EXHIBIT 10.42
STANDARD SHOPPING CENTER LEASE
This Lease made this 31st day of December, 1997, The Xxxxxxx Xxxxxxx Trust
(hereinafter "Landlord") and X. Xxxxxxxxxxxx Enterprises Inc. , (hereinafter
"Tenant", whether one or more).
Witnesseth:
In consideration of the rents, covenants and agreements herein set forth,
Landlord and Tenant enter into the following agreement:
1. LEASE OF PREMISE. Landlord hereby Leases to Tenant, and Tenant hereby
----------------
rents from Landlord, space D 107 and 108 in the Alto Mesa Shopping Center ("the
Center"), located at 0000 X. Xxxx Xx Xxxx, XX. 00000, said location being more
-----------
particularly described in Exhibit "A" attached hereto. The space Leased
hereunder is outlined on Exhibit "A" (herein called "the premise"), width a
front with of approximately 40 feet, and a depth of approximately 50 feet,
measured to the Center line of all party walls, to the exterior face of all
other walls, and to the building line where there is no wall, containing
approximately 2,000 square feet (the actual number of square feet, when the
Premises are completed, being herein called "the Store Area").
2. TERM. The term of this Lease shall be for 24 months, commencing on
----
the 1st day of February, 1998 (the "Commencement Date") and ending 24 months
from that date unless terminated earlier as herein provided, except that in the
event that the Commencement date is a date other than the first day of a
calendar month, said term shall extend for 24 months in addition to the
remainder of the calendar month following the Commencement Date.
3. RENT.
----
3.1. BASE RENT. Tenant shall pay base rent to Landlord for the Premises
---------
as follows: ($1,400.00 per month), one thousand four hundred and 00/100. per
month until the end of the Lease Term, which totals $ 33, 600.00 over the Term
of the Lease. Said monthly base rental shall be paid in accordance with
Paragraph 5.1 hereof.
4. SECURITY DEPOSIT. Concurrently with Tenant's execution to this Lease,
----------------
Tenant shall deposit with Landlord of $1,400.00 which shall be held by Landlord
in accordance with Paragraph 6.
5. RENT PAYMENTS.
-------------
5.1. BASE RENT. Said monthly rent shall be paid in advance on the first day
---------
of each month of the Term, with proration to occur for any partial month if the
Commencement Date is other than on the first day of a calendar month. All
rentals to be paid by Tenant to Landlord shall be in lawful money of the United
States of America and shall be paid without deduction or offset, prior notice,
or demand, on or before the first day of each and every month during the Term
hereof, and at such a place or places as may be designated from time to time by
Landlord.
5.2. TENANT'S SHARE. For purposes of this Lease, the term "Tenant's Share"
--------------
shall mean the fraction, the numerator of which is the Store Area and the
denominator of which is the total number of square feet of rentable space in the
Center.
5.3. OBLIGATION TO PAY RENT. Tenant's obligation to pay rent under this
----------------------
Lease is an independent covenant and no act or circumstance, regardless of
whether such act or circumstance constitutes a breach of this Lease by Landlord,
shall release Tenant of its obligation to pay rent as required by this Lease.
6. SECURITY DEPOSIT. Concurrently with Tenant's execution of this Lease,
----------------
Tenant shall deposit with Landlord the sum of $1,400.00 which shall be held by
Landlord, without obligation for interest or segregation, as
1
security for performance of Tenant's covenants and obligations under this Lease,
it being expressly understood and agreed that such deposit is not an advance
rental deposit or a measure of Landlord's damages in case of Tenant's default.
Upon the occurrence of any default by Tenant, Landlord may, without prejudice to
any other available remedy, use such fund to make good any rent arrearage or any
other demand the amount so applied in order to restore the security deposit to
its original amount. If Tenant is no later than thirty (30) days from the date
of termination of this Lease.
7. LATE CHARGES. Tenant agrees to pay a late charge of ten (10) percent
------------
as additional rent for each payment due hereunder that is more than five (5)
days delinquent. In addition to said late charge, any rental or other amount due
from Tenant under this Lease which is more than thirty (30) days delinquent
shall bear interest from the date such rental or other amount was due at the
rate of eighteen (18) percent per year. Any rental and/or other payments due
hereunder returned to Landlord marked "Insufficient Funds" will entitle Landlord
to collect an additional twenty-five ($25.00) dollars from Tenant for each such
payment.
8. QUIET ENJOYMENT. Landlord conveys and agrees that upon Tenants' paying
---------------
rent and performing all of the covenants and conditions set forth in this Lease,
Tenant shall, subject to all easements, rights-of-way, and prescriptive rights,
and all presently recorded instruments which affect the Premises, peaceably and
quietly have, hold and enjoy the Premises for the term provided in this Lease.
9. CONDUCT OF BUSINESS OF TENANT.
-----------------------------
9.1. USE OF PREMISES. The Premises shall be occupied and used by Tenant
---------------
solely for the purpose of conducting therein the business of audio/visual
systems installation and rental. Tenant's acceptance of occupancy from Landlord
shall constitute acknowledgment by Tenant that Tenant has inspected the Premises
and the Center of which the Premises are a part and that same are suitable for
Tenant's intended use thereof as stated in this Paragraph. Tenant recognizes and
agrees that Landlord is making no warranties, expressed or implied, as to the
suitability of the premises or the Center for any particular use.
9.2. PROMPT OCCUPANCY AND USE. Tenant will occupy the Premises upon the
------------------------
Commencement Date and thereafter continuously operate and conduct in 100% of the
Premises the business permitted under Paragraph 9.1 hereof, with a full staff
and full stock of merchandise, using only such minor portions of the Premises
for storage and office purposes as are reasonably required.
9.3. CONDUCT OF BUSINESS. Such business shall be conducted:
-------------------
(a) In the Tenant's own name or under the name of:
Xxxxxxxxxxxx Audio/Visual Solutions unless another name is
previously approved in writing by the Landlord, and:
(b) In such manner as shall assure the transaction of a maximum
volume of business in and at the Premises.
9.4. OPERATION BY TENANT. Tenant covenants and agrees to the following:
-------------------
(a) Tenant shall not place or maintain any merchandise, vending
machines or other articles in any vestibule or entry of the Premises or outside
the premises.
(b) Tenant shall store garbage, trash, rubbish and other refuse in
rat-proof and insect-proof containers inside the Premises. Tenant shall remove
the same frequently and regularly, subject to direction of Landlord by such
means and methods and at such times and intervals as are designated by Landlord,
all at Tenant's cost.
(c) Tenant shall not permit any audible sound system or objectionable
visible advertising medium outside the Premises.
(d) Tenant shall keep all mechanical equipment free of vibration and
noise, and in good working order and condition.
2
(e) Tenant shall not commit or permit waste or a nuisance upon the
Premises, and shall not permit or cause odors to emanate or be dispelled from
the Premises.
(f) Tenant shall not solicit business in the Common Area nor
distribute advertising matter in or upon the Common Area.
(g) Tenant shall not permit the loading or unloading, or the parking
or standing of delivery vehicles outside any area not designated therefore, nor
permit any use of vehicles which will interfere with the use of the Common Area
in the Center nor permit its employees to park anywhere in the Center other than
those areas designated from time to time by Landlord as "employee parking
areas".
(h) Tenant shall comply with all laws, recommendations, ordinances,
rules and regulations of governmental agencies whether public or private and
other authorities and agencies, including those with authority over insurance
rates, with respect to the use or occupancy of the Premises.
(i) Tenant shall not permit any noxious, toxic or corrosive fuel or
gas, dust, dirt or fly ash on the Premises, nor place a load on any floor in the
Center which exceeds the floor load per square foot which such floor was
designed to carry.
(j) Landlord shall have the exclusive right to use all or part of
the roof, side and rear walls of the Premises for any purpose, including but not
limited to erecting signs or other structures on or over all or any part of the
same, erecting scaffolds and other aids to the construction and installation of
the same, and installing, maintaining, using, repairing, and replacing pipes,
duct, conduits and wires leading through, to or from the Premises and serving
other parts of the Center in locations which do not materially interfere with
Tenant's use of the Premises; and
(k) Tenant shall have no rights whatsoever to the exterior or
exterior walls, or the roof of the Premises or any portion of the Center outside
the Premises, except as otherwise provided in this Lease.
9.5. STORAGE. Except in emergencies, Tenant shall have in the Premises
-------
only merchandise which Tenant intends to sell at retail in or from the Premises.
9.6. SALES AND DIGNIFIED USE. No public or private auction or any fire,
-----------------------
"going out of business," bankruptcy or similar sales or auctions shall be
conducted in or from the Premises. The Premises shall not be used except in a
dignified and ethical manner consistent with the general high standards of
merchandising in the Center and not in a disreputable or immoral manner or in
violation of the national, state or local laws.
10. PARKING AND USE OF COMMON AREA AND FACILITIES.
---------------------------------------------
10.1. COMMON AREA.
-----------
10.1.1. All parking areas, access roads and facilities furnished,
made available or maintained by Landlord in or near the Center, including
employee parking areas, truck ways, driveways, loading docks, delivery areas,
package pickup stations, pedestrian sidewalks, malls (including enclosed malls),
courts and ramps, landscaped areas, retaining walls, stairways, bus stops, first
aid and comfort stations, lighting facilities, and other areas and improvements
provided by Landlord for the general use in common of Tenants and their
customers in the Center (all herein collectively called the "Common Area") shall
at all times be subject to the exclusive control and management of Landlord, and
Landlord shall have the right, from time to time, to establish, modify and
enforce reasonable rules and regulations with respect to the Common Area.
10.1.2. Landlord shall have the right, from time to time, to: (a)
change the size, location, shape and arrangement of parking areas and the other
Common Area provided, however, that size of parking areas on the Center, as
shown upon Exhibit "A", shall not be substantially reduced; (b) restrict parking
by Tenants and their employees to designated areas; (c) construct surface,
subsurface or elevated parking areas and facilities; (d) establish and/or change
the level or grade of parking surfaces; (e) enforce parking charges (by meter or
otherwise) with appropriate provisions for ticket validating; and (f) do and
perform such other acts in and to the Common Area as Landlord, in its sole
discretion reasonably applied, deems advisable for use thereof by Tenants and
their customers.
3
10.1.3. Any condemnation or taking by any public authority, or any
sale in lieu of condemnation of any or all of said parking areas located on the
Common Area shall not constitute a violation of any covenant by Landlord or
entitle Tenant to terminate this Lease nor to any abatement of rent due
hereunder.
10.2. USE OF COMMON AREA. Tenant and Tenant's business invitees, employees
------------------
and customers shall have the nonexclusive right, in common with Landlord and all
others to whom Landlord has granted or may hereafter grant rights, to use the
Common Area, subject to such reasonable regulations as Landlord may from time to
time impose, and the rights of Landlord set forth above. Tenant shall pay
Landlord, upon demand, $20.00 for each day on which a car of Tenant or a
concessionaire, employees or agent of Tenant is parked outside any area
designated by Landlord for employee parking. Tenant authorizes Landlord to cause
any such car to be towed from the Center and Tenant shall reimburse Landlord for
the cost thereof upon demand, and otherwise indemnify and hold Landlord harmless
with respect thereto. Tenant shall abide by all rules and regulations and cause
its concessionaires, officers, employees, agents, customers and invitees to
abide thereby. Landlord may at any time close temporarily all or any part of the
Common Area to make repairs or changes, to prevent the acquisition of public
rights therein, to discourage non customer parking, or for any other reasonable
purpose. Tenant shall furnish Landlord license numbers and descriptions of cars
used by Tenant and its concessionaires, officers and employees. Tenant shall not
interfere with the other Tenants' rights to use any part of the Common Area.
11. RULES AND REGULATIONS. Tenant and Tenant's agents, employees and
---------------------
invitees shall faithfully observe and comply with all reasonable rules and
regulations promulgated by the Landlord for the safety, care or cleanliness of
the Center, and for the preservation of good order therein. Landlord shall not
be responsible to Tenant for the nonperformance by any other Tenant or occupant
of the Center for any of the rules and regulations.
12. MAINTENANCE OF PREMISES.
-----------------------
12.1. MAINTENANCE BY LANDLORD. Landlord shall keep or cause to be kept the
-----------------------
foundations, roofs, (except for HVAC portions as provided in Section 12.2) and
structural portions of the walls of the Premises in good order, repair and
condition except damage thereto due to the acts or omissions of Tenant, Tenant's
employees, or invitees. Landlord shall commence required repairs as soon as
reasonably practical after receiving written notice from Tenant thereof. Except
as provided in this Paragraph, Landlord shall not be obligated to make repairs,
replacements or improvements of any kind upon the Premises or to any equipment,
merchandise, stock in trade, facilities or fixtures therein, all of which shall
be Tenant's responsibility.
12.2. MAINTENANCE BY TENANT. Tenant shall at all times keep the Premises
---------------------
(including all entrances and vestibules) and all partitions, windows, window
frames, molding, glass, door openers, fixtures, equipment and appurtenances
thereof (including lighting, electrical and plumbing equipment and appurtenances
and all interior and exterior heating, ventilation and air-conditioning
equipment "HVAC" systems) and all parts of the premises not required herein to
be maintained by Landlord in good order, condition and repair, in clean,
orderly, sanitary and safe condition. Damage by unavoidable casualty excepted
including but not limited to doing such things as necessary to cause the
Premises to comply with applicable laws, rules, regulations and orders of
governmental and public bodies and agencies. If replacement of equipment,
fixtures and appurtenances thereto are necessary, Tenant shall replace the same
with equipment, fixtures and appurtenances of the same quality, and shall repair
all damages done in or by such replacement. If Tenant fails to perform its
obligations hereunder, Landlord without notice may, but shall not be obligated
to perform Tenant's obligations or perform work resulting from Tenant's actions
or omissions and add the costs of the same to the next installment of minimum
monthly rent due hereunder, together with interest thereon at the rate of
eighteen percent (18) per annum.
12.3. SURRENDER OF PREMISES. At the termination of this Lease, Tenant shall
---------------------
surrender the Premises in the same condition as they were on the Commencement
Date, reasonable wear and tear excepted, and deliver all keys for, and all
combinations on locks, safes and vaults in the Premises to Landlord.
12.4. FIRE EXTINGUISHERS. Tenant agrees to supply and maintain at its own
------------------
expense any fire extinguishers or other fire prevention equipment required by
law, rules, orders, ordinances, and regulations of city,
4
county, or state in which the Premises are located and/or required by any
underwriters association, bureau, or any other similar body having jurisdiction
involving the Premises.
13. ALTERATIONS, FIXTURES AND SIGNS.
-------------------------------
13.1. ALTERATIONS. Tenant will not paint, decorate or change the
-----------
architectural treatment or any part of the exterior of the Premises, nor any
part of the interior of the Premises visible from the exterior, without
Landlord's prior written approval thereto, and will promptly remove any paint,
decoration, alteration, addition or changes applied or installed without
Landlord's approval or take such other action with respect thereto as Landlord
directs. Tenant will install and maintain at all times merchandise displays in
any show windows on the Premises subject to the other provisions of this
Paragraph. The arrangement, style, color and general appearance thereof of
displays in the interior of the Premises which are visible from the exterior
including, but not limited to, window displays, advertising matter, signs,
merchandise and store fixtures shall be maintained in keeping with the character
and standards of the Center. Tenant shall not make any structural alterations,
additions or changes to the Premises. If Landlord grants consent to any
requested alterations, the alterations shall be performed in a good and
workmanlike manner in accordance with all applicable legal requirements and any
restrictions which may be imposed by landlord as a condition to its consent.
13.2. FIXTURES. All fixtures installed by Tenant shall be new or completely
--------
reconditioned.
13.3. REMOVAL AND RESTORATION BY TENANT. All alterations, changes and
---------------------------------
additions and all improvements, including Leasehold improvements made by Tenant,
or made by Landlord on Tenant's behalf (all such items collectively referred to
as "Tenant's Additions"), whether or not paid for wholly or in part by Landlord,
shall remain Tenant's properly for the term of this Lease. Tenant's Additions
(but not including items used primarily in the conduct of Tenant's business and
commonly considered "trade fixtures") shall immediately upon the termination of
this Lease become Landlord's property, be considered part of the premises, and
not be removed at or prior to the end of the term of this Lease without
Landlord's prior written consent. Upon termination of the Lease, Tenant shall
remove its trade fixtures and shall repair any damages to the Premises caused
thereby.
13.4. TENANT SHALL DISCHARGE ALL LIENS. Tenant shall promptly pay all
--------------------------------
contractors and materialmen and will not permit or suffer any lien to attach to
the center or any part thereof, and indemnify and save harmless Landlord against
the same. Landlord shall have the right to require Tenant to furnish a bond or
other indemnity satisfactory to Landlord prior to the commencement of any work
by Tenant on the Premises, or if any lien attaches or is claimed, to require
such a bond or indemnity in addition to all other remedies. Tenant shall
discharge any such lien within ten (10) days of the filing thereof.
13.5. CENTER SIGN. Landlord may install a Center sign, which will be
-----------
changed, altered or modified either through an electrical or computerized method
or manually, for the purpose of promotional advertising for seasonal items,
specials and the like, hereinafter referred to as the "Center Sign". Should
Landlord install a Center Sign, Landlord may, at its option and conditioned on
the availability of space on such a sign, to allow Tenant to use the Center
Sign. If space on the Center Sign is used by Tenant, Tenant shall pay to
Landlord, as additional rent, the monthly sum of $ N/A for said use. Landlord
reserves the right to increase said amount if Landlord determines an increase is
necessary to cover its expense in operating the Center sign. Tenant agrees to
pay any such increase upon demand by Landlord.
13.6. SIGNS, AWNINGS, AND CANOPIES. Tenant will not place or permit on any
----------------------------
exterior door or window or any wall of the Premises or otherwise, any sign,
awning, canopy, advertising matter, decoration, lettering or other items of any
kind which does not comply with the Sign Criteria set forth in Exhibit "B"
attached hereto.
14. PERSONAL PROPERTY TAXES. During the term of this Lease, Tenant shall
-----------------------
pay prior to delinquency all taxes assessed against and levied upon fixtures,
furnishings, equipment and all other personal property of Tenant contained in
the Premises.
5
15. UTILITIES. Tenant agrees to pay all utilities, before delinquency,
---------
(including, but not limited to, water, sewer, power, electricity, telephone,
garbage removal, water meter charges and hookup or connection fees or charges)
which may accrue with respect to the Premises during the term of this Lease,
regardless of whether the same be charged or assessed at a flat rate, measured
by separate meters or prorated by the utility company or Landlord. Additionally,
Tenant shall pay to Landlord, as additional rent, upon demand, Tenant's share of
any utilities which are not separately metered in the event that Landlord incurs
any such expenses for the benefit of Tenant. Tenant agrees to reimburse Landlord
for the entire cost thereof promptly upon demand. Landlord shall in no event be
liable to Tenant for any interruption in the service of any such utilities to
the Premises, howsoever such interruption may be caused and this Lease shall
continue in full force and effect despite any such interruptions.
16. INSURANCE.
---------
16.1. LANDLORD'S OBLIGATION. Landlord shall procure and maintain at its own
---------------------
expense during the term of this Lease, all risk property and general liability
insurance coverage on the buildings and Common Areas in the Center as Landlord
deems appropriate.
16.2. TENANT'S OBLIGATION.
-------------------
16.2.1. ALL RISK PROPERTY AND GENERAL LIABILITY. Tenant, as
---------------------------------------
additional rent shall pay to Landlord an amount equal to Tenant's Share of all
premiums paid by Landlord for all risk property and general liability insurance
on the buildings in the Center as described in Paragraph 16.1. Tenant's share of
premiums paid is payable as additional rent in accordance with Paragraph 5.3.
16.2.2. PLATE GLASS. Tenant, during the term of this Lease, shall
-----------
carry full coverage insurance on all plate glass in the Premises and cause the
same to be replaced if chipped, cracked or broken.
16.2.3. LIABILITY. Tenant shall procure and maintain a policy or
---------
policies of insurance, insuring both Landlord and Tenant, against all claims,
damages, or actions arising out of or in connection with Tenant's use or
occupancy of the Premises or by the condition of the Premises, the limits of
such policy or policies to be in an amount not less than $500,000.00 per
occurrence and in an amount not less than $1,000,000.00 in the general aggregate
for bodily injury and property damage. Said policy or policies shall
additionally include Fire Legal liability insurance coverage in the maximum
allowable amount.
16.2.4. PERSONALTY COVERAGE. Tenant also agrees to carry insurance
-------------------
against fire and such other risks as are from time to time included in standard
extended coverage insurance for the full insurable value covering all of
Tenant's merchandise, trade fixtures, furnishings, wall coverings, floor
coverings, carpeting, drapes, equipment and all items of personal property of
Tenant located on or within the Premise. Such policy or policies shall contain
an endorsement in favor of Landlord, waiving such insurance company's rights of
subrogation against Landlord. All property of Tenant kept in the Premises shall
be so kept at Tenant's risk only.
16.2.5. CONSTRUCTION LIABILITY. Tenant, at its own cost and expense,
----------------------
shall obtain and maintain (to the extent reasonably procurable) at all times
when demolition, excavation, or construction is in progress on the Premises,
construction liability insurance with responsible insurance companies duly
authorized to contract business in Texas and approved by Landlord, with limits
of not less than $500,000.00 for property damage insurance and liability per
occurrence and $1,000,000.00 in the general aggregate for bodily injury and
property damage, protecting Landlord and Tenant as well as such other person or
persons as Tenant may designate against any and all liability for injury or
damage to any person or property in any way arising out of such demolition,
excavation, or construction work.
16.2.6. FORM OF INSURANCE. All policies required of Tenant hereunder
-----------------
shall: (i) be issued by a reputable insurance company qualified to do business
in the state where the Premises are located; (ii) shall name Landlord as an
additional insured and Tenant as the named insured; (iii) shall provide that
they cannot be canceled for any reason unless Landlord is given forty-five (45)
days prior written notice by the insurer. A duly executed certificate of
insurance shall be delivered to Landlord at least ten (10) days prior to the
expiration of the respective
6
policy terms. Landlord shall have the right to review said insurance amounts at
least yearly during the term of this Lease and require Tenant to increase said
insurance policies to provide coverage in such amounts as Landlord, in its sole
discretion deems necessary. Tenant agrees to procure and maintain said increased
insurance coverage.
16.3. MUTUAL WAIVER OF SUBROGATION RIGHTS. Landlord and Tenant and all
-----------------------------------
parties claiming under them mutually release and discharge each other from all
claims and liabilities arising from or caused by any casualty or hazard covered
by valid and collectible insurance on the Premises, and waive any right of
subrogation which might otherwise exist in or accrue to any person on account
thereof; provided that such release shall not operate in any case where the
effect is to invalidate such insurance coverage. This release shall apply even
if the loss or damage shall be caused by the fault or negligence of a party
hereto or for any person for which such party is responsible.
16.4. WAIVER. Landlord, its agent or employees shall not be liable, and
------
Tenant waives all claims for damages (except claims caused by or resulting from
the gross negligence or willful misconduct of Landlord, its agents or
employees), including but not limited to consequential damages to person,
property or otherwise sustained by Tenant or any person claiming through Tenant
resulting from any accident or occurrence in or upon any part of the Premises or
the Center, including but not limited to, claims for damage resulting from: (a)
any equipment or appurtenances becoming out of repair; (b) Landlord's failure to
keep any part of the Center or Premises in repair; (c) injury done or caused by
wind, water, or other natural elements; (d) any defect in or failure of
plumbing, heating, and air conditioning equipment, electric wiring or
installation thereof, gas, water and steam pipes, stairs, porches, railings or
walks; (e) broken glass; (f) the backing up any sewer pipe or down spout; (g)
the bursting, leaking or running of any tank, tub, washstand, water, snow, or
ice upon the Premises; (h) the falling of any fixture, plaster or stucco, (i)
damage to or loss by theft or otherwise of property of Tenant or others; (J)
acts or omissions of persons in the Premises, other Tenants in the Center,
occupants of nearby properties, or any other persons; (k) any act or omission of
owners of adjacent or contiguous property; (l) any fire or casualty and (m) any
act of public enemy, criminal conduct, insurrection or war. All property of
Tenant kept in the Premises shall be so kept at Tenant's risk only and Tenant
shall save Landlord harmless from claims arising out of damage to the same.
17. RIGHT OF ENTRY. Landlord, its agents and employees, shall have the
--------------
right to enter the Premises from time to time at reasonable times to examine the
Premises, to show them to prospective purchasers and other persons and to make
such repairs, alterations, improvements or additions as Landlord deems
desirable. Rent shall in no wise xxxxx while any such repairs, alterations,
improvements or additions are being made. During the last six (6) months of the
term of this Lease, Landlord may exhibit the Premises to prospective Tenants and
maintain upon the Premises notices deemed advisable by Landlord. In addition,
during any apparent emergency, Landlord, its agents and employees, may enter the
Premises forcibly without liability therefore and without in any manner
affecting Tenant's obligations under this Lease. Nothing herein contained
however, shall be deemed to impose upon Landlord any obligation responsibility
or liability whatsoever for any care, maintenance or repair except as otherwise
herein expressly provided.
18. INDEMNIFICATION. Tenant shall indemnify and save harmless Landlord
---------------
from and against any and all liability, liens, claims, demands, damages,
expenses, fees, costs, fines, penalties, suits, proceedings, actions and causes
of action of any and every kind and nature arising or growing out of or in any
way connected with Tenant's use, occupancy, management or control of the
Premises or Tenant's operations, conduct or activities in the Center. Tenant
authorizes Landlord (although expressly recognizing that Landlord is under no
obligation to do so) to defend, settle or compromise any claims, demands, suits,
proceedings or the like which may represent an indemnifiable obligation of
Tenant hereunder. Such action or inaction by Landlord shall in no way effect
Tenant's indemnity obligations as provided herein.
19. SUBORDINATION AND ATTORNMENT. Tenant accepts this Lease subject and
----------------------------
subordinate to any mortgage, deed of trust, or other lien presently existing on
the Premises or the Center as a whole, and to any renewals and extensions
thereof; but, Tenant agrees that any such mortgagee shall have the right at any
time to subordinate such mortgage, deed of trust, or other lien to this Lease.
Landlord is hereby irrevocably vested with full power and authority to
subordinate this Lease to any mortgage, deed of trust, or other lien hereafter
placed on the Premises or the Center as a whole and Tenant agrees on demand to
execute such further instruments subordinating
7
this Lease as Landlord may request, provided such subordination shall be on the
express condition that this Lease shall be recognized by the mortgagee and that
the rights of Tenant shall remain in full force and effect during the term of
this Lease so long as Tenant shall continue to perform all of the covenants and
conditions of this Lease. Tenant covenants and agrees that upon foreclosure of
any deed of trust, mortgage or other instrument of security and the sale of the
Premises or Center pursuant to any such document, to attorn to any purchaser at
such a sale and to recognize such purchaser as the Landlord under this Lease.
The agreement of Tenant to attorn to any purchaser pursuant to such a
foreclosure sale or trustee's sale in the preceding sentence shall survive any
such sale.
20. ESTOPPEL CERTIFICATE. Tenant shall at any time, upon the request of
--------------------
Landlord, execute, acknowledge and deliver to Landlord a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
modified stating the nature of such modification and certifying that the Lease
as modified is in full effect), the dates to which the rent and other charges
are paid in advance, if any, and acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults if any are claimed. The parties agree that any such statement may
be relied upon by any prospective purchaser or encumbrance of all or any portion
of the Center. Tenant's failure to deliver such statement within ten (10) days
after Landlord's request for the same, shall be conclusive upon Tenant that: (i)
this Lease is in full force and effect; (ii) there are no uncured defaults in
Landlord's performance and (iii) not more than one month's rent or other charge
has been pain in advance.
21. DAMAGE AND DESTRUCTION. If the Premises are hereafter damaged or
----------------------
destroyed or rendered partially untenantable for their accustomed use by fire or
other casualty insured under the coverage which Landlord is obligated to carry
hereunder, Landlord shall promptly repair the same to substantially the
condition which they were in immediately prior to the happenings or such
casualty (excluding stock in trade, fixtures furniture, furnishings, carpeting,
floor covering, wall covering, drapes and equipment). From the date of such
casualty, until the Premises are so repaired and restored, the monthly rent
payments hereunder shall xxxxx in such proportion as the part of said Premises
thus destroyed or rendered untenantable bears in the total Premises; provided
however, that Landlord shall not be obligated to repair and restore if such
casualty is caused directly or indirectly by the negligence of Tenant, its
agents or employees; and provided further, that Landlord shall not be obligated
to expend for such repair or restoration an amount in excess of the insurance
proceeds recovered as a result of such damage. Notwithstanding that above, if
the Premises are wholly or partially damaged, destroyed or rendered untenantable
for their accustomed use by fire or other casualty then Landlord shall have the
right to terminate this Lease effective as of the date of such casualty by
giving Tenant, within sixty (60) days after the happening of such casualty,
written notice of such a termination if such notice is given, this Lease shall
terminate and Landlord shall promptly repay to Tenant any rent paid in advance
which was not earned at the date of such a casualty. If said notice is not given
and Landlord is required or elects to repair or restore the Premises as herein
provided, then Tenant shall promptly repair or replace its stock in trade
fixtures, furnishings, furniture, carpeting, wall covering, floor covering,
drapes and equipment to the same condition as they were in immediately prior to
the casualty and, if Tenant has closed its business, Tenant shall promptly
reopen for business upon the completion of such repairs.
22. EMINENT DOMAIN.
--------------
22.1. EMINENT DOMAIN. If 10% or more of the Premises or 15% or more of the
--------------
Center shall be acquired or condemned by right of eminent domain for any public
or quasi-public use or purpose then Landlord at its election may terminate this
Lease by giving notice to Tenant of its election, and in such event, rentals
shall be apportioned and adjusted as of the date of termination. If the Lease
shall not be terminated as aforesaid, then it shall continue in full force and
effect, and Landlord shall within a reasonable time after possession is
physically taken (subject to delays due to shortage of labor, materials or
equipment, labor difficulties, breakdown of equipment, governmental
restrictions, fires, other casualties or other causes beyond the reasonable
control of Landlord) to repair or rebuild what remains of the Premises for
Tenant's occupancy, and a just proportion of the rent shall be abated, according
to the nature and extent of the injury to the Premises, until such repairs and
rebuilding are completed, and thereafter for the balance of the term of this
Lease.
22.2. DAMAGES. Landlord reserves and Tenant assigns to Landlord, all rights
-------
to damages on account of any taking or condemnation or any act of any public or
quasi-public authority for which damages are payable.
8
Tenant shall execute such instruments of assignment as Landlord requires, join
with Landlord in any action for the recovery of damages if requested by
Landlord, and turn over to Landlord any damages recovered in any proceeding. If
Tenant fails to execute instruments required by Landlord, or undertakes such
other steps as requested, Landlord shall be deemed the duly authorized
irrevocable agent and attorney-in-fact of Tenant to execute such instruments and
undertake such other steps on behalf of Tenant. However, Landlord does not
reserve any damages payable for trade fixtures installed by Tenant at its own
cost which are not part of the realty.
23. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease or any
-------------------------
interest therein, whether voluntarily, by operation of law, or otherwise, and
shall not sublet the Premises or any part thereof except by written permission
and consent of Landlord being first had and obtained. Consent of Landlord to any
such assignment or subletting shall not be unreasonably withheld if: (i) at the
time of such assignment or subletting Tenant is not in default in the
performance and observance of any of the covenants and conditions of this Lease;
(ii) the assignee or subtenant of Tenant shall expressly assume in writing all
of Tenant's obligations hereunder; (iii) Tenant shall provide proof to Landlord
that the assignee or subtenant has a financial condition which is satisfactory
to Landlord and Landlord's lender; (iv) the Premises continue to be used solely
for the purpose set forth in Paragraph 9.1; (v) in Landlord's opinion the
proposed operation of the prospective assignee or subleasee will generate
percentage rental at Lease equal that currently paid by Tenant; (vi) the
assignee or subtenant is, in Landlord's opinion, capable of operating such
business; and (vii) the assignee or subtenant agrees to pay such additional
rent, if any, as Landlord desires to charge. In connection with any such
assignment or sublease, Tenant or the assignee or subtenant of Tenant shall pay
to Landlord any legal and administrative costs incurred by Landlord in approving
such assignment or subletting, not to exceed $1,000.00. Any such assignment or
sublease, even with the approval of Landlord, shall not relieve Tenant from
liability for payment of all forms of rental and other charges herein provided
or from the obligations to keep and be bound by the terms, conditions and
covenants of this Lease. The acceptance of rent from any other person shall not
be deemed to be a waiver of any of the provisions of this Lease or a consent to
the assignment or subletting of the premises. Consent to any assignment or
subletting shall not be deemed a Consent to any future assignment or subletting.
Any merger, consolidation or transfer of corporate shares of Tenant, if Tenant
is a corporation, so as to result in a change in the present voting control of
the Tenant by the person or persons owning a majority of said corporate shares
on the date of this Lease, shall constitute an assignment and be subject to the
conditions of this Paragraph. If Tenant is a general partnership having one or
more corporations as partners, the provisions of the proceeding sentence shall
apply to each of such corporations as if such corporation alone had been the
Tenant hereunder. Moreover, in the event that the rental due and payable by a
sublessee or a combination of the rental payable under such sublease plus any
bonus or other consideration therefore or incident thereto exceeds the rent
payable under this Lease or if with respect to a permitted assignment, permitted
licenses or other transfer by Tenant permitted by Landlord, the consideration
payable to Tenant by the assignee, licensee or other transferee exceeds the
rental payable under this Lease, then Tenant shall be bound and obligated to pay
Landlord all such excess rental and other excess consideration within ten (10)
days following receipt thereof by Tenant from such sublessee, assignee, licensee
or other transferee as the case may be. Finally in the event of any assignment
or subletting it is understood and agreed that all rentals paid to Tenant by an
assignee or sublessee shall be received by Tenant in trust for Landlord, to be
forwarded immediately to Landlord without reduction of any kind, and upon
election by Landlord such rentals shall be paid directly to Landlord.
24. LANDLORD'S PERFORMANCE FOR ACCOUNT OF TENANT. If the Tenant shall
--------------------------------------------
continue in default in the performance of any of the covenants or agreements
herein contained after the time limit for the curing thereof, then Landlord may
perform the same for the account of Tenant. Any amount paid or expense or
liability incurred by Landlord in the performance of any such matter for the
account of Tenant shall be deemed to be additional rent and the same (together
with interest thereon at the rate of eighteen percent (18%) per year from the
date upon which any such expense shall have been incurred) may, at the option of
Landlord, be added to any rent then due, or thereafter falling due hereunder.
25. DEFAULT BY TENANT.
-----------------
25.1. EVENTS OF DEFAULT. The following shall be considered for all purposes
-----------------
to be events of default under and a breach of this Lease: (a) any failure of
Tenant to pay any rent or other amount when due hereunder; (b) any failure by
Tenant to perform or observe any other of the terms, provisions, conditions and
covenants of this
9
Lease for more than ten (10) days after written notice of such failure; (c)
Landlord determining that Tenant has submitted any false report required to be
furnished hereunder; (d) if Tenant shall do anything upon or in connection with
the Premises or the construction of any part thereof which directly or
indirectly interferes in any way with or results in a work stoppage in
connection with construction of any part of the Center or any other Tenant's
space; (e) Tenant shall become bankrupt or insolvent, or file or have filed
against it a petition in bankruptcy or for reorganization or arrangement or for
the appointment of a receiver or trustee of all or a portion of Tenant's
property, or Tenant makes an assignment for the benefit of creditors; (f) if
Tenant abandons, vacates or does not do business in the Premises for ten (10)
days; (g) this Lease, Tenant's interest herein or in the Premises, any
improvements thereon, or any property of Tenant is executed upon or attached; or
(h) the Premises comes into the hands of any person other than expressly
permitted under this Lease.
25.2. LANDLORD'S REMEDIES. Upon the occurrence of any event of default
-------------------
specified in this Lease, Landlord, without a grace period, demand or notice (the
same being hereby waived by Tenant, and in addition to all other rights or
remedies Landlord may have for such default, shall have the right to pursue any
one or more of the following remedies:
(a) Thereupon or any time thereafter, change the locks of the
Premises in accordance with Paragraph 25.3:
(b) Terminate this Lease in which event Tenant shall immediately
surrender the Premises to Landlord and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearage in rent, enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying said Premises or any
part thereof, by force if necessary, without notice or the need to resort to
legal process and without being deemed guilty of trespass or becoming liable for
any loss or damage occasioned thereby; and Tenant agrees to pay to Landlord on
demand the amount of all loss and damages which Landlord may suffer by reason of
such termination, whether through inability to relet the Premises on
satisfactory terms or otherwise, including the loss of rental for the remainder
of the Lease term;
(c) Without terminating this Lease, enter upon and take possession
of the Premises, and expel or remove Tenant and any other person who may be
occupying said Premises, or any part thereof, by force if necessary, without
notice or the need to resort to legal process and without being deemed guilty of
trespass or becoming liable for any loss or damage occasioned thereby. Landlord
may make such alternations and repairs as it deems advisable to relet the
Premises and relet the Premises or any part thereof for such term or terms
(which may extend beyond the term of this Lease) and at such rentals and upon
such other terms and conditions as Landlord in its sole discretion deems
advisable. Upon each such reletting all rentals received by Landlord therefrom
shall be applied first to any indebtedness other than rent due hereunder from
Tenant to Landlord; second, to pay any costs and expenses of reletting including
brokers and attorney's fees and costs of alterations and repairs; third, to rent
due hereunder; and fourth, the residue, if any, shall be held by Landlord and
applied in payment of future rent as it becomes due hereunder. If rentals
received from such reletting during any month are less than that to be paid
during that month by Tenant hereunder, Tenant shall immediately pay any such
deficiency to Landlord. No reentry or taking possession of the Premises by
Landlord shall be construed as an election to terminate this Lease unless a
written notice of such termination is given by Landlord to Tenant.
Notwithstanding any such reletting or reentry or taking possession, without
termination, Landlord may at any time thereafter terminate this Lease for any
prior breach or default. Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the other remedies herein provided or any other
remedy provided by law, nor shall the pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Landlord hereunder or of
any damages accruing to Landlord. If Landlord terminates this Lease for any
breach or default by Tenant, in addition to all other remedies provided by law
to which Landlord may be entitled, Landlord may recover from Tenant all damages
incurred by reason of such breach or default, including, without limitation, all
costs of retaking the Premises and the total rent and charges reserved in this
Lease for the remainder of the term of this Lease, all of which shall be
immediately due and payable by Tenant to Landlord.
25.3. LOCKOUT PROVISIONS. Upon the occurrence of an event of default under
------------------
the Lease, Landlord shall be entitled to change the locks of the Premises.
Tenant agrees that entry may be gained for that purpose through use
10
of a duplicate or master key or any other peaceable means, that same may be
conducted out of the presence of Tenant if Landlord so elects, that no notice
shall be required to be posted by the Landlord on any door to the Premises (or
elsewhere) disclosing the reason for such action or any other information and
that Landlord shall not be obligated to provide a key to the changed lock to
Tenant unless Tenant shall have first:
(1) Brought current all payments due to Landlord under this
Lease; provided, however, that if Landlord has theretofore formally and
permanently repossessed the Premises or has terminated this Lease, then Landlord
shall be under no obligation to provide a key to the new lock(s) to Tenant
regardless of Tenant's payment of past-due rent or other past-due amounts,
damages, or any other payment or amounts of any nature or kind whatsoever.
(2) Fully cured and remedied to Landlord's satisfaction all
other defaults of Tenant under this Lease (but if such defaults are not subject
to cure, such as early abandonment or vacation of the Premises, then Landlord
shall not be obligated to provide the new key to Tenant under any
circumstances); and
(3) Given Landlord security and assurances satisfactory to
Landlord that Tenant intends to and is able to meet and comply with its future
obligations under this Lease, both monetary and non monetary.
Landlord will, upon written request by Tenant, at Landlord's
convenience and upon Tenant's execution and delivery of such waivers and
indemnifications as Landlord may require, at Landlords option either (i) escort
Tenant or its specifically authorized employees or agents to the Premises to
retrieve personal belongings and effects of Tenant's employees (as opposed to
property which is an asset of Tenant or any guarantor), and property of Tenant
that is not subject to the Landlord's liens and security interests described
herein or (ii) obtain from Tenant a list of such property described (i) above,
the arrange for such items to be removed from the Premises and made available to
Tenant at such place and at such time in or about the Premises or the Center as
Landlord may designate; provided, however, that if Landlord elects option (ii),
then Tenant shall be required to pay in cash, in advance to Landlord (a) the
estimated costs that Landlord will incur in removing such property from the
Premises and making same available to Tenant at the stipulated location, and (b)
all moving and/or storage charges theretofore are to be incurred by Landlord
with respect to such property. The provisions of this Paragraph 25.3 are
intended to override and supersede any conflicting provisions of the Texas
Property Code (including, without limitation, Chapter 93 thereof, and any
amendments or successor statutes thereto), and of any other law, to the maximum
extent permitted by applicable law.
26. LANDLORD'S LIEN. To secure the performance of Tenant's obligation
---------------
under this Lease, Tenant, as Debtor, and referred to in this Paragraph as
"Debtor", hereby grants to Landlord, as "Secured Party", a security interest in
and an express contractual lien upon all of Debtors equipment, furniture,
furnishings, appliances, goods, trade fixtures, inventory, chattels, and other
personal property of Debtor which is now on the Premises or which is placed on
the Premises at some later date, and all proceeds from such items. This property
shall not be removed from the Premises without the consent of the secured party
under this Lease, until this Lease has been paid and discharged, and all the
covenants, agreements, and conditions of this lease have been fully complied
with and performed by Debtor. Secured Party is authorized and Debtor hereby
irrevocably and throughout the term of this Lease (and any extensions or
renewals thereof) appoints Secured Party as its attorney-in-fact to prepare and
file financing statements signed only by Secured Party as attorney-in-fact on
behalf of debtor covering the security described above; moreover, Debtor agrees
to sign the same upon request. Notwithstanding the foregoing, secured party is
hereby authorized to file a duplicate original or Xerox copy of this Lease as a
financing statement located as appropriate. Upon default under this Lease by
Debtor, as defined in Paragraph 25.1 hereof, any or all of debtors obligations
to secured party, secured hereby shall, at Secured Party's option, be
immediately due and payable without notice or demand. In addition to all rights
or remedies of Secured Party under this Lease and the law, including the right
to a judicial or non-judicial foreclosure, Secured Party shall have all the
rights and remedies of a secured party under the uniform commercial Code as
enacted in the State of Texas. This security agreement and the security interest
hereby created shall survive the termination of this Lease if such termination
results from debtor's default. The above-described security interest and lien
are in addition to and cumulative of the Landlord's lien provided by the laws of
the State of Texas.
11
27. WAIVER OF RIGHTS OF REDEMPTION. To the extent permitted by law,
------------------------------
Tenant waives any and all rights of redemption granted by or under any present
or future laws if Tenant is evicted or dispossessed for any cause, or if
Landlord obtains possession of the Premises due to Tenant's default hereunder or
otherwise.
28. DEFAULT BY LANDLORD. Landlord shall in no event be charged with
-------------------
default in any of its obligations hereunder unless and until Landlord shall have
failed to perform such obligations within thirty (30) days (or such additional
time as is reasonably required to correct any such default) after written notice
to Landlord by Tenant, specifically describing such failure.
29. APPLICATION OF PAYMENT RECEIVED FROM TENANT. Landlord shall have
-------------------------------------------
the right to apply any payments made by Tenant to the satisfaction of any debt
or obligation of Tenant to Landlord according to Landlord's sole discretion and
regardless of the instructions of Tenant as to application of any such sum,
whether such instructions be endorsed upon Tenant check or otherwise, unless
otherwise agreed upon by both parties in writing. The acceptance by Landlord of
a check or checks drawn by a party other than Tenant shall not affect Tenant's
liability hereunder nor shall it be deemed an approval of any assignment of this
Lease by Tenant.
30. RESTRICTIVE COVENANT. During the term of this Lease Tenant shall
--------------------
not directly or indirectly engage in any similar or competing business within a
radius of three miles from the outside boundary of the property on which the
Center is located.
31. NOTICES. All notices required to be given hereunder shall be in
-------
writing, and shall be served upon the party to be notified or upon its agent, or
shall be mailed by certified or registered mail, postage prepaid, to the
appropriate address shown below:
LANDLORD:
Xxxxxxx Xxxxxxx, Trustee
000 Xxxxxx Xxxx
Xx Xxxx, XX 00000
TENANT: Xxxxxxxxxxxx, Xxx Contact:Xxxxx Xxxxxxx
2126 Vanco Dr. Head Accountant
Irving, TX 00000 (000) 000-0000 Fax (000) 000-0000
Either party shall have the right to change its principal
office by notifying the other party of such change in accordance with this
Paragraph.
32. SALE OF PREMISES BY LANDLORD. In the event of any sale of the
----------------------------
Premises by Landlord, Landlord shall be and is hereby entirely freed and
relieved of all liability under any and all of its covenants and obligation
contained in or derived from this Lease arising out of any act, occurrence or
omission occurring after the consummation of such sale; and, the purchaser, at
such sale or any subsequent sale of the Premises shall be deemed, without any
further agreement between the parties or their successors in interest or between
the parties and any such purchaser, to have assumed and agreed to carry out any
and all of the covenants and obligations of the Landlord under this Lease.
Furthermore, in the event of a sale or conveyance by Landlord of the Premises,
or the property of which the Premises are a part, this Lease shall not be
affected by any such sale, and Tenant agrees to attorn to the purchaser thereof.
33. TITLE OF SHOPPING CENTER. Tenant shall use the name of the Center
------------------------
in all Tenant's advertising in connection with Tenant's business at the Premises
and for no other purpose, except with Landlord's prior written consent. Tenant
shall not have or acquire any interest in the name of the Center. Landlord
reserves the right to change the name, title or address of the Center or the
address of the Premises at any time, and Tenant waives all claims for damages
caused by such change.
12
34. WAIVER. No delay or omission in the exercise of any right or
------
remedy of Landlord on any default of Tenant shall impair such a right or remedy
or be construed as a waiver. The receipt and acceptance by Landlord of
delinquent rent shall not constitute a waiver of any other default; it shall
constitute only a waiver of timely payment for the particular rent payment
involved. No act or conduct of Landlord, including, without limitation, the
acceptance of the keys to the Premises, shall constitute an acceptance of the
surrender of the Premises by Tenant before the expiration of the term. Only a
written notice from Landlord to tenant shall constitute acceptance of the
surrender of the Premises and accomplish a termination of the Lease. Landlords
consent to or approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waiver or render unnecessary Landlords consent
to or approval of any subsequent act by Tenant. Any waiver by Landlord or any
default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of the Lease.
35. HOLDING OVER AND SUCCESSORS.
---------------------------
35.1. HOLDING OVER. If Tenant holds over or occupies the Premises
------------
beyond the term of the Lease (it being agreed there shall be no such holding
over or occupancy without Landlord's written consent), Tenant shall pay Landlord
for each day of such holding over, a sum equal to twice the monthly rent
applicable hereunder at the expiration of the term, prorated for the number of
days of such holding over. If Tenant holds over with or without Landlord's
written consent, Tenant shall occupy the Premises on a tenancy from month to
month and all other terms and provisions of this Lease shall be applicable to
such Period.
35.2. SUCCESSORS. All rights and liabilities herein given or imposed
----------
upon the respective parties hereto shall bind and inure to the several
respective heirs, successors, administrators, executors and assigns of the
parties and if Tenant is more than one person they shall be bound jointly and
severally by this Lease. No rights, however, shall inure to the benefit of any
assignee of Tenant unless the assignment was approved by Landlord in writing.
36. BROKERS AND FINDERS FEES. Tenant represents and warrants to
------------------------
Landlord that it has not engaged a broker or finder and that no claims for
brokerage commissions or finders' fees will arise in connection with the
execution of this Lease. Tenant agrees to indemnify Landlord against and hold it
harmless from any liability or expenses (including attorneys fees) arising from
any such claim.
37. ENVIRONMENTAL ISSUES.
--------------------
37.1. TENANT'S COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant, at Tenants
-------------------------------------------
expenses, shall comply with all laws, rules, orders, ordinances, directions,
regulations and requirements of federal, state, county and municipal authorities
pertaining to Tenants' use of the Premises and with any recorded covenants,
conditions and restrictions, regardless of when they become effective,
including, without limitation, all applicable federal, state and local laws,
regulations or ordinances pertaining to air and water quality, Hazardous
Materials (as hereinafter defined), waste disposal, air emissions and other
environmental, zoning and land use matters, and with any directive or order of
any public officer or officers, pursuant to law, which shall impose any duty
upon Landlord or Tenant with respect to the use or occupancy of the Premises,
hereinafter referred to as "Environmental Laws."
37.1.1. HAZARDOUS MATERIAL. Tenant shall not cause or permit any
------------------
Hazardous Material to be brought upon, kept or used in or about the Premises by
Tenant, its agents, employees, contractors or invitees without the prior written
consent of Landlord, which Landlord shall not unreasonably withhold, provided
Tenant demonstrates to Landlord's satisfaction that such Hazardous Material is
necessary or useful to Tenant's business and will be used, kept and stored in a
manner that complies with all laws regulating any such Hazardous Material so
brought upon or used or kept in or about the Premises.
37.2. INDEMNIFICATION. In addition to, and without limitation on the
---------------
general indemnity obligations of Tenant under Paragraph 18 of this Lease, Tenant
specifically agrees that it shall indemnify, defend and hold Landlord harmless
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses (including without limitation diminution in value of the
Premises or the Center, damages for the loss or restriction on use of rentable
or usable space or of any amenity of the Premises and sums paid in settlement of
claims, attorneys fees, consultant fees and expert fees) which arise during or
after the Lease term as a result of any breach
13
by Tenant of its obligations under this Paragraph 37, or any contamination of
the Premises or the Center resulting from the presence of Hazardous Material on
or about the Premises caused or permitted by Tenant. This indemnification of
Landlord or Tenant includes, without limitation, costs incurred in connection
with any investigation of site conditions or any clean-up, remedial, removal or
restoration work required by any federal, state, or local governmental agency or
political subdivision because of Hazardous Material present in the soil or
ground water on or under the Premises or Center. Without limiting the foregoing,
if the presence of any Hazardous Material on the Premises or Center caused or
permitted by Tenant results in any contamination of the Premises or Center.
Tenant shall promptly take all actions at its sole expense as are necessary to
return the Premises and/or Center to the condition existing prior to the
introduction of any such Hazardous Material to the Premises or Center, provided
that Landlord's approval of such actions shall first be obtained, Tenant further
agrees to defend Landlord, its agents, employees, and assigns in any
administrative or judicial proceeding commenced by private individuals or
governmental entities seeking recovery of damages for Personal injury or
property damage, or recovery of civil penalties or fines arising out of
connected with, or relating to any breach by Tenant of its obligations under
this Paragraph 37 or any contamination of the Premises or the Center resulting
from the presence of Hazardous Materials on or about the Premises or the Center
caused or permitted by Tenant. The foregoing indemnity shall survive the
expiration or earlier termination of this Lease.
37.3. HAZARDOUS MATERIAL. As used herein, the term "Hazardous Material"
------------------
means any pollutant, toxic substance, hazardous waste, hazardous material,
hazardous substance, or oil as defined in or pursuant to the Resource
Conservation and Recovery Act, as amended, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, the federal Clean Water
Act, as amended, the Safe Drinking Water Act, as amended, the Federal Water
Pollution Control Act, as amended, the Texas Water Code, as amended, the Texas
Solid Waste Disposal Act, as amended, or any other federal, state or local
environmental law, regulation, ordinance, rule, or bylaw, whether existing as of
the date hereof, previously enforced or subsequently enacted.
37.4. NOTICE OF CERTAIN EVENTS. Tenant shall immediately advise
------------------------
Landlord in writing of: (a) any governmental or regulatory actions instituted or
threatened under any Environmental Law affecting the Premises; (b) all claims
made or threatened by any third party against Tenant or the Premises relating to
damage, contribution, cost recovery, compensation loss or injury resulting from
any Hazardous Materials; (c) the discovery of any occurrence or condition on any
real property adjoining or in the vicinity of the Premises that could cause the
Premises to be classified in a manner which may support a claim under any
Environmental Law, and (d) the discovery of any occurrence or condition on the
Premises or any real property adjoining or in the vicinity of the Premises which
could subject Tenant or the Premises to any restrictions in ownership,
occupancy, transferability or use of the Premises under any Environmental Law.
Landlord may elect to join and participate in any settlements, remedial actions,
legal proceedings or other actions initiated in connection with any claims under
any Environmental Law and to have its reasonable attorney's fees paid by Tenant.
At its sole cost and expense, Tenant agrees when applicable or upon request of
Landlord to promptly and completely cure and remedy every violation of an
Environmental Law caused by Tenant or existing on or because of the Premises and
to dispose of the same as required by Environmental Laws or by Landlord.
37.5. ENVIRONMENTAL REVIEW. In the event reasonable evidence exists of
--------------------
the occurrence or existence of the violation of any Environmental Law on the
Premises, Landlord (by its officers, employees and agents) at any time and from
time to time may contract for the services of persons (the "Site Reviewers") to
perform environmental site assessments ("Site Assessments") on the Premises for
the purpose of determining whether there exists on the Premises any
environmental condition which could reasonably be expected to result in any
liability cost or expense to the Environmental Laws relating to Hazardous
Materials. The Site Reviewers are hereby authorized to enter upon the Premises
for purposes of conducting Site Assessments. The Site Reviewers are further
authorized to perform both above and below the ground this Lease is held testing
for environmental damage or the presence of Hazardous Materials on the Premises
and the Center and such other tests on the Premises or the Center as may be
necessary to conduct the Site Assessments in the reasonable opinion of the Site
Reviewers. Tenant agrees to supply to the Site Reviewers such historical and
operational information regarding the Premises as may be reasonably requested by
the Site Reviewers to facilitate the Site Assessments and will make available
for meetings with the Site Reviewers appropriate personnel having knowledge of
such matters. The results of Site Assessments shall be furnished to Tenant upon
request. The cost of Performing such Site Assessments shall be paid by Tenant.
14
38. MISCELLANEOUS.
-------------
38.1. PARTIAL INVALIDITY. If any term, covenant, condition or
------------------
provision or by account of Competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions hereof shall remain in full force
and effect and shall in no way be affected, impaired or invalidated thereby.
38.2. CAPTIONS. The various headings and numbers herein and the
--------
grouping of the provisions of this Lease into Paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
38.3. GENDER: NUMBER. Words of any gender used in this Lease shall be
---------------
held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context
otherwise requires.
38.4. APPLICABLE LAW. This Lease shall be governed by the laws of the
--------------
State of Texas.
38.5. CORPORATION AS TENANT. If a corporation executes this Lease as
---------------------
Tenant, it shall promptly furnish Landlord with certified corporate resolutions
attesting to the authority of the officers executing this Lease on behalf of
such corporation.
38.6. TIME. Time is of the essence of this Lease.
----
38.7. JOINT AND SEVERAL LIABILITY. If Tenant is a partnership or other
---------------------------
business organization, the members of which are subject to personal liability
the liability of each such member shall be deemed to be joint and several.
38.8. MORTGAGEE'S APPROVAL. If any mortgagee of the Center requires
---------------------
any modification of the terms and provisions of this Lease as a condition to
such financing as Landlord may desire, then Landlord shall have the right to
cancel this Lease if Tenant fails or refuses to approve and execute such
modification(s) thirty (30) days after Landlord's request therefore, provided
said request is made at least thirty (30) days prior to delivery of possession.
Upon such cancellation by Landlord, this Lease shall be null and void and
neither party shall have any liability for damages or otherwise to the other by
reason of such cancellation. In no event, however, shall Tenant be required to
agree, and Landlord shall not have any right of cancellation for Tenant's
refusal to agree, to any modification of the provisions of this Lease relating
to: (a) the amount of rent or other charges reserved herein; (b) the size and/or
location of the Premises; or (c) the duration and/or Commencement Date of the
term of the Lease.
38.9. ACCORD AND SATISFACTION. Landlord is entitled to accept, receive
-----------------------
and cash or deposit any payment made by Tenant for any reason or purpose or in
any amount whatsoever, and apply the same at Landlords option to any obligation
of Tenant and the same shall not constitute payment of any amount owed except
that to which Landlord has applied the same. No endorsement or statement on any
check or letter of Tenant shall be deemed an accord and satisfaction or
otherwise recognized for any purpose whatsoever. The acceptance of any such
check or payment shall be without prejudice to Landlord's right to recover any
and all amounts owed by Tenant hereunder and the Landlord's right to pursue any
other available remedy.
38.10. NO PARTNERSHIPS. Landlord does not, in any way or for any
---------------
purpose, become a partner, employer, principal, master, agent or joint venturer
of or with Tenant.
38.11. FORCE MAJEURE. If either party hereto shall be delayed or
-------------
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, labor troubles, inability to procure material, failure of
power, restrictive governmental laws or regulations, riots, insurrection, war or
other reason of a like nature, not the fault of the party delayed in performing
work or doing acts required under this Lease, the period for the performance of
any such act shall be extended for a period equivalent to the period of such
delay. Tenant shall not be excused from any obligations for payment of rent,
Percentage Rent, additional rent or any other payments required by the terms of
this Lease when same are due, and all such amounts shall be paid when due.
15
38.12. SUBMISSION OF LEASE. Submission of this Lease to Tenant does not
-------------------
constitute an offer to Lease; this Lease shall become effective only upon
execution and delivery thereof by Landlord and Tenant. Upon execution of this
Lease by Tenant, Landlord is granted an irrevocable option for sixty (60) days
to execute this Lease within said period and thereafter return a fully executed
copy to Tenant. The effective date of this Lease shall be the date filled in on
Page 1 hereof by Landlord, which shall be the date of execution by the last of
the parties to execute this Lease.
38.13. ATTORNEY'S FEES AND WAIVER OF JURY TRIAL. In the event the
-----------------------------------------
Landlord finds it necessary to retain an attorney in connection with the default
by Tenant in any of the agreements or covenants contained in this Lease, Tenant
shall pay reasonable attorney's fees to said attorney. In the event of any
litigation regarding this Lease, the losing party shall pay to the prevailing
party reasonable attorney's fees. Landlord and Tenant acknowledges the delay,
expense and uncertainty associated with a jury trial involving a complex
commercial Lease of this nature, and in recognition of these inherent problems
hereby waive their rights to a jury trial and agree that any litigation
regarding this Lease will be tried without a jury.
38.14. EXHIBITS. The exhibits listed below and attached to this Lease
--------
are incorporated herein referenced:
(a) Exhibit "A". Plot and Floor Plan to be Leased by Tenant;
----------
and Legal description of real estate to be developed for the Center.
(b) Exhibit "B". Sign Criteria applicable to Tenant.
----------
38.15. CENTER MODIFICATION. Notwithstanding anything else contained in
-------------------
this Lease, Landlord reserves the right to change or modify and add to or
subtract from the size and dimensions of the Center or any part thereof, the
number, locations and dimensions of hallways, malls, and corridors, the size,
shape and location and arrangement of Common Area, and to design and decorate
any portion of the Center it desires.
38.16. FINANCIAL STATEMENTS. Tenant shall deliver to Landlord, within
--------------------
ninety (90) days after the end of each of Tenant's fiscal years, financial
statements of Tenant, in reasonable detail and certified as complete and correct
by an authorized officer or principal of Tenant or, certified by an independent
certified public accountant if Tenant ordinarily has such statements prepared by
independent accountant or accounting firm.
38.17. ENTIRE AGREEMENT. There are no representations, covenants,
----------------
warranties, promises, agreements, conditions or undertakings, oral or written,
between Landlord and Tenant other than herein set forth. Except as otherwise
provided herein, no subsequent alteration, amendment, changes or addition to
this Lease shall be binding upon Landlord or Tenant unless in writing and signed
by them.
39. ADDITIONAL PROVISIONS:
---------------------
Signs: Lessee shall have the right, subject to Lessor's
specifications and prior written approval, to install such Signs, upon the
exterior front of the Leased Premises only, subject to any applicable laws,
ordinances and other governmental regulations and requirements. A permanent Sign
must be erected within forty-five (45) days of the Commencement Date, by the
Lessee. Lessee shall remove such Signs at the termination of this Lease. Such
installation and removal shall be done in such manner as to avoid injury,
defacement or overloading of the Leased Premises. Lessee shall not be permitted
to individually install a street-side on its behalf.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed
this Lease as of the day and year first above written.
Lessor acknowledges the receipt of the following amounts:
First months rent...................... $ 1,400.00
Security Deposit....................... $ 1,400.00
Total.................................. $ 2,800.00
16
Driver's License #________________________
Soc. Sec. #_______________________________
Fed. Tax Id #_____________________________
Landlord: Xxxxxxx Xxxxxxx, Trustee
-------------------------------------------
by: /s/ XXXXXXX XXXXXXX
---------------------------------------
Tenant:
------
signed: /s/ XXXXXX XXXXXXXXXXXX
-------------------------------------------
by: Xxxxxx Xxxxxxxxxxxx
-------------------------------------------
17
