Exhibit 10.10
-------------
00000 XXXXX XXXX LEASE AGREEMENT
BY AND BETWEEN
00000 XXXXX XXXX JOINT VENTURE GROUP
("LANDLORD")
AND
AMERICAN ECO CORPORATION
("TENANT")
page break
TABLE OF CONTENTS
ARTICLE 1. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 PREMISES . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2. . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 TERM. . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 EARLY POSSESSION. . . . . . . . . . . . . . . . . . 1
ARTICLE 3. . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.1 BASE RENT. . . . . . . . . . . . . . . . . . . . . 1
3.2 OPERATING EXPENSES. . . . . . . . . . . . . . . . . 1
3.3 SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . 1
ARTICLE 4. . . . . . . . . . . . . . . . . . . . . . . . . . 2
4.1 USE . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 5. . . . . . . . . . . . . . . . . . . . . . . . . . 2
5.1 TENANT SERVICES. . . . . . . . . . . . . . . . . . 2
5.2 UTILITY SERVICES. . . . . . . . . . . . . . . . . . 2
ARTICLE 6. . . . . . . . . . . . . . . . . . . . . . . . . . 2
6.1 ALTERATIONS. . . . . . . . . . . . . . . . . . . . 2
6.2 TENANT REPAIRS. . . . . . . . . . . . . . . . . . . 2
6.3 CONDITION OF PREMISES. . . . . . . . . . . . . . . 3
ARTICLE 7. . . . . . . . . . . . . . . . . . . . . . . . . . 3
7.1 TENANT INSURANCE. . . . . . . . . . . . . . . . . . 3
7.2 WAIVER OF SUBROGATION. . . . . . . . . . . . . . . 3
7.3 INDEMNITY. . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 8. . . . . . . . . . . . . . . . . . . . . . . . . . 4
8.1 CASUALTY. . . . . . . . . . . . . . . . . . . . . . 4
8.2 END OF TERM CASUALTY. . . . . . . . . . . . . . . . 4
ARTICLE 9. . . . . . . . . . . . . . . . . . . . . . . . . . 4
9.1 CONDEMNATION . . . . . . . . . . . . . . . . . . . 4
ARTICLE 10. . . . . . . . . . . . . . . . . . . . . . . . . . 5
10.1 ENTRY . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 11. . . . . . . . . . . . . . . . . . . . . . . . . . 5
11.1 SUBORDINATION. . . . . . . . . . . . . . . . . . . 5
11.3 QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . 5
ARTICLE 12. . . . . . . . . . . . . . . . . . . . . . . . . . 6
12.1 ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . 6
12.2 CONTINUED LIABILITY. . . . . . . . . . . . . . . . 7
12.3 CONSENT. . . . . . . . . . . . . . . . . . . . . . 7
12.4 PROCEEDS. . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 13. . . . . . . . . . . . . . . . . . . . . . . . . . 7
13.1 DEFAULT. . . . . . . . . . . . . . . . . . . . . . 7
13.2 RIGHTS UPON DEFAULT. . . . . . . . . . . . . . . . 7
13.3 COSTS. . . . . . . . . . . . . . . . . . . . . . . 8
13.4 INTEREST. . . . . . . . . . . . . . . . . . . . . . 8
13.5 LANDLORD'S LIEN. . . . . . . . . . . . . . . . . . 8
ARTICLE 14. . . . . . . . . . . . . . . . . . . . . . . . . . 8
14.1 CORPORATE RESOLUTIONS; OTHER EVIDENCE OF
AUTHORITY. . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 15. . . . . . . . . . . . . . . . . . . . . . . . . . 9
15.1 ENVIRONMENTAL MATTERS. . . . . . . . . . . . . . . 9
ARTICLE 16. . . . . . . . . . . . . . . . . . . . . . . . . . 9
16.1 AMENDMENT. . . . . . . . . . . . . . . . . . . . . 9
16.2 SEVERABILITY. . . . . . . . . . . . . . . . . . . . 9
16.3 ESTOPPEL LETTERS. . . . . . . . . . . . . . . . . . 9
16.4 LANDLORD'S LIABILITY AND AUTHORITY. . . . . . . . . 9
16.5 HOLDOVER. . . . . . . . . . . . . . . . . . . . . . 9
16.6 SURRENDER. . . . . . . . . . . . . . . . . . . . . 9
16.7 PARTIES AND SUCCESSORS. . . . . . . . . . . . . . . 9
16.8 NOTICE. . . . . . . . . . . . . . . . . . . . . . . 10
16.9 RULES AND REGULATIONS . . . . . . . . . . . . . . . 10
16.10 CAPTIONS . . . . . . . . . . . . . . . . . . . . . 10
16.11 NUMBER AND GENDER. . . . . . . . . . . . . . . . . 10
16.12 GOVERNING LAW. . . . . . . . . . . . . . . . . . . 10
16.13 INABILITY TO PERFORM. . . . . . . . . . . . . . . 10
16.14 USE OF NAME . . . . . . . . . . . . . . . . . . . 10
16.15 BROKER. . . . . . . . . . . . . . . . . . . . . . 10
16.16 MEMORANDUM OF LEASE. . . . . . . . . . . . . . . . 10
16.17 ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . 10
16.18 TIME OF ESSENCE. . . . . . . . . . . . . . . . . . 11
16.19 PARKING. . . . . . . . . . . . . . . . . . . . . . 11
16.21 ATTORNEY'S FEES. . . . . . . . . . . . . . . . . . 11
16.22 LANDLORD ALTERATIONS OR MODIFICATIONS. . . . . . . 11
16.23 NAME CHANGE . . . . . . . . . . . . . . . . . . . 11
16.25 GUARANTY. . . . . . . . . . . . . . . . . . . . . 11
16.26 PURCHASE OPTION. . . . . . . . . . . . . . . . . . 11
page break
00000 XXXXX XXXX LEASE AGREEMENT
---------------------------------
This Lease is entered into as of the 15th day of August,
1996 between 00000 XXXXX XXXX JOINT VENTURE GROUP, ("Landlord")
whose address for purposes of notice hereunder is 00000 Xxxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 and AMERICAN ECO
CORPORATION, an Ontario Corporation, ("Tenant"), whose address
prior to the Commencement Date (defined in Section 2.01 hereof)
is 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxx 00000 and whose address after
the Commencement Date shall be 00000 Xxxxx Xxxx, Xxxxxxx, Xxxxx
00000.
W I T N E S S E T H:
ARTICLE 1.
1.1 PREMISES.
---------- Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, for the rent and subject to
the provisions of this Lease, the premises known as 00000 Xxxxx
Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, said property being more
particularly described as Exhibit A hereto.
ARTICLE 2.
2.1 TERM.
----- Subject to the other provisions hereof, this
Lease shall be for a term of Five (5) years commencing on August
15, 1996 (the "Commencement Date"), and expiring on September 14,
2001 (the "Expiration Date"). Such term, as it may be modified,
is herein called the "Term." Such terms shall also have an
automatic renewal for a second five year period.
2.2 EARLY POSSESSION.
---------------- If prior to the Commencement Date
Tenant shall enter into possession of all or any part of the
Premises, such possession shall be subject to all the provisions
of this Lease, and the Term and the payment of all Rent shall
commence, on the date of such entry, and the total amount of all
Rent due hereunder shall be increased accordingly.
ARTICLE 3.
3.1 BASE RENT.
--------- Tenant, in consideration for this Lease,
agrees to pay to Landlord a base rental ("Base Rent") of
$180,000.00 per year such amount to be paid in equal monthly
installments of $15,000.00. Landlord's address herein provided
in legal tender of the United States of America, without notice,
demand, counterclaim, set-off or abatement, in advance on the
first day of each calendar month throughout the Term, except that
the first such monthly installment is due upon the date of
execution of this Lease by Tenant. The base rent for the second
five year term shall be $198,000.00 to be paid in equal monthly
installment of $15,500.00.
3.2 OPERATING EXPENSES.
------------------ "Operating Expenses" shall mean and
include all amounts, expenses, and costs of whatever nature paid
or incurred because of or in connection with the ownership,
management, operation, repair, maintenance, advertising and
promotion, or security of the Project, all additional facilities
that may be added to the Project, and Landlord's personal
property that may be utilized in connection therewith. Operating
Expenses shall also include real and personal property taxes,
capital improvements, depreciation, interest and principal
payments on mortgage and other non-operating debts of Landlord,
and specific costs for special items or services above Building
Standards.
3.3 SECURITY DEPOSIT.
----------------- Tenant shall deposit with Landlord
on the date Tenant executes this Lease the sum of $15,000.00 as a
"Security Deposit" on the understanding: (a) that the Security
Deposit or any portion thereof may be applied to the curing of
any default, without prejudice to any other remedy or remedies
which the Landlord may have on account thereof, and upon such
application Tenant shall pay Landlord on demand the amount so
applied which shall be added to the Security Deposit so the same
will be restored to its original amount; (b) that Landlord shall
not be obligated to hold the Security Deposit as a separate fund,
but may commingle it with other funds; and (c) that if Tenant is
not in default, the remaining balance of the Security Deposit
shall be returned to Tenant, without interest, within sixty (60)
days after the expiration of the Term provided, however, Landlord
shall have the right to retain and expend such remaining balance
for cleaning and repairing the the Premises if Tenant shall fail
to deliver the Premises at the termination of this Lease in a
neat and clean condition and in as good a condition as existed at
the date of possession of same by Tenant, ordinary wear and tear
only excepted.
ARTICLE 4.
4.1 USE.
---- Tenant shall use and occupy the Premises only for
general office and administrative duties and for no other
purposes. Tenant shall not do or permit anything to be done in
or about the Premises nor bring or keep anything therein that
will in any way increase the existing rate of or affect any fire
or other insurance upon the Project or any of its contents, or
cause cancellation of any insurance policy covering the Project
or any part thereof or any of its contents. Tenant shall not do
or permit anything to be done in or about the Premises that will
in any way obstruct or interfere with the rights of other tenants
or occupants of the Project or injure or annoy them or tend to
lower the first class character of the Building. Tenant shall
not permit any nuisance in, on or about the Premises. Tenant
shall not commit or suffer to be committed any waste in or upon
the Premises. Tenant shall not use the Premises or permit
anything to be done in or about the Premises that will in any way
conflict with any private restrictive covenant, law, statute,
ordinance or any rule or regulation of Landlord or any
governmental or quasi governmental authority now in force or that
may hereafter be enacted or promulgated.
ARTICLE 5.
5.1 TENANT SERVICES.
---------------- The Tenant shall provide services
at the Tenant's expense as follows:
(a) Janitorial services in the Premises.
(b) Water at those points of supply provided for drinking,
toilet, and lavatory purposes.
(c) Normal and customary routine maintenance for all
public, structural, and exterior portions of the
Project according to Landlord's standards.
(d) Electric lighting service for all public portions of
the Project in the manner and to the extent deemed by
Landlord to be in keeping with the standards of a first
class office building in Houston, Texas.
(e) Building security, however, Landlord shall have no
responsibility to prevent, and shall not be liable to
the Tenant for, liability or loss to the Tenant, its
agents, employees and visitors arising out of losses
due to theft, burglary, or damage or injury to persons
or property caused by persons gaining access to the
Building or the Premises, and the Tenant hereby
releases Landlord from all liability relating thereto.
5.2 UTILITY SERVICES.
----------------- The Tenant shall provide and keep
current public utilities/services as may be necessary for normal
building operation.
ARTICLE 6.
6.1 ALTERATIONS.
----------- Tenant shall not make or allow to be
made any alterations, installations, additions or improvements in
or to the Premises, or place safes, vaults or other heavy
furniture or equipment within the Premises, without Landlord's
prior written consent. All alterations, installations, additions
or improvements, other than movable furniture and movable trade
fixtures, made by Tenant to the Premises shall remain upon and be
surrendered with the Premises and become the property of Landlord
at the expiration or termination of this Lease or the termination
of Tenant's right to possession of the Premises. Tenant, at its
sole cost and prior to the expiration or termination of this
Lease, shall remove all of Tenant's property from the Premises
and make, or reimburse Landlord for the cost of, all repairs to
the Premises and/or Project for damage resulting from such
removal. All work shall be completed promptly and in a good and
workmanlike manner and shall be performed in such a manner that
no mechanic's, materialman's or other similar liens shall attach
to Tenant's leasehold estate, and in no event shall Tenant
permit, or be authorized to permit, any such liens or other
claims to be asserted against Landlord or Landlord's rights,
estate and interests with respect to the Project or this Lease.
Landlord may require, at Tenant's sole cost and expense, a lien
and completion bond in an amount equal to the estimated cost of
any improvements, additions or alterations in the Premises.
6.2 TENANT REPAIRS.
-------------- By taking possession of the Premises,
Tenant shall be deemed to have accepted the Premises as being in
good, sanitary order, condition and repair. Tenant shall, at
Tenant's sole cost and expense, keep the Premises in good
condition and repair, damage thereto from causes beyond the
reasonable control of Tenant and ordinary wear and tear damage
excepted. Any injury or damage to the Premises or Project, or
the Appurtenances or fixtures thereof, caused by or resulting
from the act, omission or neglect of Tenant or Tenant's
employees, servants, agents, invitees, assignees, or subtenants
shall be repaired or replaced by Tenant, or at Landlord's option
by Landlord, at the expense of Tenant. If Tenant fails to
maintain the Premises or fails to repair or replace any damage to
the Premises or Project resulting from the negligence or
intentional act of Tenant, its employees, servants, agents,
invitees, assignees or subtenants, Landlord may, but shall not be
obligated to, cause such maintenance, repair or replacement to be
done, as Landlord deems necessary, and Tenant shall immediately
pay to Landlord all costs related thereto plus a charge for
overhead of 15% of such costs.
6.3 CONDITION OF PREMISES.
---------------------- Tenant hereby acknowledges and
agrees that it has inspected the Premises and that to the best of
its knowledge, and based on such inspection, there are no defects
in the facilities provided by Landlord, whether as a part of the
Premises, the Building or the Project, that are vital to the use
of the Premises for their intended commercial purposes as set
forth in this Lease, and Tenant accepts the Premises without any
express or implied representations or warranties by Landlord as
to the fitness, use, suitability, or condition of the Premises or
those portions of the Project used or to be used by Tenant. In
the event that any such defect becomes apparent subsequent to the
date of execution of this Lease, Tenant shall give Landlord
written notice of such defect, and Landlord shall have a
reasonable time thereafter to remedy such defect without any
abatement or offset in Rent then due or to be due and owing to
Landlord. Tenant shall be responsible, and Landlord shall not be
liable to Tenant or to any other party, for any repairs to such
facilities that result from defects caused by an unusual or
abnormal use by Tenant or Tenant's employees, servants, agents,
invitees, assignees or subtenants. Tenant agrees that its
obligation to pay Rent hereunder is not dependent upon the
condition of the Premises or the performance by Landlord of its
obligations hereunder.
ARTICLE 7.
7.1 TENANT INSURANCE.
----------------- Tenant shall insure the Project and
shall maintain liability and other insurance in such amounts as
may be required by Landlord, and in such amounts as Landlord, in
its sole discretion, may deem appropriate. Such insurance shall
be for the sole benefit of Landlord and, if required, Landlord's
mortgagee. Tenant shall, at Tenant's expense, obtain and keep in
force comprehensive or commercial general liability insurance
insuring Landlord and Tenant against any liability arising out of
the ownership, use, occupancy or maintenance of the Premises and
all areas appurtenant thereto, including contractual liability
insurance (with respect to Section 7.3 hereof), with insurance
companies approved by Landlord and having a combined single limit
of not less than $1,000,000 per occurrence; together with
workers' compensation insurance having limits not less than those
required by statute and covering all persons employed by Tenant
in the conduct of its operations at the Premises and employers'
liability insurance coverage in the amount of at least
$1,000,000; together with "all risk" property insurance covering
damage to or loss of personal property, fixtures and equipment of
Tenant in such amounts as a prudent tenant of comparable size and
in a comparable business would deem necessary and appropriate.
Tenant shall cause Landlord to be named as an additional insured
under such policies and shall, not less than twenty (20) days
prior to (a) the Commencement Date, and (b) the expiration of old
policies, furnish Landlord with certificates of insurance with
loss payable clauses satisfactory to Landlord. All insurance to
be maintained by Tenant shall, except for workers' compensation
and employers' liability insurance, be primary over any insurance
carried by Landlord. The limit of such insurance shall not,
however, limit the liability of Tenant hereunder. Tenant may
carry such insurance under a blanket policy, provided such
insurance has a Landlord's protective liability endorsement
attached thereto. If Tenant fails to procure and maintain said
insurance, Landlord may, but shall not be required to, procure
and maintain same, but at the expense of Tenant. No policy shall
be cancelable or subject to reduction of coverage except after
thirty (30) days prior written notice to Landlord.
7.2 WAIVER OF SUBROGATION.
---------------------- Whenever (a) any loss, cost,
damage or expense resulting from fire, explosion or any other
casualty or occurrence is incurred by either of the parties to
this Lease in connection with the Premises or the Project, and
(b) such party is then covered (or is required under this Lease
to be covered) in whole or in part by insurance with respect to
such loss, cost, damage or expense, then the party so insured
hereby releases the other party from any liability it may have on
account of such loss, cost, damage or expense to the extent of
any amount recovered by reason of such insurance or any amount
that would have been recovered by such insurance if such
insurance had in fact been obtained as required by this Lease,
and waives any right of subrogation which might otherwise exist
on account thereof, provided that such release of liability and
waiver of the right to subrogation shall not be operative in any
case where the effect thereof is to invalidate such insurance
coverage or increase the cost thereof (provided, that in the case
of increased cost, the other party shall have the right, within
thirty (30) days following written notice, to pay such increased
costs, thereupon keeping such release and waiver in full force
and effect). Landlord and Tenant shall use their respective best
efforts to obtain such a release and waiver of subrogation from
their respective insurance carriers and shall obtain any special
endorsements, if required by their insurer, to evidence
compliance with the aforementioned waiver.
7.3 INDEMNITY.
---------- Tenant hereby indemnifies and holds
Landlord harmless from and against any and all claims arising
from Tenant's use of the Premises for the conduct of its business
or from any activity, work or other thing done, permitted or
suffered by Tenant on or about the Project and shall further
indemnify and hold harmless Landlord from and against any and all
claims arising form any breach or default in the performance of
any obligation on Tenant's part to be performed under the terms
of this Lease, or arising from any act or omission of, or due to
the negligence of, the Tenant, or any officer, agent, employee,
guest or invitee of Tenant, and from and against all costs,
attorney's fees, expenses and liabilities incurred in or related
to any such claim or any action or proceeding brought thereon.
Tenant as a material part of the consideration to Landlord,
hereby assumes all risk of damage to property or injury to
persons including death in, upon or about the Project, from any
cause other than Landlord's gross negligence, and Tenant hereby
waives all claims in respect thereof against Landlord.
ARTICLE 8.
8.1 CASUALTY.
--------- If the Premises or Project, or any portion of
either, shall be damaged by fire or other casualty covered by the
insurance carried by Landlord hereunder and the cost of repairing
such damage shall not be greater than 10% of the then full
replacement cost thereof, then, subject to the following
provisions of this Article, Landlord shall repair the Premises
and/or Project. If the Premises or Project shall be damaged (a)
by fire or other casualty not covered by insurance carried by
Landlord hereunder, (b) by fire or other casualty covered by
insurance carried by Landlord hereunder and Landlord's mortgagee
requires that such insurance proceeds be used to retire the
mortgage debt, or (c) to an extent greater than 10% of the then
full replacement cost thereof, then Landlord shall have the
option (i) to repair or reconstruct the damaged Premises or
Project to substantially the same condition as immediately prior
to such fire or other casualty, or (ii) to terminate this Lease
by so notifying Tenant within one hundred twenty (120) days after
the date of such fire or other casualty, such termination to be
effective as of the date of such fire or other casualty. The
Rent required to be paid hereunder shall be abated in proportion
to the portion of the Premises, if any, which is rendered
untenantable by fire or other casualty hereunder until repairs of
the Premises are completed, or if the Premises are not repaired,
until the Expiration Date hereunder. Other than such rental
abatement, no damages, compensation or claims shall be payable by
Landlord for loss of the use of the whole or any part of the
Premises, Tenant's personal property, or any inconvenience, loss
of business, or annoyance arising from any such repair and
reconstruction. If the damage results from the fault or
negligence of Tenant, its agents, employees, licensees or
invitees, Tenant shall not be entitled to any abatement or
reduction of any Rent or other sums due hereunder, and such
damage shall be repaired by Tenant, or at Landlord's option by
Landlord, at Tenant's expense. If this Lease is terminated as
provided in (c)(ii) above, all Rent shall be apportioned and paid
up to the date of such termination. Landlord shall not be
required to repair or replace any furniture, furnishings, or
other personal property that Tenant may be entitled to remove
from the Premises or any property constructed and installed by or
for Tenant pursuant to Section 6.01 hereof or any installations
in excess of Building Standard.
8.2 END OF TERM CASUALTY.
--------------------- Notwithstanding anything to
the contrary in this Article, Landlord shall not have any
obligation whatsoever to repair, reconstruct or restore the
Premises or the Project when the damage resulting from any
casualty covered under this Article occurs during the last twelve
(12) months of the Term or any renewal term. Any option to renew
this Lease that Tenant may be entitled to exercise shall be null
and void if such option has not been exercised prior to any
casualty that occurs during the last twelve (12) months of the
Term or any renewal term and Landlord elects not to repair,
reconstruct or restore the Premises or Project.
ARTICLE 9.
9.1 CONDEMNATION.
------------- If more than 20% of the Premises should
be taken for any public or quasi-public use, by right of eminent
domain or otherwise, or should be sold in lieu of condemnation,
then either party hereto shall have the right, at its option, to
terminate this Lease as of the date when physical possession of
the Premises is taken by the condemning authority. If 20% or
less of the Premises is so taken or sold or if this Lease is not
terminated upon any taking or sale of greater than 20% of the
Premises, the Rent payable hereunder shall be abated in
proportion to the portion of the Premises which is rendered
untenantable by such condemnation, and Landlord shall, to the
extent Landlord deems feasible, restore the Premises to
substantially its former condition, but Landlord shall not in any
event by required to spend for such work an amount in excess of
the amount actually received by Landlord (after the payment of
any such proceeds to Landlord's mortgagee, if any, pursuant to
the terms of any mortgage) as compensation for such taking. If
any part of the Project other than the Premises may be so taken
or sold, Landlord shall have the right at its option to terminate
this Lease as of the date when physical possession of such part
of the Project is taken by the condemning authority. All amounts
awarded upon taking of any part or all of the Project or the
Premises shall belong to Landlord and Tenant shall not be
entitled to, and expressly assigns all claims, rights and
interests to, any such compensation to Landlord.
ARTICLE 10.
10.1 ENTRY.
------ Landlord, its agents, employees and
representatives, shall have the right to enter the Premises at
any time upon reasonable notice to Tenant under the circumstances
(which notice may be oral and not in compliance with Section
16.08 hereof, but no notice shall be required in the case of
routine maintenance or any emergency) to show the Premises to
prospective Tenants or purchasers or for any purpose that
Landlord may reasonably deem necessary for the operation and
maintenance of the Project. Tenant hereby waives any claim for
damages or for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment
of the Premises, and any other loss occasioned thereby. For each
of the aforesaid purposes, Landlord shall at all times have and
retain a key with which to unlock all of the doors in, upon and
about the Premises, excluding Tenant's vaults, safes and files.
Landlord shall have the right to use any and all means which
Landlord may deem proper to open the doors in, upon and about the
Premises in any emergency in order to obtain entry to the
Premises without liability to Tenant, except for any failure to
exercise due care for Tenant's property.
ARTICLE 11.
11.1 SUBORDINATION.
-------------- This Lease is and shall be subject and
subordinate to any and all ground or similar leases affecting the
Project, and to all mortgages, deeds of trust, and security
agreements that may now or hereafter encumber or affect the
Project or any interest of Landlord therein and/or the contents
of the Building, and to any advances made on the security thereof
and to any and all increases, renewals, modifications,
consolidations, replacements and extensions of any such leases,
mortgages, deeds of trust and/or security agreements. This
clause shall be self-operative and no further instrument of
subordination need by required by any owner or holder of such
ground lease, mortgage, deed of trust or security agreement.
Tenant agrees to execute and return any estoppel certificate,
consent or agreement reasonably requested by any such lessor,
mortgagee, trustee or secured party in connection with this
Section within ten (10) days after receipt of same, and Tenant
hereby irrevocably appoints Landlord as Tenant's attorney-in-fact
to execute the same. Tenant shall, at the request of Landlord,
any mortgagee of Landlord secured by a lien on the Project, any
lessor to Landlord under a ground lease of the Project, or any
secured party under a security agreement encumbering the interest
of Landlord, furnish such mortgagee, lessor or secured party with
written notice of any default or breach by Landlord at least
sixty (60) days prior to the exercise by Tenant of any rights
and/or remedies of Tenant hereunder arising out of such default
or breach.
11.2 ATTORNMENT.
----------- If any ground or similar such lease,
mortgage, deed of trust or security agreement is enforced by the
ground lessor, the mortgagee, the trustee, or the secured party,
Tenant shall, upon request, attorn to the lessor under such lease
or the mortgagee or purchaser at such foreclosure sale, or any
person or party succeeding to the interest of Landlord as a
result of such enforcement, as the case may be, and execute
instrument(s) confirming such attornment; provided however, that
if this Lease was approved and accepted in writing by such
lessor, mortgagee, trustee or secured party, Tenant's attornment
shall be conditioned upon the agreement by such successor to
Landlord's interest not to disturb Tenant's possession hereunder
during the Term so long as Tenant performs its obligations under
this Lease. In the event of such enforcement and upon Tenant's
attornment as aforesaid, Tenant will automatically became the
tenant of the successor to Landlord's interest without change in
the terms or provisions of this Lease; provided, however, that
such successor to Landlord's interest shall not be bound by (a)
any payment of Rent for more than one month in advance (except
prepayments for security deposits, if any) or (b) any amendments
or modifications of this Lease made without the prior written
consent of such lessor mortgagee.
11.3 QUIET ENJOYMENT.
--------------- Tenant, on paying the Rent and
keeping and performing the conditions and covenants herein
contained, shall and may peaceably and quietly enjoy the Premises
for the Term, subject to the aforesaid underlying leases,
mortgages, deeds of trust and security agreements, all applicable
laws and other governmental and legal requirements, applicable
insurance requirements and regulations, such matters of public
record affecting the Project, and the provisions of this Lease.
It is understood and agreed that this covenant and any and all
other covenants of Landlord contained in this Lease shall be
binding upon Landlord and its successors only with respect to
breaches occurring during its and their respective ownership of
the Landlord's interest hereunder.
ARTICLE 12.
12.1 ASSIGNMENT AND SUBLETTING.
-------------------------- Tenant shall not,
voluntarily, by operation of law, or otherwise, assign, transfer,
mortgage, pledge, or encumber this Lease or sublease the Premises
or any part thereof, or suffer any person other than Tenant, its
employees, agents, servants and invitees to occupy or use the
Premises or any portion thereof, without the express prior
written consent of Landlord. Any attempt to do any of the
foregoing without such written consent shall be null and void and
of no effect, and shall further constitute a Default under this
Lease. If Tenant so requests Landlord's consent, said request
shall be in writing specifying the duration of said desired
sublease or assignment, the date same is to occur, the exact
location of the space affected thereby and the proposed rentals
on a square foot basis chargeable thereunder, and shall be
submitted to Landlord at least sixty (60) days in advance of the
date on which Tenant desires to make such assignment or sublease
or allow such occupancy or use. Upon such request Landlord may,
in its sole discretion, (a) grant such consent subject to
Landlord's approval of the assignee, transferee, subtenant, or
mortgagee, or (b) elect to terminate this Lease with respect to
the Premises or any portion thereof to be affected by such
assignment, sublease or other event specified above, or (c)
suspend this Lease as to the space to be affected by such
assignment, sublease or other event specified above for the
duration specified by Tenant in its notice, in which event Tenant
will be relieved of all obligations hereunder as to such space
during said suspension, including a suspension of the Rent
hereunder in proportion to the portion of the Premises affected
thereby (but after said suspension, if the suspension is not for
the full term hereof, Tenant shall once again become liable
hereunder as to the applicable space). In no event may Tenant
assign this Lease or sublease the Premises or any portion thereof
to any party whose operations in the Project would not be in
keeping with, or would detract from, the operations of other
tenants in the Project. If Tenant is not a public company that
is registered on a national stock exchange or that is required to
register its stock with the Securities and Exchange Commission
under Section 12(g) of the Securities and Exchange Act of 1934,
then any change in a majority of the voting rights or other
controlling rights or interests of Tenant shall be deemed an
assignment for the purposes hereof.
Notwithstanding anything contained in this Section to the
contrary, in the event Landlord does not elect to suspend this
Lease in whole or in part as set forth above, Tenant by giving
written notice to Landlord of Tenant's desire to assign this
Lease or sublet the Premises or any part thereof shall be deemed
to have granted to Landlord (or Landlord's agent, at Landlord's
option) the exclusive right for a period of forty-five (45) days
following receipt by Landlord of Tenant's notice, to sublease on
Tenant's behalf the Premises or such portion thereof as Tenant
proposes to sublet or assign. In the event that Landlord or its
agent obtains a written commitment for a sublease of such space
from a third party within such forty-five (45) day period, then
Landlord or its agent shall have the right to negotiate all terms
and provisions of the sublease (including the commencement date
and term thereof) on behalf of Tenant, provided the rentals
thereunder (on a square foot basis) shall be at least equal in
amount to the lesser of (a) the Rent (on a square foot basis)
proposed by Tenant in its notice to Landlord to be paid by the
assignee or sublessee proposed by Tenant or (b) the Rent (on a
square foot basis) payable by Tenant under this Lease. Tenant
agrees to execute, as sublessor, such sublease as negotiated by
Landlord promptly upon delivery of same to Tenant by Landlord.
Tenant shall thereafter be bound by the terms thereof. Tenant
shall not be required to pay any brokerage commissions to
Landlord or Landlord's leasing agent in connection with the
execution of a sublease under the terms of this paragraph. As
additional rental hereunder, Landlord shall be entitled (and the
sublease shall so provide) to be paid, as it accrues, any profit
to be realized as a result of any sublease entered into under
this paragraph after deduction of and giving Tenant credit for
Tenant's reasonable costs directly associated therewith,
including the reasonable cost of remodelling or otherwise
improving the Premises for such sublessee, amortized over the
remaining term of this Lease, but excluding any free rentals or
the like offered to any such sublessee under this paragraph. If
within the forty-five (45) day period after Landlord receives
Tenant's notice of Tenant's desire to assign this Lease or sublet
the Premises or any part thereof, Landlord fails to notify Tenant
(a) of its election to suspend this Lease in whole or in part as
set forth above or (b) that Landlord has obtained a written
commitment for a sublease from a third party under this
paragraph, then Landlord shall be deemed to have elected the
option set forth in Section 12.1(a) hereof free and clear of
Landlord's rights under this paragraph, subject, however, to
Landlord's subsequent written approval of the proposed assignee
or sublessee as set forth above.
In any situation in which Landlord consents to an assignment
or sublease hereunder, Tenant shall promptly deliver to Landlord
a fully executed copy of the final sublease agreement or
assignment instrument and all ancillary agreements relating
thereto. No assignment shall be effective unless the assignee
has agreed within the assignment instrument to assume the
obligations of Tenant hereunder and to be personally bound by all
of the covenants, terms and conditions hereof on the part of
Tenant to be performed or observed hereunder.
12.2 CONTINUED LIABILITY.
------------------- Tenant shall, despite any permitted
assignment or sublease, remain directly and primarily liable for
the performance of all of the covenants, duties, and obligations
of Tenant hereunder, and Landlord shall be permitted ot enforce
the provision of this Lease against Tenant or any assignee or
sublessee without demand upon or proceeding in any way against
any other person.
12.3 CONSENT.
-------- Consent by Landlord to a particular
assignment or sublease shall not be deemed a consent to any other
or subsequent transaction. If this Lease is assigned or if the
Premises are subleased without the permission of Landlord, then
Landlord may nevertheless collect Rent from the assignee or
sublessee and apply the net amount collected to the Rent payable
hereunder, but no such transaction or collection of Rent or
application thereof by Landlord shall be deemed a waiver of any
provision hereof or a release of Tenant from the performance of
the obligations of the Tenant hereunder.
12.4 PROCEEDS.
-------- All cash or other proceeds of any assignment,
sale or sublease of Tenant's interest in this Lease, whether
consented to by Landlord or not, shall be paid to Landlord
notwithstanding the fact that such proceeds exceed the Rent
called for hereunder, and Tenant hereby assigns all rights it
might have or ever acquire in any such proceeds to Landlord.
ARTICLE 13.
13.1 DEFAULT.
-------- Each of the following shall constitute a
"Default" by Tenant:
(a) The failure of Tenant to pay the Rent or any part
thereof when due;
(b) Tenant shall become insolvent or unable to pay its
debts as they become due, or Tenant notifies Landlord that it
anticipates either condition;
(c) Tenant takes any action to, or notifies Landlord that
Tenant intends to, file a petition under any section or chapter
of the United States Bankruptcy Code, as amended from time to
time, or under any similar law or statute of the United States or
any state thereof; or a petition shall be filed against Tenant
under any such statute or Tenant notifies Landlord that it knows
such a petition will be filed; or the appointment of a receiver
or trustee to take possession of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this
Lease; or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or
of Tenant's Interest in this Lease;
(d) Tenant shall fail to fulfill or perform, in whole or in
part, any of its obligations under this Lease (other than the
payment of Rent) and such failure or nonperformance shall
continue for a period of fifteen (15) days after written notice
thereof has been given by Landlord to Tenant;
(e) Tenant shall vacate or abandon the Premises or any
significant portion thereof;
(f) Tenant shall fail to take possession of the Premises
when Landlord notifies Tenant that the Premises are ready for
occupancy;
(g) The occurrence of any event or condition having a
material and adverse effect on the assets, liabilities, financial
condition, business or operations of Tenant as they exist on the
date of this Lease, or the ability of Tenant to meet its
obligations under this Lease on a timely basis as provided
herein;
(h) Any representation or warranty by Tenant in this Lease
or in any certificate, statement or other document furnished
pursuant to or under this Lease, including, without limitation,
financial statements, proves to be or becomes incorrect in any
material respect; or
(i) A default occurs under the provisions of Sections 5.2
or 12.1 of this Lease.
13.2 RIGHTS UPON DEFAULT.
------------------- If a Default by Tenant occurs, then
at any time thereafter, with or without notice or demand,
Landlord may exercise any and all rights and remedies available
to Landlord under this Lease, at law or in equity, including
without limitation, termination of this Lease and termination of
Tenant's right to possession without terminating the Lease. In
the event of a Default, Landlord may, without additional notice
and without court proceedings, re-enter and repossess the
Premises and remove all persons and property therefrom, and
Tenant hereby agrees to surrender possession of the Premises,
waives any claim arising by reason thereof or by reason of
issuance of any distress warrant or writ of sequestration, and
agrees to hold Landlord harmless from any such claims. If
Landlord elects to terminate this Lease, it may treat the Default
as an entire breach of this Lease and Tenant shall immediately
become liable to Landlord for damages equal to the total of (a)
the cost of recovering, reletting, including, without limitation,
the cost of leasing commissions attributable to the unexpired
portion of the Term of this Lease, and remodeling the Premises,
(b) all unpaid Rent and other amounts earned or due through such
termination, including interest thereon at the rate specified in
Section 13.4 hereof, plus (c) the present value (discounted at
the same rate) of the fair market rental value of the Premises
for said period and (d) any other sum of money and damages owed
by Tenant to Landlord. If landlord elects to terminate Tenant's
right to possession of the Premises without terminating this
Lease, Landlord may (but shall not be obligated to) rent the
Premises or any part thereof for the account of Tenant to any
person or persons for such rent and for such terms and conditions
as Landlord deems appropriate, and Tenant shall be liable to
Landlord for the amount, if any, by which the Rent for the
unexpired balance of the Term exceeds the net amount, if any,
received by Landlord from such reletting, being the gross amount
so received by Landlord less the costs of repossession,
reletting, remodeling, and other expenses incurred by Landlord.
Such sum or sums shall be paid by Tenant in monthly installments
on the first day of each month of the Term. In no case shall
Landlord be liable for failure to relet the Premises or to
collect the rent due under such reletting, and in no event shall
Tenant be entitled to any excess rents received by Landlord. All
rights and remedies of Landlord shall be cumulative and not
exclusive.
13.3 COSTS.
------ If a Default by Tenant occurs, then Tenant
shall reimburse Landlord on demand for all costs reasonably
incurred by Landlord in connection therewith including, but no
limited to, reasonable attorney's fees, court costs, and related
costs, plus interest thereon from the date such costs are paid by
Landlord until Tenant reimburses Landlord, at the rate specified
in Section 13.4 hereof.
13.4 INTEREST.
-------- All late payments of Rent, costs or other
amounts due from Tenant under this Lease shall bear interest from
the date due until paid at the rate of 12% per annum; provided,
however, in no event shall the rate of interest hereunder exceed
the maximum nonusurious rate of interest (the "Maximum Rate")
permitted by the applicable laws of the State of Texas or the
United States of America, whichever shall permit the higher
nonusurious rate, and as to which Tenant could not successfully
assert a claim or defense of usury, and to the extent that the
Maximum Rate is determined by reference to the laws of the State
of Texas, the Maximum Rate shall be the indicated rate ceiling
(as defined and described in Texas Revised Civil Statutes,
Article 5069-1.04, as amended) at the applicable time in effect.
13.5 LANDLORD'S LIEN.
---------------- Landlord reserves (and is hereby
granted) a first and superior lien and security interest (which
shall be in addition to and not in lieu of the statutory
landlord's lien) on all fixtures, equipment, and personal
property (tangible and intangible) now or hereafter placed by
Tenant in or on the Premises to secure all sums due by Tenant
hereunder, which lien and security interest may be enforced by
Landlord in any manner provided by law, including, without
limitation, under and in accordance with the Texas Uniform
Commercial Code. The provisions of this Section shall constitute
a security agreement under the Texas Uniform Commercial Code and
Tenant shall execute and Landlord shall file, where appropriate
and at Tenant's expense, all documents, including Financing
Statements in the form attached hereto as Exhibit D and made a
part hereof for all purposes, required to perfect the security
interest herein granted in accordance with the Texas Uniform
Commercial Code. Landlord may at its election at any time file a
copy of this Lease as a financing statement. Unless otherwise
provided by law and for the purpose of exercising any right
pursuant to this Section, Landlord and Tenant agree that
reasonable notice shall be met if such notice is given by five
days' written notice, certified mail, return receipt requested,
to Tenant by Landlord at the address specified herein.
ARTICLE 14.
14.1 CORPORATE RESOLUTIONS; OTHER EVIDENCE OF AUTHORITY.
---------------------------------------------------
If Tenant is a corporation, Tenant shall, simultaneously
with the execution and delivery of this Lease, deliver a fully
executed Certificate of the Secretary with attached Resolutions
of the Corporate Board substantially in the form attached hereto
as Exhibit E. If Tenant is a partnership or a joint venture,
Tenant shall, simultaneously with the execution and delivery of
this Lease, deliver to Landlord a copy of Tenant's partnership or
joint venture agreement certified as being true and complete and
such other documents as Landlord or counsel for Landlord may
request evidencing the authority of a partner of joint venturer
of Tenant to sign on behalf of Tenant.
ARTICLE 15.
15.1 ENVIRONMENTAL MATTERS.
--------------------- Tenant shall prevent the
presence, use, generation, release, discharge, storage, disposal,
or transportation of any Hazardous Materials on, under, in,
above, to, or from the Premises other than in strict compliance
with all applicable federal, state, and local laws, regulations,
and orders. For the purposes of this section, "Hazardous
Materials" shall refer to any substances, materials, and wastes
that are or become regulated as hazardous or toxic substances
under any applicable local, state, or federal law, regulation, or
order. Tenant shall indemnify, defend, and hold Landlord
harmless from and against:
(a) Any loss, cost, claim or liability arising out of any
investigation, monitoring, clean-up, containment, removal,
storage, or restoration work ("Remedial Work") required by or
incurred by Landlord or any nongovernmental entity or person in a
reasonable belief that such work is required by any applicable
federal, state, or local law, governmental agency, or political
subdivision; and
(b) Any claims of third parties for loss, injury, expense,
or damage arising out of the presence, release, or discharge of
any hazardous Materials on, under, in, above, to, or from the
Premises. In the event any Remedial Work is so required under
any applicable federal, state or local law, Tenant shall perform
or cause to be performed the Remedial Work in compliance with
such law, regulation, or order. All Remedial Work shall be
performed by one or more contractors under the supervision of a
consulting engineer, each selected by Tenant and approved in
advance in writing by Landlord. In the event Tenant shall fail
to commence the Remedial Work in a timely fashion or fail to
prosecute diligently the Remedial Work to completion, Landlord
may, but shall not be required to, cause the Remedial Work to be
performed, subject fully to the indemnification provisions of
this article. This Article shall survive the termination of this
Lease.
ARTICLE 16.
16.1 AMENDMENT.
---------- Any agreement hereafter made between
Landlord and Tenant shall be ineffective to modify, release, or
otherwise affect this Lease, in whole or in part, unless such
agreement is in writing and signed by the party to be bound
thereby.
16.2 SEVERABILITY.
------------- If any term or provision of this Lease
shall, to any extent, be held invalid or unenforceable by a final
judgment of a court of competent jurisdiction, the remainder of
this Lease shall not be affected thereby.
16.3 ESTOPPEL LETTERS.
---------------- Tenant shall promptly upon request
from Landlord execute and acknowledge a certificate containing
such information as may be reasonably requested for the benefit
of Landlord, any prospective purchaser or any current or
prospective mortgagee of all or any portion of the Project.
16.4 LANDLORD'S LIABILITY AND AUTHORITY.
---------------------------------- The liability of
Landlord to Tenant for any default by Landlord under the terms of
this Lease shall be limited to the interest of Landlord in the
Project. Landlord, its officers, directors, partners, joint
venturers, and/or employees shall not be personally liable for
any judgment or deficiency, and Tenant agrees to look solely to
Landlord's interest in the Project for the recovery of any
judgment against the Landlord.
16.5 HOLDOVER.
--------- If Tenant shall remain in possession of the
Premises after the Expiration Date or earlier termination of this
Lease, then Tenant shall be deemed a tenant-at-will whose tenancy
is terminable at any time. In such event, Tenant shall pay Rent
at two times the daily rental rate prevailing on the date of such
termination or expiration, but otherwise shall be subject to and
shall perform all of the obligations of Tenant under this Lease.
Additionally, Tenant shall pay to Landlord all damages sustained
by Landlord on account of such holding over by Tenant.
16.6 SURRENDER.
---------- Upon the expiration or earlier
termination of the Term, Tenant shall peaceably quit and
surrender the Premises in good order and condition, excepting
ordinary wear and tear, but subject to Sections 6.1 and 6.2
hereof. All obligations of Tenant for the period of time prior
to the expiration or earlier termination of the Term shall
survive such expiration or termination.
16.7 PARTIES AND SUCCESSORS.
----------------------- Subject to the limitations and
conditions set forth elsewhere herein, this Lease shall bind and
inure to the benefit of the respective heirs, legal
representatives, successors, and permitted assigns and/or
sublessees of the parties hereto. The term "Landlord", as used
in this Lease, so far as the performance of any covenants or
obligations on the part of Landlord under this Lease are
concerned, shall mean only the owner of the Project at the time
in question, so that in the event of any transfer of title to the
Project, the party by whom any such transfer is made shall be
relieved of all liability and obligations of the Landlord arising
under this Lease from and after the date of such transfer.
16.8 NOTICE.
-------- Except as otherwise provided herein, any
statement, notice, or other communication that Landlord or Tenant
may desire or be required to give to the other shall be deemed
sufficiently given or rendered if hand delivered, or if sent by
registered or certified mail, return receipt requested, addressed
at the address(es) first hereinabove given or at such other
addresses(es) as the other party shall designate from time to
time by prior written notice, and such notice shall be effective
when the same is received or mailed as herein provided.
16.9 RULES AND REGULATIONS.
--------------------- Tenant, its servants,
employees, agents, visitors, invitees, and licensees, shall
observe faithfully and comply strictly with the Rules and
Regulations set forth in Exhibit B attached hereto and made a
part hereof for all purposes, and shall abide by and conform to
such further rules and regulations as Landlord may from time to
time reasonably make, amend or adopt, after Tenant receives a
copy thereof.
16.10 CAPTIONS.
-------- The captions in this Lease are inserted
only as a matter of convenience and for reference and they in no
way define, limit, or describe the scope of this Lease or the
intent of any provision hereof.
16.11 NUMBER AND GENDER.
------------------ All genders used in this Lease
shall include the other genders, the singular shall include the
plural, and the plural shall include the singular, whenever and
as often as may be appropriate.
16.12 GOVERNING LAW.
-------------- This Lease shall be governed by and
construed in accordance with the laws of the State of Texas.
16.13 INABILITY TO PERFORM.
--------------------- Notwithstanding Section
16.18 hereof, whenever a period of time is herein prescribed for
the taking of any action by Landlord, Landlord 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 other
cause whatsoever beyond the control of Landlord, and such
nonperformance or delay in performance by Landlord shall not
constitute a breach or default by Landlord under this Lease nor
give rise to any claim against Landlord for damages or constitute
a total or partial eviction, constructive or otherwise.
16.14 USE OF NAME.
----------- Tenant shall not, except to
designate Tenant's business address (and then only in a
conventional manner and without emphasis or display), use the
name or xxxx "11011 Xxxxx Road" or any other name that Landlord
may use for the Building pursuant to Section 16.23 hereof for any
purpose whatsoever.
16.15 BROKER.
------- Tenant represents and warrants that
Tenant has dealt with, and only with N/A as
-----------------------
broker in connection with this Lease and that, insofar as Tenant
knows, no other broker negotiated this Lease or is entitled to
any commission in connection herewith. Tenant shall indemnify
and hold harmless Landlord from and against all claims (and costs
of defending against and investigating such claims) of any other
broker(s) or similar parties claiming under Tenant in connection
with this Lease.
16.16 MEMORANDUM OF LEASE.
------------------- Without the prior written
consent of Landlord (which may be granted or withheld in
Landlord's sole discretion), Tenant shall not record this Lease
or a memorandum or other instrument with respect to this Lease.
Upon the date of execution of this Lease, or at any time
thereafter, and at the request of Landlord, Tenant and Landlord
shall execute a memorandum in recordable form setting forth the
material terms and conditions of this Lease.
16.17 ENTIRE AGREEMENT.
----------------- This Lease, including all
Exhibits attached hereto (which Exhibits are hereby incorporated
herein and shall constitute a portion hereof), contains the
entire agreement between Landlord and Tenant with respect to the
subject matter hereof. Tenant hereby acknowledges and agrees
that neither Landlord nor Landlord's agents or representatives
have made any representations, warranties, or promises with
respect to the Project, the Premises, Landlord's services, or any
other matter or thing except as herein expressly set forth, and
no rights, easements, or licenses are acquired by Tenant by
implication or otherwise except as expressly set forth in this
Lease. The taking of possession of the Premises by Tenant shall
be conclusive evidence, as against Tenant, that Tenant accepts
the Premises and the Project, and that same were in good and
satisfactory condition at the time such possession was so taken.
Further, the terms and provisions of this Lease shall not be
construed against or in favor of a party hereto merely because
such party is the "Landlord" or the "Tenant" hereunder or such
party or its counsel is the draftsman of this Lease.
16.18 TIME OF ESSENCE.
---------------- Time is of the essence of this
Lease and each and all of its provisions in which performance is
a factor.
16.19 PARKING.
-------- Tenant shall have the right to use the
parking facilities of the Building, subject to the monthly rates,
rules and regulations, and any other charges of Landlord for such
parking facilities, and the failure of Tenant to timely pay such
monthly rates and charges shall constitute a default by Tenant
under this Lease, all as more particularly set forth on Exhibit C
hereto.
16.20 TENANT TAXES.
------------- Tenant shall pay, or cause to be
paid, before delinquency, any and all taxes levied or assessed
and which become payable during the Term upon all of Tenant's
leasehold improvements, equipment, furniture, fixtures and
personal property located in the Premises, except that which has
been paid for by Landlord and is the standard of the Building.
16.21 ATTORNEY'S FEES.
--------------- In the event Tenant defaults
in the performance of any of the terms, agreements or conditions
contained in this Lease and Landlord places the enforcement of
this Lease, or any part thereof, or the collection of any Rent
due or to become due hereunder, or recovery of the possession of
the Premises, in the hands of any attorney who files suit upon
the same, the Tenant shall pay Landlord's reasonable attorney's
fees.
16.22 LANDLORD ALTERATIONS OR MODIFICATIONS.
--------------------------------------
Notwithstanding anything herein to the contrary, Landlord
expressly reserves the right in its sole discretion to
temporarily or permanently change the location of, close, block
or otherwise alter any entrances, corridors, skywalks, tunnels,
doorways, or walkways leading to or providing access to the
Building or any part thereof or otherwise restrict the use of
same, provided such acts do not unreasonably impair Tenant's
access to the Premises. Landlord shall not incur any liability
whatsoever to Tenant as a consequence thereof and such acts shall
not be deemed to be a breach of any of Landlord's obligations
hereunder. Landlord agrees to exercise good faith in notifying
Tenant within a reasonable time in advance of any alterations,
modification or other acts of Landlord under this Section.
16.23 NAME CHANGE.
------------ Landlord and Tenant covenant and
agree that Landlord hereby reserves and shall have the right at
any time and from time to time to change the name of the Building
as Landlord may deem advisable, and Landlord shall not incur any
liability whatsoever to Tenant as a consequence thereof.
16.24 SUBSTITUTION OF PREMISES.
------------------------ In the event Landlord
determines to utilize the Premises for other purposes during the
Term, Tenant agrees to relocate to other space in the Building
designated by Landlord, provided such other space is of equal or
larger size than the Premises, unless Tenant agrees to relocate
to smaller space. Landlord shall pay all out-of-pocket expenses
of any such relocation, including the expenses of moving and
reconstruction of all Tenant furnished and Landlord furnished
improvements. In the event of such relocation, this Lease shall
continue in full force and effect without any change in the terms
or conditions of this Lease, but with the new location
substituted for the old location set forth in Section 1.01
hereof.
16.25 GUARANTY.
--------- The Guaranty (the "Guaranty") for this
Lease is attached hereto as Exhibit D and made a part hereof for
all purposes. This Lease shall not be affected and Tenant's
obligations under this Lease shall not be diminished or impaired
by the failure of any party shown on such Guaranty to execute
such Guaranty. Each party executing the Guaranty is herein
referred to individually as a "Guarantor", and collectively
referred to as the "Guarantors".
16.26 PURCHASE OPTION.
---------------- Provided that the Tenant is
not in default, Tenant may at any time prior to the expiration of
the one year anniversary of the Lease, have the option to
purchase the Premises for a purchase price equal to $1,800,000.00
payable in cash at closing. Tenant shall give notice to Landlord
of its intent to exercise this option in writing at any time
prior to the expiration of the term of this Lease and a closing
shall be held within thirty (30) days after the date of such
notice. The parties agrees to enter into a Real Estate Sales
Agreement which will contain the normal and customary warranties,
representation, covenants, prorations and allocations of expenses
as are generally provided in the Real Estate Sales Agreement for
similar properties in Xxxxxx County, Texas as of the closing
date. At closing Tenant shall be given credit in the sum of
$15,000.00 multiplied times the number of months of rent actually
paid by Tenant to Landlord hereunder prior to the closing date.
In the event this Lease term expires without Tenant exercising
this Purchase Option, this Purchase Option shall also express as
of such termination date.
EXECUTED to be effective as of the date hereinabove first
set forth.
LANDLORD:
00000 XXXXX XXXX JOINT VENTURE GROUP
By:_____________________________________
Name: Xxxx X'Xxxxx
-----------------------------------
Its: Managing Venturer
-----------------------------------
TENANT:
AMERICAN ECO CORPORATION
By:__________________________________________
Name: Xxxxxxx X. XxXxxxxx
----------------------------------------
Its: President
----------------------------------------
