shall be
untenantable.
15
Section 39. Personal Liability
The liability of Lessor to Lessee for any default by Lessor
under the terms of this Lease shall be limited to the interest of Lessor in the
Building and the land on which the Building is situated, and Lessee agrees to
look solely to Lessor's interest in the Building and the land on which the
Building is situated for the recovery of any judgment from Lessor, it being
expressly understood and agreed that Lessor shall never be personally liable for
any judgement or deficiency, whether or not the claim in question arose from the
negligence of Lessor or any party for whose actions Lessor is legally liable.
This clause shall not be deemed to limit or deny any remedies, which Lessee may
have in the event of a default hereunder, which do not involve the personal
liability of Lessor. Lessor and Lessors agents and employees shall not be liable
to Lessee for any injury to person or damage to property caused by the Premises
becoming out of repair or by defect or failure of any structural element of the
Premises or of any equipment, pipes or wiring, or broken glass, or by the
backing up of drains, or by gas, water, steam, electricity or oil leaking,
escaping or flowing into the Premises (except where due to Lessors willful
failure to make repairs required to be made hereunder, after the expiration of a
reasonable time after written notice to Lessor of the need for such repairs).
Lessor shall not be held responsible in any way on account of any construction,
repair or reconstruction (including widening) of any private or public roadways,
walkways or utility lines.
Section 40. Notice
Any notice, communication, request, reply, or advice
(hereinafter severally and collectively called "notice") in this Lease provided
for or permitted to be given, made, or accepted by either party to the other
must be in writing, and may, unless otherwise in this Lease expressly provided,
be given or be served by depositing the same in the United States mail, postpaid
and certified and addressed to the party to be notified, with return receipt
requested, or by delivering the same in person to any officer of such party, or
by prepaid telegram, when appropriate, addressed to the party to be notified.
Notice deposited in the mail in the manner hereinabove described shall be deemed
given and received for all purposes hereof, unless otherwise stated in this
Lease, from and after the expiration of three (3) days after it is so deposited
or upon actual receipt at the addressees effective notice address, whichever is
earlier (actual receipt being deemed the date of first attempted delivery if the
first attempted delivery is not successful). Notice given in any other manner
shall be effective only if and when received by the party to be notified.
For purposes of notice, the addresses of the parties shall, until changed as
herein provided, be as follows:
For Lessor: Xx. Xxxxxxx X. X'Xxxxxxx
HSO CORPORATE DRIVE LIMITED PARTNERSHIP
0000 X. Xxx Xxxxxxx Xxxxxxx, X., Xxxxx 000
Xxxxxxx, Xxxxx 00000
With a Copy to: Xxxx Xxxxxxx
Exchange Realty Partners
00000 Xxxxxxxxx Xxxxx, Xxxxx #000
Xxxxxxxx, Xxxxx 00000
For Lessee Xxxxxx Xxxxx
Enerteck Chemical Corp.
00000 Xxxxxxxxx Xxxxx, #000
Xxxxxxxx, Xxxxx 00000
The parties hereto and their respective heirs, successors, legal
representatives, and assigns shall have the right from time to time and at any
time to change their respective addresses and each shall have the right to
specify as its address any other address by at least fifteen (15) days written
notice to the other party delivered in compliance with this Paragraph 40.
Section 41. Surrender
On the last day of the term of this Lease, or upon the earlier
termination of this Lease, Lessee shall peaceably surrender the Premises to
Lessor in good order, repair, and condition at least equal to the condition when
delivered to Lessee, excepting only reasonable wear and tear resulting from
normal use, and damage by fire or other casualty covered by the insurance
carried by Lessor. All movable fixtures, office equipment, and other personal
property of Lessee shall remain the property of Lessee, and upon the expiration
date or earlier termination of this Lease may be removed from the Premises by
Lessee, subject, however, to Lessor's lien for rent; provided, however, that
Lessee shall repair and restore in a good and workmanlike manner (reasonable
wear and tear excepted), any damage to the Premises or the Building caused by
such removal. Any of such movable fixtures, office equipment and other personal
property not so removed by Lessee at or prior to the expiration date or earlier
termination of this Lease shall become the property of Lessor. All other
property as a part of the Premises attached or affixed to the floor, wall, or
ceiling of the Premises (including wall-to-wall carpeting, paneling, or other
wall covering) are the property of Lessor and shall remain upon and be
surrendered with the Premises as a part thereof at the termination of this Lease
by lapse of time or otherwise, Lessee hereby waiving all rights to any payment
or compensation therefor.
Notwithstanding anything herein to the contrary, Lessee's
surrender of the Premises shall in no way affect Lessee's obligation to pay rent
to the date of expiration of this Lease, whether or not the amount of such
obligation has been ascertained either as of the date Lessee surrenders the
Premises or as of the date of expiration of this Lease.
Section 42. Captions
The captions of each Section of this Lease are inserted and
included solely for convenience and shall never be considered or given any
effect in construing this Lease, or any provisions hereof, or in connection with
the duties, obligations, or liabilities of the respective parties hereto, or in
ascertaining intent, if any question of intent exists.
Section 43. Entirety and Amendments
16
This Lease embodies the entire contract between the parties
hereto relative to the subject matter hereof. No variations, modifications,
changes, or amendments herein or hereof shall be binding upon any party hereto
unless in writing, executed by a duly authorized officer or a duly authorized
agent of the particular party. All exhibits referred to in this Lease and
attached hereto are incorporated herein for all purposes.
Section 44. Severability
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, 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 enforced to the fullest extent
permitted by law.
Section 45. Binding Effect
Subject to Section 21, all covenants and obligations as
contained within this Lease shall bind, extend, and inure to the benefit of
Lessor, its successors and assigns, and shall be binding upon Lessee, its
permitted successors and assigns.
Section 46. Number and Gender of Words
All personal pronouns used in this Lease shall include the
other gender, whether used in the masculine, feminine, or neutral gender, and
the singular shall include the plural whenever and as often as may be
appropriate.
Section 47. Recordation
Lessee agrees not to record this Lease, but Lessee agrees, on
request of Lessor, to execute a short form lease in form recordable and
complying with applicable Texas laws. In no event shall such document set forth
the rental or other charges payable by Lessee under this Lease; and any such
document shall expressly state that it is executed pursuant to the provisions
contained in this Lease and is not intended to vary the terms and conditions of
this Lease. Lessee shall not, under any circumstances (unless requested by
Lessor in writing), record this Lease or any memorandum, affidavit or notation
referencing this Lease in the Real Property Records of the county where the
Property is located.
Section 48. Commissions
Lessee agrees that it has been represented solely by no real
estate brokerage firm or broker and, Lessee agrees to indemnify Lessor against
any claim with respect to a leasing commission or brokerage fee claimed by any
other real estate brokerage firm or broker for the execution and/or renewal or
any expansions of or under this Lease.
Section 49. Confidentiality
Lessee agrees to hold this Lease confidential and not to
reveal the terms and conditions of the Lease to any other party without the
prior written permission of Lessor.
Section 50. Governing Law
This Lease and the rights and obligations of the parties
hereto shall be interpreted, construed, and enforced in accordance with the laws
of the State of Texas.
Section 51. Force Majeure
Whenever a period of time is herein prescribed for the taking
of any action by Lessor, Lessor shall not be liable or responsible for, and
there shall be excluded from the computation of such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions, or any act, omission, delay, or
neglect of Lessee or any of Lessee's employees or agents, or any other cause
whatsoever beyond the control of Lessor. Furthermore, the foregoing shall in no
manner release, relieve or affect the independent obligation of Lessee to pay
rent hereunder.
Section 52. Relationship of Parties
Nothing contained herein shall create any relationship between
the parties hereto other than that of landlord and tenant, and it is
acknowledged and agreed that Lessor does not in any way or for any purpose
intend, nor shall this Lease be construed, to create as between Lessor and
Lessee the relation of partner, joint venture or member of a joint or common
enterprise with Lessee.
Section 53. Security Deposit
At the time of execution of this lease, and in addition to the
$812.29 tendered herewith for the first month's Base Rent hereunder, Lessee
shall deposit with Lessor $812.29 in the form of cash to secure performance of
Lessee's obligations under this lease during the initial term and renewal or
extension periods, bringing Lessee's total Security Deposit to $812.29. If
Lessee fails to pay rent or other sums when due, the security deposit may at
Lessor's option be applied to such unpaid amounts. If the security deposit is
drawn against in whole or in part, Lessee shall restore the security deposit to
its original amount immediately upon written request by Lessor. The security
deposit (or an accounting thereof) shall be returned to Lessee within thirty
(30) days after surrender of the leased premises by Lessee, less lawful
deductions for damages and other sums due under this lease.
Section 54. Financial Information Of Lessee
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Lessee shall at any time and from time to time during the term
of this Lease, within fifteen (15) days of written request by Lessor, deliver to
Lessor such financial information concerning Lessee and Lessees business
operations (and the Guarantor of this Lease, if the Lease be guaranteed) as may
be reasonably requested by Lessor. If Lessee fails to provide such information
promptly, then, without limiting any other remedy which Lessor may have for such
failure, Lessor may thereupon terminate this Lease on not less than ten (10)
days written notice.
Section 55. XXX
Xxxxxx covenants and agrees that all new alterations,
improvements and additions to the Premises constructed by Lessor pursuant to the
terms and provisions of this Lease shall be constructed in accordance with the
Americans with Disabilities Act (the "Act"), such that all such alterations,
improvements and additions to the Premises constructed by Lessor will be in
compliance with the Act as of the date on which Lessee takes possession of the
Premises. Lessee covenants and agrees that all alterations, improvements and
additions to the Premises constructed by Lessee, whether prior to or after the
date Lessee takes possession of the Premises, shall be constructed in accordance
with the Act. In the event that, subsequent to the date Lessee takes possession
of the Premises, Lessee requests Lessor to perform any alterations, improvements
and additions to the Premises, whether by virtue of expansion, extension or
otherwise, Lessee agrees to and shall be responsible for all cost and expense
incurred in connection with any alterations, improvements and additions
necessary to ensure compliance with the Act. It is the intent of this paragraph
that any additional alterations, improvements or additions required by the Act
with regard to the Premises after the date Lessee takes possession of the
Premises, whether resulting from amendments to the Act or otherwise, shall be
the sole responsibility of Lessee. Lessee covenants and agrees to and does
hereby indemnify, defend and hold Lessor harmless from and against all liability
(including, without limitation, attorneys' fees and court costs) that Lessor may
actually sustain by reason of Lessee's breach of its obligations under this
paragraph. In the event that Lessee fails to comply with its obligations under
this paragraph for a period of ten (10) days after written notice from Lessor to
Lessee specifying the action required to be taken, Lessor shall have the right,
but not the obligation, to enter into the Premises and perform such action on
behalf of Lessee. In such event, Lessor shall not be liable for and Lessee
hereby waives any and all claims against Lessor arising out of any damage or
injury to the Premises or any property situated therein and Lessor shall have no
liability to Lessee for any property situated therein and lessor shall have no
liability to Lessee for any interruption of Lessee's operations conducted in or
about the Premises. Any and all costs and expenses incurred by Lessor in
performing such action on behalf of Lessee shall be reimbursed by Lessee to
Lessor upon demand and the failure to do so shall, at the option of Lessor,
constitute an event of default under this Lease.
Section 56. Hazardous Materials
Lessee shall not cause or permit any Hazardous Material (as
hereinafter defined) to be brought upon, kept or used in or about the Premises
by Lessee, its agents, employees, contractors or invitees, without the prior
written consent of Lessor, which consent may be granted or withheld in Lessor's
sole discretion. For the purpose of this Lease "Hazardous Material" shall
include oil, flammable explosives, asbestos, urea formaldehyde, radioactive
materials or waste, or other hazardous, toxic, contaminated or polluting
materials, substances or wastes, including, without limitations, any "hazardous
substances," "hazardous wastes," hazardous materials" or toxic substances" as
such terms are defined in the Resource Conservation and Recovery Act and the
Comprehensive Environmental Response, Compensation and Liability Act, and in any
other law, ordinance, rule, regulation or order promulgated by the federal or
state government, or any other governmental entity having jurisdiction over the
Complex or the parties to this Lease. If Lessee breaches the obligations set
forth in this paragraph, or if the presence of Hazardous Material in the
Premises or at the Complex, or if contamination of the Complex by Hazardous
Material otherwise occurs for which Lessee is legally liable to Lessor for
damage resulting therefrom, then Lessee shall indemnify, defend and hold Lessor
harmless from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses, including, without limitation, diminution in value of the
Office Building Project, damages for the loss or restriction on use of rentable
or useable space in or of any amenity of the Office Building Project, damages
arising from any adverse impact on leasing space in the Office Building Project,
sums paid in settlement of claims, and any attorneys' fees, consultant fees and
expert fees which arise during or after the term of this Lease as a result of
such contamination. This indemnification of Lessor by Lessee shall survive
expiration or termination of this Lease and includes, without limitation, costs
incurred in connection with any investigation of site conditions or any cleanup,
remedial, removal or restoration work required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Material
present in, on or under the Premises. Without limiting the foregoing, if the
presence of any Hazardous Material caused or permitted by Lessee results in any
contamination of the Complex, Lessee shall promptly take all actions, at its
sole expense, as are necessary to return the Complex to the condition existing
prior to the introduction of any such Hazardous Material; provided that Lessor's
approval of such actions shall first be obtained, which approval shall not be
unreasonably withheld so long as such actions would not potentially have any
material adverse long-term or short-term effects on the Complex.
Section 57. No Lessor Obligation to Provide Security
(a) NEITHER LESSOR NOR ITS PROPERTY MANAGEMENT AGENT SHALL HAVE ANY
LIABILITY TO LESSEE OR ANY THIRD PARTY WHOMSOEVER, INCLUDING, WITHOUT
LIMITATION, LESSEE'S EMPLOYEES, OFFICERS, AGENTS, REPRESENTATIVES, CONTRACTORS,
CUSTOMERS, INVITEES OR LICENSEES, FOR DAMAGE, INJURY OR LOSS TO PERSONS OR
PROPERTY RESULTING FROM CRIMINAL ACTIVITY OCCURRING UPON THE PREMISES, THE
BUILDING, THE PROPERTY, OR ADJACENT THERETO, WHETHER SUCH CRIMINAL ACTIVITY IS
BY OTHER TENANTS, THEIR EMPLOYEES, AGENTS, OFFICERS, REPRESENTATIVES, CUSTOMERS,
INVITEES, LICENSEES, CONTRACTORS OR OTHERS, OR IS BY ANY THIRD PARTIES
WHOMSOEVER Lessee shall fully insure itself, as it may deem appropriate, to
protect itself from claims for any such possible injury, loss or damage to
persons or property resulting from criminal activity, including claims asserted
by its employees, agents, officers, representatives, customers, invitees,
licensees and contractors. LESSEE SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS
LESSOR AND ITS PROPERTY MANAGEMENT AGENT FROM AND AGAINST ANY CLAIMS FOR DAMAGE,
LOSS OR INJURY TO PERSONS OR PROPERTY ASSERTED BY LESSEE'S EMPLOYEES, AGENTS,
OFFICERS, REPRESENTATIVES, CUSTOMERS, INVITEES, LICENSEES OR CONTRACTORS
RESULTING FROM ANY SUCH CRIMINAL ACTIVITY, WHETHER BASED ON ALLEDGED NEGLIGENCE
OF LESSOR OR OTHERWISE.
(b) Subject to Lessor's prior written approval, which shall not be
unreasonably withheld, Lessee may at its cost take whatever precautions may be
necessary in the Premises and in the common areas of the Building and Property
to protect its employees, officers,
18
agents, representatives, customers, visitors, contractors, suppliers, invitees
and licensees from criminal activity when on the Property and in the Building,
or in the vicinity thereof, but nothing herein shall be deemed or construed as
an undertaking or obligation enforceable against Lessee by any such third party.
Lessee shall be responsible for informing itself as to the risk of crime from
time to time on and in the vicinity of the Property and Lessee shall not rely on
Lessor to obtain, monitor or disseminate such crime information. Any
dissemination of crime information by Lessor or its management agent shall be
without obligation or liability on the part of Lessor or its management agent to
do so in the future, and neither Lessor nor its management agent shall have
liability or responsibility for the accuracy or completeness of any such
information as the parties understand and acknowledge that such information
shall be from sources the reliability of which Landlord does not undertake to
verify or investigate. Lessee acknowledges that it is in an equal position to
Lessor in terms of its ability to investigate or obtain further verification of
the facts surrounding any particular crime reported by Lessor or otherwise
coming to the attention of Lessee. Lessee agrees to at all times comply, and
cause its employees, agents, contractors, invitees and licensees to comply, with
all security regulations from time to time in effect in the Building and on the
Property, but Lessor does not undertake any obligation to promulgate security
regulations nor does Lessor warrant or represent that any existing or future
security regulations will be effective to deter, reduce or prevent criminal
activity.
Section 58. Exhibits
The following numbered Exhibits are attached hereto and
incorporated herein and made a part of this Lease for all purposes:
Exhibit A - Building Legal Description
Exhibit B - Floor Plan of the Premises.
Exhibit C - Tenant Improvements and Specifications
Exhibit D - Base Rental Schedule
Exhibit E - Parking Rules and Regulations
Exhibit F - Building Rules and Regulations
Exhibit H - Corporate Resolution
Exhibit I - Renewal Option
Exhibit J - Special Provisions
EXECUTED in multiple counterparts, each which shall have the force and effect of
an original, on this 1st day of _February, 2001
LESSOR: HSO CORPORATE DRIVE LIMITED PARTNERSHIP
BY ITS SOLE GENERAL PARTNER HSO OFFICE HOLDINGS, LLC
By: Xxxxxxx X. X'Xxxxxxx
----------------------------------------------------
S/s
----------------------------------------------------
Title:
Manager
Date: February 1, 2001
----------------------------------------------------
LESSEE: ENERTECK CHEMICAL CORP.
By: Xxxxxx Xxxxx
----------------------------------------------------
S/s
Title: President
----------------------------------------------------
Date: January 29, 2001
----------------------------------------------------
SUBMISSION OF THIS INSTRUMENT FOR EXAMINATION OR SIGNATURE BY LESSEE DOES NOT
CONSTITUTE A RESERVATION OF OR AN OPTION FOR LEASE, AND IT IS NOT EFFECTIVE AS A
LEASE OR OTHERWISE UNTIL EXECUTION AND DELIVERY BY BOTH LESSOR AND LESSEE.
19
EXHIBIT A
Page One
BUILDING LEGAL DESCRIPTION
BEING, A THREE STORY ATRIUM OFFICE BUILDING LOCATED AT 10701 CORPORATE DRIVE IN
STAFFORD, TEXAS. IT IS LEGALLY DESCRIBED AS 5.2361 BEING UNRESTRICTED RESERVE D
CORPORATE BUSINESS PARK, OUT OF UNRESTRICTED RESERVE F OF CORPORATE BUSINESS
PARK AND OUT OF UNRESTRICTED RESERVE E OF THE REPLAT OF EXECUTIVE PARK. SAID
TRACT ALSO BEING IN THE X.X. XXXXXX SURVEY, ABSTRACT 000, XXXX XX XXXXXXXX, XXXX
XXXX COUNTY, TEXAS, AND BEING IN THE W, X. XXXXXXXX, 1 """ LEAGUE GRANT,
ABSTRACT 00, XXXXX XXXX, XXXX XXXX COUNTY, TEXAS
20
EXHIBIT B
FLOOR PLAN OF THE PREMISES
21
EXHIBIT C
TENANT IMPROVEMENTS AND SPECIFICATIONS
Lessee Improvements and Specifications: Landlord shall tender and
Tenant shall accept possession of the Lease Premises in an "AS-IS" condition,
with all, and without any warranty, express, implied, or statutory (including
implied warranties of habitability, suitability, condition, and fitness for a
particular purpose) with the exception of the Tenant Improvements listed on the
attached Exhibit "B" to be performed and completed in a workmanlike manner at
the sole expense of the Landlord up to a $2.00psf Tenant Improvement Allowance.
All other tenant improvements not shown or specified per Exhibit "B" will be at
the sole cost to Lessee, and paid upon demand to the Landlord. Tenant
Improvements are as follows:
1) Replace existing carpet in entire space with Building Standard Carpet.
2) Paint all existing walls with new building standard paint.
3) Add new door name to front door and directory strip on front and back
entrance
4) Rekey front door lock only. All inside private locks are a cost to the
tenant.
22
EXHIBIT D
BASE RENT SCHEDULE
To Lease Agreement for: Enerteck Chemical Corp.
Rentable Square Footage (RSF): 557
Commencement Date: February 1, 2001
------------------------------------
SCHEDULE
Annual Base Monthly Rent Annual Base
Time Period Rental Rate Rental Amount
------------------------------------------------------------------------------------------------------------------
1-36MNTHS. 02/01/01 TO 01/31/04 $ 17.50 $ 812.29 $ 9,747.49
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
$ 29,242.48
------------------------------------------------------------------------------------------------------------------
TOTAL OF BASE RENTAL PAYMENTS UNDER LEASE AGREEMENT:
23
EXHIBIT E
PARKING RULES AND REGULATIONS
It is the desire of Lessor to maintain and operate the parking garage
and parking areas in an orderly manner. The following rules and regulations
apply to all tenants in the Building and their agents, employees, family,
licensees, invitees, visitors, and contractors unless otherwise stated.
Lessor reserves the right to rescind these rules, make reasonable
changes, or make other reasonable rules and regulations for the safety, care,
and cleanliness of the parking garage and parking areas and for the
preservations of good order.
1. Traffic Signs. All persons parking in the parking garage or parking
areas shall observe posted signs and markings regarding speed, stop signs,
traffic lanes, reserved parking, no parking, stripes separating parking spaces,
etc.
2. Control Devices. Lessor reserves the right to install or utilize any
reasonable system of entry and exit control devices, Lessee identification
cards, or vehicle identification cards or stickers; and all persons parking in
the garage or parking areas shall comply with such system. Lessor may make
reasonable charges for replacement of control device cards or other parking
identification cards, which are lost or damaged.
3. Tenant Guest Parking. Lessor reserves the right to utilize any
reasonable system by which building Lessee may pay for parking of their guests
or customers.
4. Trash. All persons parking in the parking garage or parking areas
shall refrain from throwing trash, ashtray contents, or other debris on the
garage floor or parking areas.
5. Flat Tires. All vehicle owners and all persons parking in the
parking garage or parking areas shall be responsible for promptly repairing flat
tires or other conditions of the vehicle which cause unsightliness in the
reasonable judgement of Lessor.
6. Removal of Unauthorized Vehicles. If vehicles are blocking driveways
or passageways or parked in violation of these rules and regulations or state
statutes, Lessor may exercise vehicle removal remedies under Article 6701g-1 and
6701g-2 of the Texas Civil Codes upon compliance with statutory notice.
7. Security. Lessor shall use reasonable diligence in the maintenance
of existing lighting in the parking garage or parking areas. Lessor shall not be
responsible for additional lighting or further security measures in the parking
garage or other parking areas.
8. Timely Payment of Parking Rent. Lessee shall be entitled to monthly
parking rights in the parking garage pursuant to Section 13 of the Lease and,
only upon timely payment of the then current monthly parking rent.
9. Designated Parking. In the event Lessee is expressly granted rights
and/or privileges in and to specific parking areas or facilities under this
Lease, the following shall apply: Lessee and Lessees employees and/or permitted
subtenants shall park their cars only in those portions of the Parking Garage
and areas that are from time to time designated for that purpose by Lessor.
Lessor shall have the right from time to time to relocate parking areas within
the Property for use by Lessee. Lessee shall furnish in writing the make, model,
color and state automobile license number (automobile license numbers to be
submitted on a yearly basis) assigned to Lessees cars within five (5) days after
taking possession of the Premises and shall thereafter notify Lessor in writing
of any changes within two (2) days. In the event Lessee, or its employees,
agents and/or licensees fail to park their cars in the parking areas so
designated from time to time by Lessor, then any requirements in the Lease
regarding prior notice to Lessee or the expiration of any grace period, or both,
shall not apply and Lessor at its option shall (a) have the immediate right to
charge Lessee, or its permitted subtenants Ten Dollars ($10.00) per car per day
parked in any areas other than that so designated (which charges shall be deemed
Additional Rental hereunder and subject to all of the provisions relating
thereto), and/or (b) tow such vehicle away each at Lessees cost and expense.
Parking areas shall be used only for parking vehicles no longer than full size
passenger automobiles or " ton pick up trucks, herein called "PERMITTED SIZE
VEHICLES." Vehicles other than Permitted Size Vehicles are herein referred to as
"OVERSIZED VEHICLES." The maintenance, washing, waxing or cleaning of vehicles
in the parking structure or elsewhere in the Property is prohibited. Such
parking use as is herein provided is intended merely as a license only and no
bailment is intended or shall be created hereby.
24
EXHIBIT F
PAGE ONE OF FOUR
BUILDING RULES AND REGULATIONS
The following rules and regulations, hereby accepted by Lessee, are
prescribed by Lessor and shall be consistently applied to all tenants in order
to provide and maintain, to the best of Lessors ability, orderly, clean and
desirable Leased Premises and Property for the tenants of the Building, to
protect tenants, so far as reasonably possible, and to regulate conduct in and
use of the Property and Leased Premises in such manner as to minimize
interference by others in the proper use of the Leased Premises by Lessee. In
the following rules and regulations, all references to Lessee include not only
Lessee, but also Lessees officers, agents, servants, employees, invitees,
licensees, visitors, contractors, permitted assignees, and/or permitted
subleases. Lessor has reserved the right to amend and supplement these Building
Rules and Regulations as it may from time to time deem necessary or desirable
for appropriate operation and safety of the Property and its occupants. These
Rules shall not, however, be modified or supplemented in any way so as to
impair, in any material respect, the beneficial use and enjoyment of the Leased
Premises by Lessee for the uses permitted under this Lease. Lessor reserves the
right to waive any of these rules or regulations as to any particular Lessee,
and any such waiver shall not constitute a waiver of any other rule or
regulation or any subsequent application thereof to such Lessee.
1. Lessee shall not block or obstruct any of the sidewalks, corridors,
entries, passages, doors, elevators, elevator doors, hallways,
stairways or other similar areas of the Property, and shall not place,
empty, or throw away any rubbish, litter, trash, or material of any
nature into such areas, and shall not use or permit such areas to be
used at any time except for normal ingress and egress of tenants and
Lessor to and from the Property and the Leased Premises.
2. The movement by Lessee of furniture, equipment, merchandise, freight,
and other items and materials within, into, or out of the Leased
Premises or the Property shall be restricted to after 6:00 p.m. and to
the day, time, method and route of movement as prescribed in writing by
Lessor upon prior written request from Lessee, and Lessee shall assume
all liability and risk to persons and property, the Leased Premises,
and Property in such movement. Lessee must notify Lessor in writing at
least one (1) full business day in advance of the movement of said
property so that Lessor may designate and prepare any elevator for such
transportation or notify Lessee that such movement will not be
permitted under the Lease. Safes and other heavy equipment shall be
moved into, out of and within the Leased Premises only with Lessors
prior written consent and only to places designated by Lessor in
writing. Lessee shall protect all common area flooring during any such
moves. Lessees moving company must be a licensed commercial mover and
must be pre-approved by the Lessor in writing and must provide a
certificate of liability insurance from a solvent insurance company
licensed to do business in Texas. If a move requires after hours
supervision by the Lessor, the Lessee will be charged a reasonable fee
to be set by Lessor. All hand carts used in the Building must be
equipped with rubber tires and rubber side guards.
3. Lessor will not be responsible for or liable for lost or stolen
property, equipment, money, or any other item or article taken from the
Leased Premises or Property, including but not limited to parking
areas, regardless of how or when the loss or theft occurs.
4. Lessee shall not install or operate any refrigerating, heating, or air
conditioning apparatus in the Leased Premises and shall not carry on
any mechanical operation into the Leased Premises or Property.
Flammable, explosive or other hazardous fluids or materials shall not
be brought into the Property or the Leased Premises without the prior
written permission of Lessor.
5. Lessee shall not use the Property or the Leased Premises for housing,
lodging, or sleeping purposes, or for the cooking, preparation or
distribution of food. If Tenant's approved plans and specifications for
its Lessee Finish Out include a kitchen or coffee bar, Lessee may use
such designated areas only for microwave oven preparation of food, hot
plates to heat food and simple meal preparation for the enjoyment of
Lessee, its employees and guests, but nothing contained herein will
authorize Lessee to prepare food for resale or for profit or to operate
a cafeteria, snack bar, restaurant or other public or private eating
facility.
6. Lessee shall not bring into the Property or the Leased Premises or keep
on, in or about the Leased Premises any bird or animal (other than
animals trained to assist and which are assisting persons with visual
impairment). Lessee shall not bring into the Property or keep on or in
the Leased Premises any bicycle, boat, trailer, or commercial delivery
or transport vehicle or any other vehicle without the prior written
consent of Lessor.
25
EXHIBIT F
PAGE TWO OF FOUR
BUILDING RULES AND REGULATIONS
7. Except as expressly permitted in the Lease, Lessee shall not make any
alterations or improvements to the Leased Premises without the prior
written consent of Lessor. All alterations and improvements and the
methods of installing and constructing such alterations and
improvements must be approved in writing by Lessor prior to
commencement of installation or construction. Lessee shall not paint or
decorate in the Leased Premises, and shall not xxxx, paint, or cut
into, drive nails, or screw into or in any way deface any part of the
Leased Premises or Property without the prior written consent of the
Lessor. If Lessee desires signal, communication, alarm, or other
utility service connection installed or changed, such work shall be
done at expense of Lessee (including an administration fee equal to 15%
of the total cost of such work), only with the prior written approval
of the Lessor and only under the direction of the Lessor. All
contractors and technicians performing work for Lessee within the
Leased Premises and the Property must be approved in writing by Lessor
prior to the commencement of any such work.
8. For purposes of this Lease, Building Holidays are as follows:
New Years Day
Presidents Day
Good Friday
Memorial Day
Independence Day
Labor Day
Thanksgiving Day and the following Friday
Christmas Day
If a Building Holiday falls on a Sunday, the Building will close on the
preceding Saturday at 1:00 PM and remain closed until the following
Tuesday morning. When Christmas falls on Saturday, the building will
close on the preceding Friday and not reopen until the following Monday
morning.
9. No furniture, equipment, or similar articles shall be moved into or
from the Property without a removal permit from the Building Manager's
office authorizing same, and after a permit is issued, movement shall
be at the sole risk and responsibility of Lessee and shall otherwise be
in accordance with Rule 2 above.
10. Lessee shall, before leaving the Leased Premises unattended, close and
lock all outside doors and shut off all utilities; damage and any extra
expense resulting from failure to do so shall be paid by Lessee.
11. Lessee shall give Lessor prompt notice of all accidents involving
heating and air conditioning equipment, plumbing, electrical facilities
or any part or appurtenance of the Premises, including without
limitation damages to or defects in such equipment, plumbing,
facilities or other appurtenance of the Property.
12. The plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no liquids or other materials
or substances which might cause injury to the plumbing, foreign
substance of any kind shall be placed therein, and the expense of any
breakage, stoppage, or damage resulting from a violation of this
provision by Lessee or Lessees agents, employees or invitees shall be
borne by Lessee and Lessor shall not be liable therefor.
13. All contractors and technicians performing work for Lessee within the
Building shall be referred to Lessor for approval before performing
such work. Lessor shall not unreasonably withhold or delay its approval
of Lessees contractors or technicians. This preapproval requirement
shall apply to all work, including, but not limited to, installation of
telephones, telegraph equipment, electrical devices and attachments,
and all installations affecting floor, walls, windows, doors, ceilings,
equipment or any other physical feature of the Property or the Leased
Premises. None of this work shall be done by or on behalf of Lessee
without Lessors prior written consent.
14. Should Lessee desire to place in the Property any unusually heavy
equipment, including but not limited to, large files, safes, and
electronic data processing equipment, it shall first obtain written
approval of Lessor for the use of Building elevators and of the
proposed location in which such equipment is to be installed or placed.
Maximum live floor loads (excluding partitioning only) shall not exceed
fifty (50) pounds per square foot. Lessee, at Lessees sole cost and
expense, shall repair all damage done to the Property, including
without limitation, the Leased premises, arising by reason of or in
connection with the placement of heavy items, which over-stress the
floor.
15. There shall not be used in any space, or in the public halls,
sidewalks, corridors, or passageways of the Property, either by any
Lessee or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires
and rubber side guards.
26
EXHIBIT F
PAGE THREE OF FOUR
BUILDING RULES AND REGULATIONS
16. No person or contractor not employed by Lessor shall be used to perform
janitor work, window washing, cleaning, repair or other work in the
Leased Premises. Lessors janitors shall not be hindered by Lessee after
6:00 p.m. daily. Nothing shall be swept or thrown into the corridors,
halls, elevator shafts, stairways or similar areas.
17. Lessee must dispose of crates, boxes and the like which are associated
with the initial move-in and occupancy of the Premises, the purchase of
any other furniture or equipment during the term of the Lease or any
other items which are in excess of normal office supplies and
stationery. In no event shall Lessee set such items in the public
hallways or other areas of the Property for disposal.
18. Lessee, at Lessees sole cost and expense, shall repair all damage to
flooring as a result of rust or corrosion of file cabinets, plants, pot
holders, roller chairs, and metal objects.
19. Lessees employing laborers or others outside of the Leased Premises
shall not have their employees paid in the Property.
20. Lessee shall not advertise the business, profession or activities of
Lessee in any manner which violates the letter or spirit of any code of
ethics adopted by any recognized association or organization pertaining
thereto or use the name of the Property for any purpose other than that
of the business address of Lessee or use any picture or likeness of the
Property or the Property name in any letterheads, envelopes, circulars,
notices, advertisements, containers, or wrapping materials, without
Lessors prior written consent.
21. Lessor reserves the right to refuse access to any persons Lessor in
good faith judges to be a threat to the safety, reputation, or property
of the Property and its occupants.
22. Lessee shall not make or permit any noise or odors that annoy or
interfere with other Lessees or persons having business within or at
the Property. Lessee shall not otherwise interfere in any way with
other tenants, leases, or other persons having business at or in the
Property.
23. Lessee shall not do any thing in or around the Leased Premises or the
Property that may cause or that causes excessive vibration in any part
of the Property.
24. No Lessee, employee or invitee shall go upon the roof of the Property.
25. Lessee shall not suffer or permit smoking or carrying of lighted cigar,
pipes or cigarettes in areas designated by Lessor or by applicable
governmental rules, ordinances, regulations or agencies as non-smoking
areas.
26. Lessee shall not install, maintain or operate any vending machines upon
the Premises without Lessors written consent, which consent shall not
be unreasonably withheld, unless the Property contains vending machines
in the Building Common Areas, in which case, such consent may be denied
or withheld in Lessors sole discretion.
27. Lessee shall comply with all safety, fire protection and evacuation
regulations established by Lessor or any applicable governmental rules,
ordinances, regulations or agency.
28. Lessee and Lessees employees, agents and invitees shall not enter the
mechanical rooms, air conditioning rooms, electrical closets,
janitorial closets, or similar areas and shall not go upon the roof of
the Property without the prior written consent of Lessor.
29. Any additional services as are routinely provided to lessees, not
required by the Lease to be performed by Lessor, which Lessee requests
Lessor to perform, and which are performed by Lessor, shall be billed
to Lessee at Lessors cost plus 15% and Lessee shall pay such xxxx on
the next maturing date as an installment of Base Rental. The requests
of Lessees for building services, maintenance and repair shall be made
in writing to the Lessor and will be attended to only upon written
application at the Management Office of the Property. Employees of
Lessor shall not perform any work or do anything outside of their
regular duties, unless under special instructions from the Management
Office of the Building.
30. Lessee shall not change locks or install additional locks on doors
without the prior written consent of Lessor. Lessee shall not make or
cause to be made duplicates of keys to the Property or the Leased
Premises without the prior written consent of Lessor. All keys to the
Leased Premises shall be surrendered to Lessor upon termination of the
Lease.
27
EXHIBIT F
PAGE FOUR OF FOUR
BUILDING RULES AND REGULATIONS
31. No sign, advertisement, notice or hand xxxx shall be exhibited,
distributed, painted or affixed by Lessee, its employees or agents, on,
about or from any part of the Leased Premises or the Property without
the prior written consent of Lessor. Lessor will provide and maintain a
directory in the Property and no other directory shall be permitted.
32. Lessee shall place solid pads under all rolling chairs.
33. Lessee agrees to cooperate and assist Lessor in the prevention of
canvassing, soliciting and peddling within the Property.
34. Lessee shall comply with parking rules and regulations as may be posted
and distributed from time to time.
35. Lessee shall not place or install any window treatments without
Landlords prior written consent.
36. Lessor reserves the right to: (a) change the name and address of the
Property; (b) use the roof; (c) have pass keys to the Leased Premises;
(d) install any signs on the exterior or interior of the Property; and
(e) make changes to the common areas or other parts of the Property.
37. Lessor may prevent access to the Property by any person who in Lessors
judgment may be detrimental to the safety, character, reputation or
interest of the Property or any tenant or lessee of the Property, or
any part thereof.
38. Except as expressly permitted in the Lease, Lessee shall not use the
Leased Premises or the Property to offer or to sell any items or
services at retail price or cost without prior written approval of
Lessor. The sale of services for stenography, typewriting,
blueprinting, duplicating and similar businesses shall not be conducted
from or within the Leased Premises or the Property for the service or
accommodation of occupants of the Property without the prior written
consent of Lessor. Lessee shall not conduct any auction on the Leased
Premises nor store goods, wares, or merchandise on the Leased Premises,
except for Lessees own use.
39. Lessee, its employees, agents and invitees, and anyone else who desires
to enter the Property after normal working hours, will be required to
identify themselves and to sign in upon entry and sign out upon
leaving, giving their location during their stay and their time of
arrival and departure. Property will normally be open for business form
7:00 a.m. until 6:00 p.m. daily, Monday through Friday, and from 8:00
a.m. until 1:00 p.m. on Saturdays, holidays excepted.
40. Lessee must obtain Lessors prior written approval for installation of
any solar screen material, window shades, blinds, drapes, awnings,
window ventilators, or other similar equipment and any window treatment
of any kind whatsoever. Lessor will control all internal lighting that
may be visible from the exterior of the Property and shall have the
right to change any unapproved lighting, without notice to Lessee, at
Lessees expense.
28
EXHIBIT H
CORPORATE RESOLUTION
The undersigned, as secretary of the corporation named below, does
hereby certify that at a special meeting of the board of directors of the
corporation, duly called and held on the , day of ________ 20___ at which a
quorum of the directors were present and acting through out the following
resolutions were unanimously adopted and are still in force and effect:
RESOLVED that the president or the vice president of the corporation
shall be authorized to execute a lease for office space on behalf of the
corporation and/or to guarantee performance of a lease for office space,
described below:
Date of Lease:
-----------------------------------------------------
Lessor: HSO Corporate Drive Limited Partnership
-----------------------------------------------------
Lessee: Enerteck Chemical Corp.
-----------------------------------------------------
Building Name: THE ATRIUM BUILDING
-----------------------------------------------------
Suite No.: Suite #293
----------------------------------------------------
Address: 00000 Xxxxxxxxx Xxxxx
-----------------------------------------------------
Xxxx/Xxxxx/Xxx Xxxxxxxx, Xxxxx, 00000
-----------------------------------------------------
RESOLVED FURTHER, that the president or vice president shall be
authorized on behalf of the Corporation to execute and deliver to the Lessor
thereunder all instruments reasonably necessary for such lease. Lessor under
such lease shall be entitled to rely upon the above resolutions until the board
of directors of the corporation revokes, alters, or countermands same in written
form, certified by the secretary of the corporation, and deliver same, certified
mail, return receipt requested, to the Lessor, Said corporation is duly
organized and is in good standing under the laws of the State of Texas.. The
undersigned further certifies that on the meeting date referred to above, the
names and respective titles of the officers of the corporation were as follows:
------------------------------------- --------------------------------
------------------------------------- --------------------------------
WITNESS MY HAND this day of , 20 .
---------------- ------------- --------
Enerteck Chemical Corp.
---------------------------------------
Type name of corporation
S/s
Signature of secretary of corporation
Xxx Xxxxxxxx
---------------------------------------
Printed Name
THE STATE OF________________
COUNTY OF___________________
This instrument was acknowledged before me on _____________, ____ 2001,
by ___________________, Secretary of ___________________________________, Inc.,
a ___________corporation, on behalf of said corporation.
Notary Public in and
for the State of _______________
(INK STAMP NOTARY SEAL)
-----------------------------
-----------------------------
Name: (Printed or Typed)
My Commission Expires:_______
29
EXHIBIT I
RENEWAL OPTION
(MARKET)
Intentially Left Blank.
30
EXHIBIT J
SPECIAL PROVISIONS
Intentially left blank.
31
