BUILDING LEASE DEFINITIONS AND CERTAIN BASIC PROVISIONS
ARTICLE
11
DEFINITIONS
AND CERTAIN BASIC PROVISIONS
1.1 The
following list sets out certain defined terms and certain financial and other
information pertaining to this lease ("Lease" or sometimes "lease
agreement"):
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(a)
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"Landlord":
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▇▇▇▇▇°
▇▇▇▇▇, Trustee for and on behalf of
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First
Street Holdings, Ltd.
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(b)
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Landlord's
address:
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c/o
▇▇▇▇▇▇ ▇▇▇▇▇, M.D.
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▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇,
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Houston,
TX 77056
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(c)
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"Tenant":
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First
Street Hospital, L.P.
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(d)
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▇▇▇▇▇▇'s
address:
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▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Bellaire,
TX 77401
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(e)
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Tenant's
trade name:
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First
Street Hospital, L.P.
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(f)
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[INTENTIONALLY
OMITTED]
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(g) "Demised
Premises": The land and building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ which property is described or shown on Exhibit "A" attached
to this Lease. Exhibit
"A" indicates the current plans for the Demised Premises; however, the
parties agree that such exhibit is attached solely for the purpose of locating
the Demised Premises and that no representation, warranty, or covenant is to be
implied by any other information shown on the exhibit (i.e., any information as
to buildings, tenants or prospective tenants, etc. is subject to change at any
time).
(h) "Commencement
Date": September 17, 2006.
(i) "Lease Term"; "Extension Option":
Commencing on the Commencement Date and continuing for TEN (10) years after
the Commencement Date; provided that if the Commencement Date is a date other than
the first day of a calendar month, the lease term will be for the number of years and months
specified above plus the remainder of the calendar month in which the Commencement Date
occurs. Landlord grants Tenant (but not any assignee of Tenant) an option to extend
the initial ten year term of the Lease for up to TWO (2) consecutive additional
TEN (10) year terms (the "Additional Terms"). Tenant's right to exercise such option terminates if: (a)
this Lease or Tenant's right to possession of the Premises is terminated, (b) Tenant
fails to timely exercise the option, or (c) default exists at the time Tenant seeks to exercise the
option. Landlord and Tenant agree that during the each Additional Term, this Lease will
continue as written with the monthly Base Rent calculated pursuant to Sections
1.1(k) and 1.1(1) below;
provided however, that in no event shall the Base Rental be less than the Minimum
Guaranteed Rent. The option to extend for the Additional Term must be exercised by written
notice delivered to Landlord 180 days before the expiration Term must be exercised by
written notice delivered to Landlord 180 days before the expiration of the initial term or, in
the event of the exercise of the option for an Additional Term, 180 days before the expiration
of the then existing Additional Term. If Tenant fails to timely exercise the option for an
Additional Term, then any and all option rights to subsequent Additional Terms shall
terminate.
THE.
▇▇▇▇▇▇▇ LAW FIRM LLP 0 HOUSTON, TX
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(j) "Minimum
Guaranteed Rent": Tenant must pay to Landlord monthly a minimum amount
equal to at least THIRTY-SEVEN f-H0433*N-D
kN-D NO11-06 037,-000.&20)130ti.ARS
per month. Such Minimum Guaranteed Rent in the amount of $ee-.150
is calculated without regard to the actual number of square feet in the Demised
Premises. 711.f, rOC9, —
(k) "Base
Rent": Base Rent shall be the greater of: (1) Minimum Guaranteed Rent; or (2)
the Adjusted Base Rent as calculated pursuant to Section
1.1(l). The Base Rent shall be adjusted each anniversary date of this
lease agreement, provided however, the Base Rate shall never be less than the
Minimum Guaranteed Rental. The Base Rent shall be due and payable rnonthly, in
advance, the first day of the month. The first monthly installment of Base Rent
is due and payable on or before the Commencement Date. If the Commencement Date
is a day other than the first day of a calendar month, then the Base Rent for
that month will be prorated on a daily basis. If the Termination Date is a day
other than the last day of a calendar month, then the Base Rent for that month
will be prorated on a daily basis.
(I) "Adjusted
Base Rent": Beginning on the first anniversary of the Commencement Date, the
Base Rent will be adjusted on each anniversary of the Commencement Date (or
nearest month-end for which data is published) (the "Adjustment
Date") to reflect increases in the Consumer Price Index for "All Urban
Consumers, U.S. City Average, All Items" issued by the Bureau of Labor
Statistics of the United States Department of Labor. The adjustments in the Base
Rent will be determined by multiplying the Minimum Guaranteed Rental by a
fraction, the numerator of which is the index number for the last month before
the adjustment and the denominator of which is the index number for the first
month of the first year of the Term. If the product is greater than the Minimum
Guaranteed Rent, Tenant will pay this greater amount as Base Rent until the next
rental adjustment. Base Rent will never be less than the Minimum Guaranteed
Rent. Landlord will notify Tenant of each adjustment to Base Rent no later than
sixty days after the Adjustment Date.
(m) Permitted
use: Tenant and ▇▇▇▇▇▇'s permitted sublessees and assignees shall use and occupy
the Demised Premises solely as a hospital, surgical center and/or medical
professional building. Tenant acknowledges that the above specification of a
"permitted use" means only that Landlord has no objection to the specified use
and does not include any representation or warranty by Landlord as to whether or
not such specified use complies with applicable laws and/or requires special
governmental permits. In this regard Tenant acknowledges that this Section
1.1 (m) is subject to Article
3 and Section
9.8 of this Lease.
1.2 Build-Out
of the Demised Premises. ▇▇▇▇▇▇▇▇ has contributed ONE HUNDRED FIFTY THOUSAND
($150,000.00) DOLLARS towards the construction of the improvements on the
Demised Premises. Tenant shall be responsible for all other costs of the project
and that Tenant has constructed the improvements at its sole cost in accordance
with the Plans attached as Exhibit "B".
THE.
▇▇▇▇▇▇▇ LAW FIRM LLP q HOUSTON,
TX
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All such
improvements shall be considered either fixtures or real property and none of
such shall be removed from the Demised Premises at the end of the
Lease.
ARTICLE
2
GRANTING
CLAUSE
Landlord
leases the Demised Premises to Tenant upon the terms and conditions set forth in
this Lease.
ARTICLE
3
DELIVERY
OF PREMISES
This
Article 3 is subject to any contrary requirements under applicable law; however,
by entering this lease agreement, ▇▇▇▇▇▇ admits and agrees that ▇▇▇▇▇▇ was
granted ample time and opportunity to inspect the Demised Premises and to have
qualified experts inspect the Demised Premises prior to the execution of this
Lease. Tenant agrees to and does hereby accept the Demised Premises, including
all improvements located on the Demised Premises, "AS IS" and "WHERE IS", "WITH
ALL FAULTS", with Tenant accepting all defects, if any; and Landlord makes no
warranty of any kind, express or implied, with respect to the Demised Premises
including the Build-Out of the Demised Premises, further, and without
limitation, Landlord makes no warranty as to the habitability, fitness or
suitability of the Demised Premises (including any Build-Out of the Demised
Premises) for a particular purpose nor as to the absence of any toxic or
otherwise hazardous substances. Also, Tenant acknowledges and agrees that
neither Landlord nor any of Landlord's representatives and agents (all of such
persons, including Landlord, being sometimes collectively referred to as
"Landlord Related Persons") have made or given any warranties, guaranties, or
representations of any kind whatsoever, whether oral or written, express or
implied; including without limitation, no express or implied warranties or
representations regarding the water, soil or geology of the Demised Premises,
the presence of or absence the of hazardous or toxic substances as such terms
are defined in federal, state or local laws, the status or effect of present
zoning or platting, if any, of the Demise Premises, or regarding the past or
present compliance of the Landlord with laws and regulations pertaining to
health, safety, design, construction, accessibility, land use, environmental
maters, pollution, or any laws pertaining to the handling, generating, treating,
storing, transporting or disposing of hazardous substances. It is further
recognized by the Tenant and Landlord that ▇▇▇▇▇▇ had the sole control over the
construction of the improvements on the Demised Premises.
ARTICLE
4
RENT
4.1
Rent accrues from the Commencement Date, and is payable to Landlord, at
▇▇▇▇▇▇▇▇'s address.
4.2
Tenant must pay to
Landlord Base Rent installments in the amounts specified in Section
1.1(k)
of this Lease. The first such monthly installment is due and payable on or
before the Commencement Date, and subsequent installments are due and payable on
or before the first day of each succeeding calendar month during the lease term;
provided that if the Commencement Date is a date other than the first day of a
calendar month, Tenant must pay on or before such date
as Base Rent for the balance of such calendar month a sum equal to that
proportion of the rent specified for the first full calendar month as herein
provided, which the number of days from the Commencement Date to the end of the
calendar month during which the Commencement Date falls bears to the total
number of days in such month.
THE.
▇▇▇▇▇▇▇ LAW FIRM LLP 0 HOUSTON, TX
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4.3
It is understood that the Base Rent is payable on or before the first day of
each calendar month (in
accordance with Section 4.1 and Section 4.2 above)
without offset or deduction of any nature. In the event any rent or other amount
owed to Landlord (including, without limitation, any amounts owed under the
terms of this Article
4 or under Article 6 below) is
not received by Landlord before the date which is 10 days after such amount's
due date, for any reason whatsoever, or if any payment for such an amount is by
check which is returned for insufficient funds, then in addition to the past due
amount, Tenant must pay to Landlord one of the following (the choice to be at
the sole option of the Landlord unless one of the choices is improper under
applicable law, in which event the other alternative will automatically be
deemed to have been selected): (a) a late charge in an amount equal to five (5%)
percent of the rent or other amount then due, in order to compensate Landlord
for its administrative and other overhead expenses; or (b) interest on the rent
or other amount then due at the maximum contractual rate which could legally be
charged in the event of a loan of such amount to Tenant (but in no event to
exceed 1-1/2% per month), such interest to accrue continuously on any unpaid
balance during the period commencing with the due date of such rent or other
amount and terminating with the date on which Tenant makes full payment of all
amounts owing to Landlord at the time of such payment. Any such late charge or
interest payment is payable as additional rent under this Lease and is payable
immediately on demand. If any payment for rent or other amount owed to Landlord
(including, without limitation, any amounts owed under the terms of this Article 4 or under
Article 6
below) is by check which is returned for insufficient funds, Tenant must
immediately make the required payment to Landlord in good funds; moreover,
Tenant must also pay to Landlord all other amounts specified by the terms of
this Lease (including, without limitation, interest or other charges required
under the terms of this Article 4 or under
Article 6
below), plus an additional fee of $150.00 to compensate Landlord for its expense
and effort in connection with the dishonored check.
4.4
If Tenant fails in two consecutive months to make rent payments within ten days
after they are
due, Landlord, in order to reduce its administrative costs, may require, by
giving written notice to Tenant (and in addition to any late charge or interest
accruing pursuant to Section 4.3 above, as well as any other rights and remedies
accruing pursuant to Article 22 below, or
any other provision of this Lease or at law), that Base Rents are to be paid
quarterly in advance instead of monthly and that all future rent payments are to
be made on or before the due date by cash, cashier's check or money order and
that the delivery of Tenant's personal or corporate check will no longer
constitute a payment of rent as provided in this Lease. Any acceptance of a
monthly rent payment or of a personal or corporate check thereafter by Landlord
cannot be construed as a subsequent waiver of such rights.
THE.
▇▇▇▇▇▇▇ LAW FIRM LLY 0
HOUSTON,
TX
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ARTICLE
5
RECORDS
AND FINANCIAL STATEMENTS
5.1
Tenant must, within ten (10) days after a request from Landlord {but not
more than once per
calendar year), deliver to Landlord such records and financial statements as are
reasonably required by Landlord to verify the net worth of Tenant and any
guarantor of Tenant's obligations under this Lease {including, without
limitation, a balance sheet showing then-current net worth of Tenant together
with a profit and loss statement for the most current fiscal year of Tenant).
Such statements must be certified to be correct by an officer of Tenant or an
independent certified public accountant and must be prepared in accordance with
generally accepted accounting principles. In the event that Tenant is a
subsidiary comprising only the operations conducted at the Demised Premises,
Tenant must also provide such statements from the parent company or larger
business of which Tenant is a part. In the event that Tenant is an individual,
the financial statements must be prepared in accordance with generally accepted
accounting standards governing personal financial statements and include all
assets and liabilities of the individual, including the operations conducted at
the Demised Premises as well as all other business activities. In lieu of
financial statements, Landlord may request the individual's most recent federal
income tax return.
5.2
Landlord shall use reasonable good faith efforts to keep confidential all
records and financial
statements supplied by ▇▇▇▇▇▇; however, ▇▇▇▇▇▇▇▇ has the right to reveal such
information to mortgagees, prospective purchasers and mortgagees (and agents in
such regard) and to Landlord's own managerial and administrative staff and
consultants.
ARTICLE
6
TENANT'S
RESPONSIBILITY FOR TAXES, OTHER REAL ESTATE CHARGES AND
INSURANCE
EXPENSES
6.1
Tenant is liable for all taxes levied against personal property and trade
fixtures placed by ▇▇▇▇▇▇
in the Demised Premises. If any such taxes are levied against Landlord or
Landlord's property and if Landlord elects to pay the same or if the assessed
value of Landlord's property is increased by inclusion of personal property and
trade fixtures placed by Tenant in the Demised Premises and Landlord elects to
pay the taxes based on such increase, Tenant must pay Landlord upon demand that
part of such taxes for which ▇▇▇▇▇▇ is primarily liable hereunder.
6.2
Tenant is also liable for all "real estate charges"
{as defined below) and "insurance expenses"
(as defined below) related to the Demised Premises or Landlord's ownership of
the Demised Premises. Tenant's obligations under this Section 6.2 will be
prorated during any partial year (i.e., the first year and the last year of the
lease term). "Real estate charges" includes ad valorem taxes; general and
special assessments; costs incurred in monitoring and disputing taxes, whether
paid to an outside consultant or otherwise; parking surcharges; any tax or
excise on rents; any tax or charge for governmental services (such as street
maintenance or fire protection); and any tax or charge which replaces any of
such above described "real estate charges"; provided, however, that "real estate
charges" does not include any franchise, estate, inheritance or general income
tax. "Insurance
expenses" includes all premiums and other expenses incurred by Landlord
for commercial liability insurance and Special Form or similar property
insurance (plus whatever endorsements or special coverages which Landlord, in
Landlord's sole discretion, may consider appropriate).
THE.
▇▇▇▇▇▇▇ LAW FIRM LLP q HOUSTON,
TX
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6.3 Landlord
may, from time-to-time, make monthly or other periodic charges based upon
the
estimated annual total of all real estate charges and insurance expenses and
direct that Tenant prepay monthly a pro-rata portion of the prospective future
payment (i.e., the prospective future payment divided by the number of months
before the prospective future payment will be due). ▇▇▇▇▇▇ agrees that any such
prepayment directed by ▇▇▇▇▇▇▇▇ is due and payable monthly on the same day that
Base Rent is due and is subject to adjustment at the end of the year on the
basis of the actual real estate charges and insurance expenses for such
year.
6.4 ▇▇▇▇▇▇
agrees that, as between ▇▇▇▇▇▇ and Landlord, ▇▇▇▇▇▇▇▇ has the sole and
absolute
right to contest taxes levied against the Demised Premises (other than taxes
levied directly against ▇▇▇▇▇▇'s personal property within, or sales made from,
the Demised Premises). Therefore, Tenant, to the fullest extent permitted by
law, irrevocably waives any and all rights that Tenant may have to receive from
Landlord a copy of notices received by Landlord regarding the appraisal or
reappraisal, for tax purposes, of all or any portion of the Demised Premises
(including, without limitation, any rights set forth in 841.413 of the Texas
Property Tax Code, as such may be amended from time-to-time). Additionally,
Tenant, to the fullest extent permitted by law, hereby irrevocably assigns to
Landlord any and all rights of Tenant to protest or appeal any governmental
appraisal or reappraisal of the value of all or any portion of the Demised
Premises (including, without limitation, any rights set forth in 941.413 and
942.015 of the Texas Property Tax Code, as such may be amended from
time-to-time). ▇▇▇▇▇▇ agrees without reservation that it will not protest or
appeal any such appraisal or reappraisal before a governmental taxing authority
without the express written authorization of Landlord.
ARTICLE
7
CONSTRUCTION
BY TENANT
7.1 Tenant
may, at any time and from time-to-time during the term of this Lease, erect,
maintain,
alter, remodel, reconstruct, rebuild, replace, and remove buildings and other
improvements on the premises, and correct and change the contour of the
premises, subject to the following:
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a.
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Tenant
bears the cost of any such work.
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b.
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The
Demised Premises must at all time be kept free of all mechanic's and
materialmen's liens.
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c.
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▇▇▇▇▇▇▇▇
must be notified of the time for beginning and the general nature of any
such work, other than routine maintenance of the exiting building or
improvements, at the time the work
begins.
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d.
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The
conditions of Section
7.4 concerning ▇▇▇▇▇▇▇▇'s approving plans must be
followed.
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7.2
Landlord must make reasonable efforts to cooperate with Tenant concerning
easements,
dedications, zoning, and restrictions of the Demised Premises, provided however,
Tenant shall exclusively bear the costs and expenses incurred by Landlord in
taking such actions or providing such cooperation.
THE.
▇▇▇▇▇▇▇ LAW FIRM LIT 0 HOUSTON, TX
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7.3
[INTENTIONALLY OMITTED.'
7.4
The following rules govern ▇▇▇▇▇▇▇▇'s approving construction additions, and
alterations of the
buildings or other improvements on the Demised Premises:
a. Written
Approval Required. No building or improvement may be constructed on the
Demised Premises unless the plans, specifications, and proposed location of the
building or other improvement has received Landlord's written approval and the
building or other improvement complies with the approved plans and
specifications and proposed location. No material addition to or alteration of
any building or structure erected on the Demised Premises may be begun until
plans and specifications covering the exterior of the proposed addition or
alteration have been first submitted to and approved by the
Landlord.
b. Submission
of Plans. Tenant must, at its own expense, engage a licensed architect
or engineer to prepare plans and specifications for constructing a surgical
center and medical professional building or additions or alterations to
buildings that require Landlord's approval under subparagraph a above. Tenant
must submit three (3) copies of detailed working drawings, plans, and
specifications for construction and or alterations to buildings or improvements
for any such projects for Landlord's approval before the project
begins.
c. Landlord's
Approval. Landlord will promptly review and approve all plans submitted
under subparagraph b above or note in writing any required changes that must be
made to plans. Any required changes must be made and resubmitted to
Landlord.
d. Effect
of Approval. ▇▇▇▇▇▇▇▇'s approval of any plans applies only to the conformity
of the plans to the general architectural plan for the Demised Premises and does
not constitute approval of the architectural or engineering design, and
Landlord, by approving the plans and specifications, assumes no liability or
responsibility for the architectural or engineering design or for any defect in
any building or improvement constructed from the plans or
specifications.
7.5
Any buildings, improvements, additions, alterations, and fixtures constructed,
placed or
maintained on the Demised Premises during the term of the Lease are considered
part of the real property of the Demised Premises and must remain on the Demised
Premises and become the property of the Landlord when the Lease terminates.
Further, all plans and specifications for constructing a surgical center and
medical professional building or additions or alterations, to buildings
(including detailed working drawings, plans, and specifications for construction
and or alterations to buildings or improvements) prepared at the direction of
Tenant for the Demised Premises shall be the property of the
Landlord.
7.6
All construction work done by Tenant within the Demised Premises must be
performed in a good
and workmanlike manner and in compliance with all governmental requirements.
▇▇▇▇▇▇ agrees to indemnify Landlord and hold Landlord harmless against any loss,
liability or damage resulting from such work, and ▇▇▇▇▇▇ must, if requested by
Landlord, furnish a bond or other security satisfactory to Landlord against any
such loss, liability or damage.
THE.
▇▇▇▇▇▇▇ LAW FIRM LLP Q HOUSTON,
TX
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7.7
In the event
▇▇▇▇▇▇ uses a general contractor to perform construction work within the
Demised
Premises, Tenant must, prior to the commencement of such work, require such
general contractor to execute and record a Bond to Pay Claims (the
"Bond") in accordance with Chapter 53, Subchapter I of the Texas Property Code,
as such may be amended, superseded or replaced from time-to-time, and must
deliver a copy of the recorded Bond to Landlord. The delivery of the Bond within
the time period set forth above is a condition precedent to ▇▇▇▇▇▇'s ability to
enter on and begin its construction work at the Demised Premises and, if
applicable, to any reimbursement from Landlord for the cost of its construction
work.
ARTICLE
8
ENCUMBRANCE
OF LEASEHOLD ESTATE
Tenant
may not, at any time and from time-to-time, encumber the leasehold interest, by
deed of trust mortgage, or other security instrument without obtaining the
Landlord's consent, but no such encumbrance constitutes a lien on Landlord's fee
title. The indebtedness secured by the encumbrance will at all times be and
remain inferior and subordinate to all conditions, covenants, and obligations of
this Lease and all of Landlord's rights under this Lease.
ARTICLE
9
USE
AND CARE OF DEMISED PREMISES
9.1
Tenant must commence business operations in the Demised Premises on or
immediately after the
Commencement Date and must operate its business in an efficient, high class and
reputable manner. Tenant must not at any time leave the Demised Premises vacant,
but must in good faith continuously throughout the term of this Lease conduct
and carry on in the entire Demised Premises the type of business for which the
Demised Premises is leased. ▇▇▇▇▇▇ agrees that if Tenant fails to operate its
business on the Demised Premises or deserts or vacates the Demised Premises,
then Tenant must pay monthly at the same time Base Rent is due.
9.2
The Demised Premises may be used only for the purpose or purposes specified in
Section
1.1 (m) above, and only under the trade name specified in Section
1.1 (e) above (or, if Section
1.1(e) is not filled in, any trade name approved in advance in writing by
Landlord), and for no other purpose and under no other trade name.
9.3
Tenant must not, without Landlord's prior written consent, keep anything within
the Demised
Premises or use the Demised Premises for any purpose which creates a risk of
toxic or otherwise hazardous substances or which increases the insurance premium
cost or invalidates any insurance policy carried on the Demised Premises or
other parts of the Demised Premises. Tenant must comply with all regulations and
requirements of applicable health and safety authorities for the disposal of
medical wastes. Tenant must arrange for regular and frequent disposal of such
medical wastes. All property kept, stored or maintained within the Demised
Premises by Tenant is at Tenant's sole risk. Tenant indemnifies Landlord and
holds Landlord harmless from and against any and all liability, liens, claims,
demands, damages, expenses, fees, costs, fines, penalties, suits, proceedings,
actions and causes of action (including without limitation all attorneys' fees
and expenses) arising out of or relating to, directly or indirectly, any
violation or alleged violation by Tenant of any law, rule, regulation, order or
determination of any government authority pertaining to health or the
environment relating to the Demised Premises ("Environmental
Laws"), now existing or hereafter arising, except for violations of
Environmental Laws caused by Landlord. This indemnification survives the
expiration or termination of this Lease. ▇▇▇▇▇▇ must immediately notify Landlord
if ▇▇▇▇▇▇ suspects, discovers or receives notice with Landlord in identifying
and investigating any such violation or suspected violation. ▇▇▇▇▇▇ further
agrees to abide by the terms of any and all protocols, procedures and agreements
of which Landlord gives Tenant written notice and which address the detection,
management or remediation of environmental or health hazards at the Demised
Premises.
THE.
▇▇▇▇▇▇▇ LAW FIRM LLP q HOUSTON,
TX
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9.4
Tenant is responsible for keeping the Demised Premises secure and the
expenditures related
thereto (to at least be generally in keeping with similar Demised Premises
within the same
geographical area as the Demised Premises). TENANT ACKNOWLEDGES AND AGREES
THAT LANDLORD MAKES NO
REPRESENTATION OR WARRANTY REGARDING THE SECURITY OF THE DEMISED PREMISES OR
THE MANNER OR ADEQUACY OF SECURITY SERVICES TO BE PROVIDED BY
TENANT.
9.5
Tenant must not permit any objectionable or unpleasant noises or odors to
emanate from the
Demised Premises; nor place or permit any radio, television, loudspeaker or
amplifier on the roof or outside the building or the Demised Premises or where
the same can be seen or heard from outside the building nor place any antenna,
equipment, awning, fixture or other projection on the exterior of or above the
Demised Premises; nor take any other action which would constitute a nuisance or
would disturb the peace; nor permit any unlawful or immoral practice to be
carried on or committed on the Demised Premises; nor do anything which would
tend to injure the reputation of the Demised Premises. In the event Tenant uses
all or any portion of the Demised Premises for food preparation, Tenant must
comply with all regulations and requirements of applicable health and safety
authorities, including, if required by such authorities, installing an adequate
grease trap (or verifying that the existing grease trap, if there is one, is
adequate). Tenant must arrange for regular and frequent cleaning of any such
grease trap so as to fully and completely prevent any overflow of the grease
trap.
9.6
Tenant must take good care of the Demised Premises and keep the Demised Premises
free from
waste at all times. Tenant must not overload the floors in the Demised Premises,
nor deface or injure the Demised Premises. Tenant at all times must keep the
Demised Premises neat, clean and free from dirt and rubbish; must take care that
dirt, refuse, and garbage from or connected with the Demised Premises does not
collect on the sidewalks, service ways and loading areas adjacent to or serving
the Demised Premises or any other portion of the Demised Premises; and must keep
the sidewalks, service ways and loading areas adjacent to or serving the Demised
Premises free from ice and snow. Tenant must store all trash and garbage within
the Demised Premises and deposit it in the trash dumpster or other container
designated for such type of trash and garbage. Tenant will arrange for the
regular pick-up of such trash and garbage, as well as medical waste, at Tenant's
sole cost and expense. Tenant must not operate an incinerator or burn trash or
garbage within the Demised Premises.
9.7
Tenant must include the address and identity of its business activities in the
Demised Premises
in all advertisements made by Tenant in which the address and identity of any
similar local business activity of Tenant is mentioned.
THE.
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9.8
Tenant must
procure at its sole expense any permits and licenses required for the
transaction of business in the Demised Premises and otherwise comply with
all applicable laws, ordinances and governmental regulations. In addition, if
the nature of ▇▇▇▇▇▇'s business makes it advisable for Tenant to take any extra
precautions {for example, in the case of a business which is affected by
so-called "dram shop" laws, Tenant's compliance with all "dram shop" educational
programs and procedures), Tenant must take all such extra precautions. At
Landlord's request, ▇▇▇▇▇▇ must deliver to Landlord copies of all such permits
and licenses and proof of Tenant's compliance with all such laws, ordinances,
governmental regulations and extra precautions.
ARTICLE
10
MAINTENANCE
AND REPAIR OF DEMISED PREMISES
10.1
At all times during the term of the Lease, Tenant must keep and maintain
all buildings (including foundation, exterior walls, and roof) and improvements
in good state of appearance and repair at Tenant's sole cost and expenses. The
provisions of the first sentence of this Section
10.1 are expressly recognized to be subject to the provisions of Article
3, Article 17 and
Article 18 of this Lease. Tenant must keep the Demised Premises in good,
clean and habitable condition and must at its sole cost and expense keep the
Demised Premises free of insects, rodents, vermin and other pests and make all
needed repairs and replacements, including replacement of cracked or broken
glass; except for repairs and replacements required under the provisions of
Article
17 and Article 18. Without limiting the coverage of the previous
sentence, it is understood that Tenant's responsibilities therein include the
repair and replacement of all lighting, heating and air conditioning, plumbing
and other electrical, mechanical and electromotive installation, equipment and
fixtures and also include all utility repairs in ducts, conduits, pipes and
wiring, and any sewer stoppage located in any lines which exclusively serve the
Demised Premises, regardless of when or how the defect or other cause for repair
or replacement occurred or became apparent. if any repairs required to be made
by Tenant hereunder are not made within ten days after written notice delivered
to Tenant by Landlord or, in the case of a situation which by its nature
requires an immediate response or a response within less than ten (10) days,
Landlord may at its option make such repairs without liability to Tenant for any
loss or damage which may result to its business by reason of such repairs; and
Tenant must pay to Landlord upon demand, as additional rent hereunder, the cost
of such repairs plus interest at the maximum contractual rate which could
legally be charged in the event of a loan of such payment to Tenant (but in no
event to exceed 1-112%
per month), such interest to accrue continuously from the date of payment by
Landlord until repayment by ▇▇▇▇▇▇. At the expiration of this Lease, ▇▇▇▇▇▇ must
surrender the Demised Premises in good condition, excepting reasonable wear and
tear and losses required to be restored under Article
17 and Article 18 of this Lease.
ARTICLE
11
[INTENTIONALLY
OMITTED]
ARTICLE
12
LANDLORD'S
RIGHT OF ACCESS
12.1
Landlord is entitled to enter upon the Demised Premises at any time for
the purpose of inspecting the same, or of showing the Demised Premises to
prospective purchasers, tenants or lenders, or of making repairs to the Demised
Premises, or of making repairs, alterations or additions to (a) adjacent
premises, or (b) the building systems serving the building within which
the Demised
Premises are located or serving any other tenant premises within such
building.
THE.
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12.2
Tenant will permit Landlord to place and maintain "For Rent" or "For Lease"
signs on the Demised Premises during the last 180 days of the lease term, it
being understood that such signs in no way affect Tenant's obligations pursuant
to Section
13.1 or any other provision of this Lease.
ARTICLE
13
SIGNS;
STORE FRONTS
13.1
Tenant agrees to install first-class signage on the Demised Premises, acceptable
to Landlord in its sole discretion, on or prior to the Commencement Date and to
maintain such signage during the term of this Lease. Tenant agrees that if
Tenant fails to install or maintain such sign as required in this Section
13.1, then Tenant must pay monthly at the same time Base Rent is due, as
liquidated damages (it being understood and agreed that actual damages would be
very difficult to assess, but such liquidated damages are a fair estimate of the
actual damages), an amount equal to fifteen percent (15%) of the Base Rent
payable for the month (or months) in which Tenant does not have the required
signage, or does not have well maintained signage, on the Demised Premises. The
liquidated damages described above do not and cannot be deemed to limit
Landlord's rights under Article
22 of this Lease.
13.2
Tenant must not, without Landlord's prior written consent (a) make any changes
to the building front, or (b) install any exterior signs, windows or door
lettering, placards, or advertising media of any type, lighting, decorations,
paintings, awnings, canopies or the like, or (c) erect or install any interior
signs, window or door lettering, placards, decorations or advertising media of
any type within three (3) feet of any exterior storefront, window, or wall. All
signs, lettering, placards, banners, portable signs, decorations and advertising
media (including the sign required by Section
13.1 above) must conform in all respects to the sign criteria established
by Landlord for the Demised Premises from time-to-time in the exercise of its
sole discretion. All signage (including, without limitation, the signage
required bySection
13.1 above) is subject to Landlord's requirements as to construction,
method of attachment, size, shape, height, lighting, color and general
appearance. Tenant must keep all signs in good condition and in proper operating
order at all times.
ARTICLE
14
UTILITIES
14.1.
Tenant must promptly pay all charges for electricity, water, gas, telephone
service, trash removal, sewer service and other utilities furnished to the
Demised Premises. Landlord may, if it so elects, furnish one or more utility
services to Tenant, and in such event Tenant must purchase the use of such
services as are tendered by Landlord, and must pay on demand as additional rent
the rates established therefor by Landlord which cannot exceed the rates which
would be charged for the same services if furnished directly by the local public
utility companies. Landlord may at any time discontinue furnishing any such
service without obligation to Tenant other than to connect the Demised Premises
to the public utility, if any, furnishing such service. In addition, if certain
utilities are furnished to the Demised Premises in common with other premises,
then Landlord may (a) estimate the amount used by each tenant and bill each
tenant accordingly, or (b) install, at ▇▇▇▇▇▇'s expense, a sub-meter, in which
event Landlord will bill each tenant for the amount used according to that
tenant's submeter. Any amounts Landlord bills to Tenant under the terms of this
Section
14.1 will be considered additional rent and will be due within thirty
(30) days after the date upon which Landlord delivers such bill to
Tenant.
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14.2
Landlord is not liable for any interruption whatsoever in utility
services.
ARTICLE
15
INSURANCE
COVERAGES
15.1
Tenant must, at Tenant's sole cost and expense, procure and maintain the
insurance described below in accordance with the requirements set forth
below:
a.
The minimum insurance coverages are as follows:
(i) Property
insurance (the "Tenant's Property Insurance") which covers: (a) the
Demised Premises for damages to the Demised Premises in the amount of $3 million
for comprehensive (property) damages; (b) all of Tenant's personal property in,
on, at, or about the Demised Premises, including, without limitation, Tenant's
furniture, trade fixtures, equipment, inventory, and merchandise (collectively,
"Tenant's
Personal Property");
and (c) all improvements to the Demised Premises. Tenant's Property Insurance
must be written on the broadest available "special form", policy form; must
include an agreed-amount endorsement for no less than one hundred percent (100%)
of the full replacement cost of the Tenant's Personal Property (new, without
deduction for depreciation), the Demised Premises and improvements to the
Demised Premises; must be written in amounts of coverage that meet any
coinsurance requirements of the policy or policies; must include vandalism and
malicious mischief coverage and sprinkler coverage; and must name Landlord as an
"insured as its interest may appear."
(ii) Commercial general liability insurance
( "Tenant's
Liability Insurance") written
on an "occurrence" policy form, covering Bodily Injury, Property Damage, and
Personal Injury (all as defined in Section
16.2 below), arising out of or relating, directly or indirectly, to
Tenant's business operations, conduct, assumed liabilities, or use or occupancy
of the Demised Premises. Tenant's Liability Insurance must include the broadest
available form of contractual liability coverage. It is the intent of Landlord
and Tenant that ▇▇▇▇▇▇'s contractual liability coverage will provide coverage to
the maximum extent possible of Tenant's indemnification obligations under this
Lease. The minimum acceptable limits for Tenant's Liability Insurance are
$2,000,000 per occurrence. Tenant must cause the Landlord Parties (as defined in
Section
16.2 below)
to be named as "additional insureds" by endorsement satisfactory in form and
substance to Landlord.
(iii) Workers'
Compensation Insurance and Employer's Liability Insurance. The minimum
acceptable limits for the Worker's Compensation Insurance are as set forth in
the applicable statutes of the State of Texas and for the Employer's Liability
Insurance are $500,000 per each accident, $500,000 disease per employee, and
$500,000 disease policy limit. All such policies must contain waivers of
subrogation in favor of Landlord.
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(iv)
At all times during which construction work is being performed by or on
behalf of
Tenant at the Demised Premises, Tenant must maintain "Builder's Risk" insurance,
covering the full replacement value of all such work being performed, naming
Landlord as an "insured as its interest may appear," and being written in
amounts of coverage that meet any coinsurance requirements of the policy or
policies.
b.
The insurance requirements set forth in Section
15.1 (a) are independent of Tenant's waiver, indemnification, and other
obligations under this Lease and cannot be construed or interpreted in any way
to restrict, limit, or modify Tenant's waiver, indemnifications, and other
obligations or to limit in any way Tenant's liability under this Lease. In
addition to the requirements set forth in Section
15.1 (a), each insurance company issuing one or more of policies of
insurance Tenant is required to carry under this Article
15 must have a rating of no less than ANIII in the current Best's
Insurance Guide or A- in the current Standard and Poor Insurance Solvency Review
and must be admitted to engage in the business of insurance in the State of
Texas. The insurance Tenant is required to carry under this Lease must be
primary insurance for all claims under such insurance and must provide that any
insurance carried by the Landlord Parties is strictly excess, secondary, and
noncontributing with any insurance carried by Tenant. The insurance Tenant is
required to carry under this Lease must provide that it cannot be canceled, not
renewed, or be subject to a change in coverage or limits of coverage except
after thirty (30) days' prior written notice to Landlord and ▇▇▇▇▇▇▇▇'s lenders.
Tenant is permitted to provide its insurance through a blanket policy as long as
Tenant, at Tenant's sole cost and expense, procures a "per
location" endorsement, or an equivalent reasonably acceptable to
Landlord.
c. Tenant
must deliver
to Landlord adequate proof that Tenant is carrying the type and amount of
insurance coverage required by this Lease before ▇▇▇▇▇▇ enters onto the Demised
Premises and at any time (but no more than twice per year) upon request from
Landlord. Additionally, Tenant must deliver to Landlord, no less than thirty
(30) days before the expiration date of any policy, adequate proof that Tenant
has obtained renewal or replacement coverage for at least one (1) year
immediately following such expiration. While the following checklist does not
override the requirements of the preceding sentences, it is intended to give
Tenant a preliminary checklist of the insurance documentation Landlord
requires:
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▇▇▇▇▇
Form 27 "Evidence of Insurance" (for Property Insurance, Builder's Risk
Insurance, Commercial General Liability Insurance, Worker's Compensation
Insurance, and Employers' Liability
Insurance).
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Copies
of all additional insured endorsements (which must be on ISO Form 2026 or
an ISO form which replaces such
form).
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Copies
of all loss payee endorsements.
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Copies
of all mortgagee clauses.
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Copies
of all waivers of subrogation.
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ARTICLE
16
WAIVER
OF LIABILITY; WAIVER OF SUBROGATION
16.1 To
the fullest extent permitted by law, Tenant hereby indemnifies and holds the
Landlord Parties (as defined in Section
16.2 below) harmless from and against all Claims (as defined in Section
16.2 below) arising from (i) any Personal Injury, Bodily Injury, or
Property Damage (all as defined in Section
16.2 below) whatsoever in the Demised Premises, and (ii) any Bodily
Injury to any employee of any Tenant Party (as defined in Section 16.2
below) arising out of and in the course of such employee's employment (the
matters set forth in "(i)" and "(ii)" above are referred to in this Lease
collectively as the "Matters
Indemnified by ▇▇▇▇▇▇"
and individually as a "Matter
Indemnified by ▇▇▇▇▇▇"). To the fullest extent permitted by law, Tenant,
on behalf of all Tenant Parties, waives any and all Claims against the Landlord
Parties arising from (i) any of the Matters Indemnified by ▇▇▇▇▇▇, and (ii) any
loss or damage to property of a Tenant Party located in the Demised Premises by
casualty, theft or otherwise. Tenant, at ▇▇▇▇▇▇'s expense, must assume on behalf
of the Landlord Parties and conduct with due diligence and in good faith the
defense of any Matter Indemnified by ▇▇▇▇▇▇. The defense must be by counsel
satisfactory to Landlord, but ▇▇▇▇▇▇▇▇ agrees not to unreasonably withhold or
delay its approval of such counsel. ▇▇▇▇▇▇▇▇ further agrees to cooperate in
▇▇▇▇▇▇'s defense of any action or proceeding brought by a person or entity in
connection with any Matter Indemnified by ▇▇▇▇▇▇. Any final settlement by Tenant
of any action or proceeding in connection with any Matter Indemnified by Tenant
must be approved by Landlord, which approval may not be unreasonably withheld or
delayed. Each Landlord Party has the right, at its option, to be represented by
advisory counsel of its own selection and at its own expense. In the event of
failure by Tenant to fully perform in accordance with this indemnification, each
Landlord Party, at its option, and without relieving Tenant of its obligations
under this Section may so perform, but Tenant must reimburse such Landlord Party
for all costs and expenses so incurred, together with interest at the maximum
contractual rate permitted at law. Tenant's obligations under this Section
16.1 are not and cannot be deemed to be limited to damages, compensation
or benefits payable under insurance policies, worker's compensation acts,
disability benefit acts or other employees' benefit acts.
16.2 The
following terms have the following definitions:
"Bodily
Injury," "Personal Injury," and "Property Damage" have the same meanings as in
the standard form of commercial general liability insurance policy.
"Claims"
means any and all liabilities, claims, damages (including, consequential
damages), losses, penalties, demands, causes of action (whether in tort or
contract, in law or at equity, or otherwise), suits judgments, disbursements,
charges, assessments, and expenses (including attorneys' and experts' fees and
expenses) incurred in investigating, defending, or prosecuting any litigation,
claim, proceeding, or cause of action (whether in tort or contract, in law or at
equity, or otherwise).
"Landlord
Parties" means (a) Landlord, Landlord's partners, affiliated companies of
Landlord or of any partner of Landlord,(b) ▇▇▇▇▇▇▇▇'s lenders, and (c) as to
each of the persons or entities listed in "(a)" and "(b)" above, the following
persons or entities: such person or entity's partners, partners of their
partners, and any successors, assigns, heirs, personal representatives,
devisees, agents, stockholders, officers, directors, employees, and affiliates.
"Landlord Party" means any one of the Landlord Parties.
THE,
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"Tenant
Parties" means (a) Tenant itself, (b) any contractor of Tenant, (c) the
employees
of Tenant or of any contractor of Tenant, (d) any person that Tenant or any
contractor of Tenant's controls or exercises control over, (e) any invitee of
Tenant, (f) any licensee of Tenant, (g) subtenants of Tenant, (h) as to each of
the persons or entities listed in "(a)" through and including "(g)" above, the
following persons: such person or entity's partners, partners of their partners,
and all successors, assigns, heirs, personal representatives, devisees, agents,
stockholders, officers, directors, employees, and affiliates of such parties.
"Tenant Party" means any one of the Tenant Parties.
16.3
EXCEPT AS SET FORTH IN THE NEXT-SUCCEEDING SENTENCE, THE INDEMNITIES AND WAIVERS
CONTAINED IN SECTION
16.1 APPLY REGARDLESS OF THE ACTIVE OR PASSIVE NEGLIGENCE OR SOLE, JOINT,
CONCURRENT, OR COMPARATIVE NEGLIGENCE OF THE LANDLORD PARTIES AND REGARDLESS OF
WHETHER LIABILITY WITHOUT FAULT OR STRICT LIABILITY IS IMPOSED OR SOUGHT TO BE
IMPOSED ON ANY OF THE LANDLORD PARTIES. IF THE FINAL JUDGMENT OF A COURT OF
COMPETENT JURISDICTION ESTABLISHES, UNDER THE PRINCIPLES OF COMPARATIVE
NEGLIGENCE IN THE STATE OF TEXAS, THAT THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT
OF A LANDLORD PARTY PROXIMATELY CAUSED A PERCENTAGE OF THE DAMAGE SUFFERED BY A
THIRD PARTY, THEN, AS TO SUCH PERCENTAGE ONLY, THE INDEMNITIES AND WAIVERS
CONTAINED IN SECTION
16.1 WILL NOT APPLY TO SUCH LANDLORD PARTY, BUT WILL APPLY TO ANY DAMAGE
IN EXCESS OF SUCH PERCENTAGE AND TO ALL OF THE OTHER LANDLORD
PARTIES.
16.4
Tenant hereby releases the Landlord from any and all liability or responsibility
to the Tenant, or to any other party claiming through or under Tenant by way of
subrogation or otherwise, for any loss or damage to property caused by a
casualty which is insurable under standard "all risk" or "special form" or
similar property insurance and agree to obtain an endorsement to that effect in
their respective "all risk" or "special form" or similar property insurance
policies; provided, however, that this waiver and agreement is applicable only
with respect to a loss or damage occurring during the time when "all risk" or
"special form" or similar property insurance policies which are readily
available in the marketplace contain a clause or permit an endorsement to the
effect that any such release does not adversely affect or impair the policy or
the right of the insured party to receive proceeds under the policy; provided,
further, that this release is not applicable to the portion of any damage which
is not reimbursed by the damaged party's insurer because of the "deductible" in
the damaged party's insurance coverage or otherwise. The release specified in
this Section 16.4 is cumulative with any releases or exculpations which may be
contained in other provisions of this Lease.
ARTICLE
17
DAMAGES
BY CASUALTY
17.1
Tenant must give immediate written notice to the Landlord of any damage caused
to the Demised Premises by fire or other casualty.
17.2 In
the event that the Demised Premises are damaged or destroyed by fire or any
other casualty, regardless of the extent of the damage or destruction, ▇▇▇▇▇▇▇▇
agrees to deliver to Tenant, within ninety (90) days after ▇▇▇▇▇▇ delivers to
Landlord the written notice required by the terms of Section
17.1 above, a realistic construction schedule, prepared by a reputable
general contractor acceptable to Landlord, setting forth such general
contractor's estimated time
periods to substantially complete the repair and reconstruction. Thereafter,
within six (6) months of the date of the damage or destruction, Landlord must
begin the repair, replacement, or reconstruction of the damaged or destroyed
building or improvement and pursue the repair, reconstruction or replacement
with reasonable diligence so as to restore the building to substantially the
same condition it was in before the casualty.
THE.
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17.3 In the event the Demised Premises
are damaged or destroyed
by fire or other casualty,
and the holder of any
mortgage, deed of trust or other lien senior to this Lease elects under
the terms of its security
documents to apply all or any portion of the insurance proceeds to the reduction of Landlord's
indebtedness, then Landlord may terminate this Lease within sixty (60) days
after Landlord delivers the Construction Schedule to Tenant. Any termination
under this Section
17.3 will be effective on
the date such notice is delivered to Tenant. If Landlord fails to terminate this
Lease in the manner set forth above, then Landlord will be deemed to
have waived the
termination right under this Section
17.3.
17.4
Tenant agrees that during any period of reconstruction or repair of the Demised
Premises, it will continue the operation of its business within the Demised
Premises to the extent practicable. During the period from the occurrence of any
casualty at the Demised Premises until ▇▇▇▇▇▇▇▇'s required repairs are
completed, the Base Rent will be reduced to such extent as may be fair and
reasonable under the circumstances; however, there will be no abatement of the
other charges provided for in this Lease.
ARTICLE
18
EMINENT
DOMAIN
18.1 If
more than thirty (30%) percent of the floor area of the Demised Premises should
be taken for any public or quasi-public use under any governmental law,
ordinance or regulation or by right of eminent domain or by private purchase in
lieu thereof, this Lease will terminate, effective on the date physical
possession is taken by the condemning authority.
18.2 If
less than thirty percent (30%) of the floor area of
the Demised Premises should be taken as aforesaid, this Lease will not
terminate; however, the Base Rent payable hereunder during the unexpired portion
of this Lease will be reduced in proportion to the area taken, effective on the
date physical possession is taken by the condemning authority. Following such
partial taking, Landlord must make all necessary repairs or alterations to the
remaining Demised Premises.
18.3 All
compensation awarded for any taking (or the proceeds of private sale in lieu
thereof) of the Demised Premises is the property of Landlord, and Tenant hereby
assigns its interest in any such award to Landlord; provided, however, Landlord
has no interest in any award made to Tenant for Tenant's moving and relocation
expenses or for the loss of Tenant's fixtures and other tangible personal
property if a separate award for such items is made to Tenant, as long as such
separate award does not reduce the amount of the award that would otherwise be
awarded to Landlord.
THE.
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ARTICLE
19
ASSIGNMENT
AND SUBLETTING
19.1
Tenant is not permitted to assign or in any manner transfer this Lease or any
estate or interest therein, or sublet the Demised Premises or any part thereof,
or grant any license, concession or other right of occupancy of any portion of
the Demised Premises without the prior written consent of Landlord. ▇▇▇▇▇▇▇▇
agrees that it will not withhold consent in a wholly unreasonable and arbitrary
manner (as further explained in Section
28.4 of this Lease); however, in determining whether or not to grant its
consent, Landlord is entitled to take into consideration factors such as the
experience, reputation and financial condition of the proposed transferee, and
the then-current market conditions (including market rents). In addition,
Landlord is entitled to charge Tenant a reasonable fee for processing Tenant's
request. Consent by Landlord to one or more assignments or sublettings does not
operate as a waiver of Landlord's rights as to any subsequent assignments and
sublettings.
19.2 If
Tenant is a corporation, partnership or other entity and if at any time during
the term of this Lease the person or persons who own a majority of either the
outstanding voting rights or the outstanding ownership interests of Tenant at
the time of the execution of this Lease cease to own a majority of such voting
rights or ownership interests or otherwise lose control (except as a result of
transfers by devise or descent), then such loss of a majority of such voting
rights or ownership interests or control will be deemed to be an assignment of
this Lease by ▇▇▇▇▇▇ and, therefore, subject in all respects to the provisions
of Section
19.1 above.
19.3 Any
assignee or sublessee of an interest in and to this Lease will be deemed, by
acceptance of such assignment or sublease or by taking actual or constructive
possession of the Demised Premises, to have assumed all of the obligations set
forth in or arising under this Lease. Such assumption will be effective as of
the earlier of the date of such assignment or sublease or the date on which the
assignee or sublessee obtains possession of any portion of the Demised
Premises.
19.4
Notwithstanding any assignment or subletting, Tenant and any guarantor of
Tenant's obligations under this Lease will at all times remain fully responsible
and liable for the payment of the rent herein specified and for compliance with
all of its other obligations under this Lease (even if future assignments and
sublettings occur subsequent to the assignment or subletting by Tenant, and
regardless of whether or not Tenant's approval has been obtained for such future
assignments and sublettings). Moreover, in the event that the rent due and
payable by a sublessee (or a combination of the rent payable under such sublease
plus any bonus or other consideration therefor or incident thereto) exceeds the
rent payable under this Lease, or if with respect to a permitted assignment,
permitted license or other transfer by Tenant permitted by Landlord, the
consideration payable to Tenant by the assignee, licensee or other transferee
exceeds the rent payable under this lease, then Tenant is bound and obligated to
pay Landlord all such excess rent 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 an assignment
or subletting, it is understood and agreed that Tenant will receive all rents
paid to Tenant by an assignee or sublessee in trust for Landlord, to be
forwarded immediately to Landlord without offset or reduction of any kind; and
upon election by Landlord such assignee or sublessee must pay all rents directly
to Landlord as specified in Article
4 of this Lease (to be applied as a credit and offset to Tenant's rent
obligation).
THE.
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19.5
Tenant is not permitted to mortgage, pledge or otherwise encumber its interest
in this Lease or in the Demised Premises except as provided in Article
8.
19.6
Landlord, in its sole discretion, may transfer or assign in whole or part its
interest in this Lease and in the building containing the Demised Premises. In
the event of the transfer and assignment by Landlord of its interest in this
Lease and in the building containing the Demised Premises to a person expressly
assuming Landlord's obligations under this Lease, Landlord will thereby be
released from any further obligations hereunder, and ▇▇▇▇▇▇ agrees to look
solely to such successor-in-interest of Landlord for performance of such
obligations. Any security given by ▇▇▇▇▇▇ to secure performance of ▇▇▇▇▇▇'s
obligations hereunder may be assigned and transferred by Landlord to such
successor-in-interest and ▇▇▇▇▇▇▇▇ will thereby be discharged of any further
obligation relating thereto.
ARTICLE
20
SUBORDINATION;
ATTORNMENT; ESTOPPELS
20.1
Tenant accepts this Lease subject and subordinate to any mortgage, deed of trust
or other lien presently existing or hereafter placed upon the Demised Premises
or any portion of the Demised Premises which includes the Demised Premises, and
to any renewals and extensions thereof. ▇▇▇▇▇▇ agrees that any mortgagee has the
right at any time to subordinate its mortgage, deed of trust or other
lien to this Lease; provided, however, notwithstanding that this Lease
may be (or be made to be) superior to a mortgage, deed of trustor other lien,
the mortgagee will not be liable for prepaid rents, security deposits and claims
accruing during Landlord's ownership; further provided that the provisions of a
mortgage, deed of trust or other lien relative to the rights of the mortgagee
with respect to proceeds arising from an eminent domain taking (including a
voluntary conveyance by ▇▇▇▇▇▇▇▇) and provisions relative to proceeds arising
from insurance payable by reason of damage to or destruction of the Demised
Premises will be prior and superior to any contrary provisions contained in this
instrument with respect to the payment or usage thereof. 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 upon the Demised
Premises, and ▇▇▇▇▇▇ agrees upon demand to execute such further instruments
subordinating this Lease as Landlord may request; provided, however, that upon
▇▇▇▇▇▇'s written request and notice to Landlord, Landlord must use good faith
efforts to obtain from any such mortgagee a written agreement that after a
foreclosure (or a deed in lieu of foreclosure) the rights of Tenant will remain
in full force and effect during the term of this Lease so long as Tenant
recognizes and performs all of the covenants and conditions of this
Lease.
20.2 At
any time when the holder of an outstanding mortgage, deed of trust or other lien
covering Landlord's interest in the Demised Premises has given Tenant written
notice of its interest in this Lease, Tenant may not exercise any remedies for
default by Landlord hereunder unless and until the holder of the indebtedness
secured by such mortgage, deed of trust or other lien has received written
notice of such default and a reasonable time (not less than 30 days) has
thereafter elapsed without the default having been cured.
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20.3 Tenant agrees that it
will from time-to-time upon request by Landlord execute and deliver to Landlord a
written statement addressed to Landlord (or to a party designated by
Landlord),
which statement must identify Tenant and this Lease, must certify that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as so modified), must
confirm that Landlord is not in default as to any obligations of Landlord under
this Lease (or if Landlord is in default, specifying any default), must confirm
Tenant's agreements contained above in this Article 20, and must contain such
other information or confirmations as Landlord may reasonably require. ▇▇▇▇▇▇▇▇
is hereby irrevocably appointed and authorized as the agent and attorney-in-fact
of Tenant to execute and deliver any such written statement on ▇▇▇▇▇▇'s behalf
if ▇▇▇▇▇▇ fails to do so within seven (7) days after the delivery of a written
request from Landlord to Tenant.
ARTICLE
21
[INTENTIONALLY
OMITTED.)
ARTICLE
22
DEFAULT
BY TENANT AND REMEDIES
22.1 The
following events will be deemed to be events of default by Tenant under this
Lease:
(a) Tenant
fails to pay any installment of rent or any other obligation under this
Lease
involving the payment of money and such failure continues for a period of ten
(10) days after written notice thereof to Tenant; provided, however, that for
any twelve (12) month period during which Landlord has already given Tenant one
written notice of the failure to pay an installment of rent, no further notice
will be required (i.e., the event of default will automatically occur on the
tenth day after the date upon which the rent was due).
(b) Tenant
fails to comply with any provision of this Lease, other than as described
in Subsection (a),
above, and either does not cure such failure within fifteen (15) days after
written notice thereof to Tenant, or cures that particular failure but again
fails to comply with the same provision of the Lease within three months after
Landlord's written notice.
(c) Tenant
or any guarantor of Tenant's obligations under this Lease becomes insolvent,
or makes a transfer in fraud of creditors, or makes an assignment for the
benefit of creditors.
(d) Tenant
or any guarantor of Tenant's obligations under this Lease files a petition
under any
section or chapter of the federal Bankruptcy Code, as amended, or under any
similar law or statute of the United States or any state thereof; or Tenant or
any guarantor of Tenant's obligations under this Lease is adjudged bankrupt or
insolvent in proceedings filed against Tenant or any guarantor of Tenant's
obligations under this Lease thereunder.
(e) A
receiver or Trustee is appointed for the Demised Premises or for all or
substantially
all of the assets of Tenant or any guarantor of Tenant's obligation under this
Lease.
(f) Tenant
deserts or vacates or commences to desert or vacate the Demised Premises
or any substantial portion of the Demised Premises or at any time prior to the
last month of the lease term removes or attempts to remove, without the prior
written consent of Landlord, all or a substantial amount of Tenant's goods,
wares, equipment, fixtures, furniture, or other personal property.
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(g) Tenant
does or permits to be done anything which creates a lien upon the all or
any part
of the Demised Premises.
(h) Tenant
makes an anticipatory breach of this Lease. The term "anticipatory
breach" means either
(1 ) Tenant's repudiation
of this Lease in writing, or (2) the combination of (i) Tenant's desertion or
vacation or commencement of desertion or vacation of the Demised Premises or
removal of all or a substantial amount of Tenant's equipment, fixtures,
furniture, or other personal property from the Demised Premises, and (ii)
Tenant's failure to pay any Base Rent or other amounts due under this Lease as
and when they are due and payable.
22.2 Upon
the occurrence of any such events of default, Landlord has the option to pursue
any one or more of the following remedies:
(a)
Without any further notice or demand whatsoever, Landlord may enter upon and
take
possession of the Demised Premises and expel or remove Tenant and any other
person who may be occupying the Demised Premises or any part of the Demised
Premises, by force, if necessary (except to the extent prohibited by Texas law),
without being liable for prosecution or any claim for damages for such action.
Such expulsion and removal by ▇▇▇▇▇▇▇▇ cannot be deemed a termination or
forfeiture of this Lease or acceptance of ▇▇▇▇▇▇'s surrender of the Demised
Premises unless Landlord expressly notifies Tenant in writing that Landlord is
terminating or forfeiting this Lease or accepting ▇▇▇▇▇▇'s surrender of the
Demised Premises. If Landlord expels or removes Tenant and any other person from
the Demised Premises without terminating or forfeiting this Lease or accepting
surrender of the Demised Premises, Landlord must attempt to mitigate its
damages. In any situation in which Landlord is attempting to mitigate its
damages, Landlord will conclusively be deemed to have done so if Landlord lists
the Demised Premises with a real estate broker or agent (which may be affiliated
with Landlord) and considers all written proposals for such space made by such
broker or agent; provided, however, that in no event will Landlord (i) be
obligated to travel outside a radius of thirty (30) miles from its principal
office in order to meet with a prospective tenant, (ii) be obligated to expend
monies for finish-out requested by a prospective tenant unless Landlord, in its
sole discretion, believes that the excess rent Landlord will receive and the
credit of the prospective tenant support such a decision, (iii) be obligated to
accept any lease proposal whose terms are less advantageous than then-current
market terms, or (iv) be required to accept any lease proposal which it, in its
sole discretion, deems unacceptable. In attempting to relet or actually
reletting the Demised Premises, Landlord will be free to enter into a direct
lease with the proposed replacement tenant and will not be acting as ▇▇▇▇▇▇'s
agent, although the proceeds Landlord actually receives for any time period will
be credited against ▇▇▇▇▇▇'s obligations for the same time period. Tenant will
not be entitled to any additional credit (for example, if Landlord receives
amounts during a particular time period in excess of Tenant's obligations for
the same time period, Landlord will not be required to credit such excess
against Tenant's obligations for any other time period). Until Landlord is able,
through such efforts, to relet the Demised Premises, Tenant must pay to
Landlord, on or before the first day of each calendar month, in advance, the
monthly rents and other, charges provided in this Lease. Beginning as of the
time, if any, as Landlord relets the Demised Premises; Tenant thereafter shall
pay to Landlord on the 20th day of each calendar month the difference between
the monthly rents and other charges provided in this Lease for such calendar month and the
amount actually collected by Landlord for such month from the occupant to whom
Landlord has re-let the Demised Premises. If it is necessary for Landlord
to bring suit
in order to collect any deficiency, Landlord has the right to allow such
deficiencies to accumulate and to bring an action on several or all of the
accrued deficiencies at one time. Any such suit cannot
prejudice in any way the right of Landlord to bring a similar action for
any
subsequent deficiency or deficiencies.
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(b) Without
any further notice or demand whatsoever, Landlord may terminate this
Lease by
written notice to Tenant, in which event Tenant must immediately surrender the
Demised Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which Landlord may have for possession or
arrearages in rent (including any late charge or interest which may have accrued
pursuant to Section
4.3 of this Lease), enter upon and take possession of the Demised
Premises and expel or remove ▇▇▇▇▇▇ and any other person who may be occupying
the Demised Premises or any part thereof, by force, if necessary (except to the
extent prohibited by Texas law), without being liable for prosecution or any
claim for damages therefor. If the event of default pursuant to which Landlord
terminated this Lease was a default under Section 22.2(a) or
Section 22.1(h)
above, then to the fullest extent permitted by applicable law, Tenant hereby
agrees to pay the difference between the total of all monthly rents and other
charges provided in this Lease for the remainder of the term and the reasonable
rent value of the Demised Premises for such period, such difference to be
discounted to then-present value at a rate equal to four (4%) percent per
annum.
(c) Without
any further notice or demand whatsoever, Landlord may pursue the following
remedies for the following specific defaults:
(i) In
the event of any default described in Subsection 22.1 (b)
of this Lease, Landlord has the right to enter upon the Demised Premises, by
force, if necessary (except to the extent prohibited by Texas law), without
being liable for prosecution or any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease; and ▇▇▇▇▇▇ agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease, and ▇▇▇▇▇▇
further agrees that Landlord will not be liable for any damages resulting to the
Tenant from such action.
(ii) In
the event of any default described in Subsection 22.1 (q)
of this Lease, Landlord may pay or bond around such lien, whether or not
contested by ▇▇▇▇▇▇; and in such event ▇▇▇▇▇▇ agrees to reimburse Landlord on
demand for all costs and expenses incurred in connection with any such action,
with ▇▇▇▇▇▇ further agreeing that Landlord is in no event liable for any damages
or claims resulting from such action.
If
Landlord elects to exercise the remedy prescribed in Subsection 22,2(a) or
22.2(c) above, this election in no way prejudices Landlord's right at any
time thereafter to cancel such election in favor of the remedy prescribed in
Subsection
22.2(b) above, provided that at the time of such cancellation Tenant is
still in default. Pursuit of any of the above remedies does not preclude pursuit
of any other remedies prescribed in other sections of this Lease and any other
remedies provided by law or in equity. Forbearance by Landlord to enforce one or
more of the remedies herein provided upon an event of default cannot be deemed
or construed to constitute a waiver of such default. No agreement to accept a
surrender of the Demised Premises and no act or omission by Landlord or
Landlord's agent during the term of this Lease will constitute an acceptance of
surrender of the Demised Premises unless made in writing and signed by ▇▇▇▇▇▇▇▇.
Similarly, no reentry or taking of possession of the Demised Premises by
Landlord will constitute an election by Landlord to terminate this Lease unless
a written notice of such intention, signed by ▇▇▇▇▇▇▇▇, is given to
Tenant.
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22.3 It is expressly agreed that in
determining "the monthly rents and other charges provided in this Lease," as that term is used
throughout Subsection
22.2 above, there will be
added to the Base Rent (as
specified in Section
1.1(k) of this Lease) a
sum equal to the charges for maintenance and operation of the
Demised Premises (as specified in Articles
10 and 14 of this
Lease) and the payments
for real estate charges and insurance expenses (as specified in Article 6 of this Lease). It is
further understood and agreed that the phrase "without any further notice or demand whatsoever," as that
term is used throughout Section
22.2 above, incorporates Tenant's full, final, and
complete waiver of all demands and notices permitted or required by applicable law, whether
statutory or common law, and in equity (including, without limitation, any statutory requirement
of prior written notice for filing eviction or damage suits for nonpayment of rent), it being
understood and agreed that if any notice is appropriate, it is provided for in Section
22.1.
22.4 It
is further agreed that, in addition to payments required pursuant to Section
22.2 above, Tenant must compensate Landlord for all expenses incurred by
Landlord in repossession (including, among other expenses, any increase in
insurance premiums caused by the vacancy of the Demised Premises), all expenses
incurred by Landlord in reletting (including, among other expenses, repairs,
remodeling, replacements, advertisements and brokerage fees), all concessions
granted to a new tenant upon reletting (including, among other concessions,
renewal options), all losses incurred by Landlord as a direct or indirect result
of Tenant's default (including, among other losses, any adverse reaction by
▇▇▇▇▇▇▇▇'s mortgagee) and a reasonable allowance for ▇▇▇▇▇▇▇▇'s administrative
efforts, salaries and overhead attributable directly or indirectly to Tenant's
default and ▇▇▇▇▇▇▇▇'s pursuing the rights and remedies provided herein and
under applicable law.
22.5
Landlord may restrain or enjoin any breach or threatened breach of any covenant,
duty or obligation of Tenant herein contained without the necessity of proving
the inadequacy of any legal remedy or irreparable harm. The remedies of Landlord
hereunder are deemed cumulative and not exclusive of each other.
22.6 If
on account of any breach or default by ▇▇▇▇▇▇ in its obligations hereunder,
Landlord employs an attorney to present, enforce or defend any of Landlord's
rights or remedies hereunder, ▇▇▇▇▇▇ agrees to pay any reasonable attorney's
fees incurred by Landlord in such connection.
22.7 In
the event that Tenant fails to pay any rent or other amounts due under this
Lease, or in the event any one or more provisions of this Article
22 authorizes Landlord to enter the Demised Premises, Landlord is
entitled and is hereby authorized, without any notice to Tenant, to enter upon
the Demised Premises by use of a duplicate key, a master key, a locksmith's
entry procedures or any other means not involving personal confrontation, and to
alter or change the door locks on all entry doors of the Demised Premises,
thereby permanently
excluding Tenant. In such event Landlord will not be obligated to place any
written notice on the Demised Premises explaining Landlord's action; moreover,
if a reason for Landlord's action is the failure of Tenant
to pay any one or more rents when due pursuant to this Lease, Landlord will not be
required to provide the new key (if any) to Tenant until and unless all rent
defaults of
Tenant have been fully cured.
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22.8
[INTENTIONALLY OMITTED.]
22.9 In
the event of any default described in Subsection
(d) of Section 22.1 of this Lease, any assumption and assignment must
conform with the requirements of the Bankruptcy Code which provides, in part,
that the Landlord must be provided with adequate assurance (1) of the source of
rent and other consideration due under this Lease; (ii) that the financial
condition and operating performance of any proposed assignee and its guarantors,
if any, is similar to the financial condition and operating performance of
Tenant and its guarantors, if any, as of the date of execution of this Lease;
and (iii) that any assumption or assignment is subject to all of the provisions
of this Lease (including, but not limited to, restrictions as to use) and will
not breach any such provision contained in any other Lease, financing agreement
or other agreement relating to the Demised Premises.
(a) In
order to provide Landlord with the assurance contemplated by the Bankruptcy
Code,
Tenant must fulfill the following obligations, in addition to any other
reasonable obligations that Landlord may require, before any assumption of this
Lease is effective: (i) all defaults under Subsection
(a) of Section 22.1 of this Lease must be cured within ten (10) days
after the date of assumption; (ii) all other defaults under Section
22.1 of this Lease other than under Subsection
(d) of Section22.1 must be cured within fifteen (15) days after the date
of assumption; (iii) all actual monetary losses incurred by Landlord (including,
but not limited to, reasonable attorneys fees) must be paid to Landlord within
ten (10) days after the date of assumption; and (iv) Landlord must receive
within ten (10)
days after the date of assumption a security deposit in the amount of six
(6) months Base Rent (using the Base Rent in effect for the first full month
immediately following the assumption) and an advance prepayment of Base Rent in
the amount of three (3) months Base Rent (using the Base Rent in effect for the
first full month immediately following the assumption), both sums to be held by
Landlord in accordance and deemed to be rent under this Lease for the purposes
of the Bankruptcy Code as amended and from time-to-time in effect.
(b) In
the event this Lease is assumed in accordance with the requirements of the
Bankruptcy
Code and this Lease, and is subsequently assigned, then, in addition to any
other reasonable obligations that Landlord may require and in order to provide
Landlord with the assurances contemplated by the Bankruptcy Code, Landlord must
be provided with (i) a financial statement of the proposed assignee prepared in
accordance with generally accepted accounting principles consistently applied,
though on a cash basis, which reveals a net worth in an amount sufficient, in
Landlord's reasonable judgment, to assure the future performance by the proposed
assignee of Tenant's obligations under this Lease; or (ii) a written guaranty by
one or more guarantors with financial ability sufficient to assure the future
performance of Tenant's obligations under this Lease, such guaranty to be in
form and content satisfactory to Landlord and to cover the performance of all of
Tenant's obligations under this Lease.
THE. ▇▇▇▇▇▇▇ LAW
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ARTICLE
23
LANDLORD'S
CONTRACTUAL SECURITY INTEREST
23.1 In
addition to the statutory Landlord's lien, Landlord has at all times a valid
security interest to secure payment of all rents and other sums of money
becoming due hereunder from Tenant, and to secure payment of any damages or loss
which Landlord may suffer by reason of the breach by Tenant of any covenant,
agreement or condition contained herein, upon all goods, wares, equipment,
fixtures, furniture, improvements and other personal property of Tenant
presently, or which may hereafter be, situated on the Demised Premises, and all
proceeds therefrom, and such property must not be removed without the consent of
Landlord until all arrearages in rent as well as any and all other sums of money
then due to Landlord or to become due to Landlord hereunder first have been paid
and discharged and all the covenants, agreements and conditions hereof have been
fully complied with and performed by ▇▇▇▇▇▇. Upon the occurrence of an event of
default by Tenant, Landlord may, in addition to any other remedies provided
herein, enter upon the Demised Premises and take possession of any and all
goods, wares, equipment, fixtures, furniture, improvements and other personal
property of Tenant situated on the Demised Premises, without liability for
trespass or conversion, and sell the same at public or private sale, with or
without having such property at the sale, after giving Tenant reasonable notice
of the time and place of any public sale or of the time after which any private
sale is to be made, at which sale the Landlord or its assigns may purchase
unless otherwise prohibited by law. Unless otherwise provided by law, and
without intending to exclude any other manner of giving Tenant reasonable
notice, the requirement of reasonable notice will be met if such notice is given
in the manner prescribed in this Lease at least five days before the time of
sale, Any sale made pursuant to the provisions of this paragraph will be deemed
to have been a public sale conducted in a commercially reasonable manner if held
in the above-described Demised Premises or where the property is located after
the time, place and method of sale and a general description of the types of
property to be sold have been advertised in a daily newspaper published in the
county in which the property is located, for five consecutive days before the
date of the sale. The proceeds from any such disposition, less any and all
expenses connected with the taking of possession, holding and selling of the
property (including reasonable attorney's fees and legal expenses), will be
applied as a credit against the indebtedness secured by the security interest
granted in this paragraph. Any surplus will be paid to Tenant or as otherwise
required by law; the Tenant must pay any deficiencies forthwith. Tenant hereby
agrees that a carbon, photographic or other reproduction of this Lease is
sufficient to constitute a financing statement. ▇▇▇▇▇▇ nevertheless agrees that
upon request by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ will execute and deliver to Landlord a
financing statement in form sufficient to perfect the security interest of
Landlord in the aforementioned property and proceeds thereof under the provision
of the Uniform Commercial Code (or corresponding state statute or statutes) in
force in the state in which the property is located, as well as any other state
the laws of which Landlord may at anytime consider to be applicable; moreover,
Landlord is hereby irrevocably vested with a power of attorney from Tenant to
execute any and all such financing statements on behalf of ▇▇▇▇▇▇.
23.2
Notwithstanding Section
23.1, Landlord agrees that it will subordinate its security interest and
landlord's lien to the security interest of ▇▇▇▇▇▇'s supplier or institutional
financial source for as long as the rent account of Tenant under this Lease is
current (or is brought current), provided that Landlord approves the transaction
as being reasonably necessary for ▇▇▇▇▇▇'s operations at the Demised Premises,
and further provided that the subordination must be limited to a specified
transaction and specified items of the fixtures, equipment or inventory involved
in the transaction.
THE.
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ARTICLE
24
HOLDING
OVER; SURRENDER OF PREMISES
24.1 In
the event Tenant remains in possession of the Demised Premises after the
expiration of this Lease and without the execution of a new Lease, it will be
deemed to be occupying the Demised Premises as a tenant at sufferance at a daily
rent equal to the rent herein provided plus fifty percent of such amount,
pro-rated on a daily basis, otherwise subject to all the conditions, provisions
and obligations of this Lease insofar as the same are applicable to a tenancy at
sufferance.
24.2 At
the end of the term or the termination of Tenant's right to possess the Demised
Premises, Tenant must (a) deliver to Landlord the Demised Premises with all
improvements located thereon in good repair and condition, reasonable wear and
tear (subject however to Tenant's maintenance obligations) excepted, (b) deliver
to Landlord all keys to the Demised Premises, and (c) remove all signage placed
on the Demised Premises. All fixtures, alterations, additions, and improvements
(whether temporary or permanent) are Landlord's property and must remain on the
Demised Premises except as provided in the next two sentences. Provided that
▇▇▇▇▇▇ has performed all of its obligations hereunder, Tenant may remove all
unattached trade fixtures, furniture, and personal property placed in the
Demised Premises by Tenant (but Tenant cannot remove any such item which was
paid for, in whole or in part, by Landlord). Additionally, Tenant must remove
such alterations, additions, improvements, fixtures, equipment, wiring,
furniture, and other property as Landlord may request, provided such request is
made within six months after the end of the term. All items not so removed will,
at the option of Landlord, be deemed abandoned by Tenant and may be
appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord
without notice to Tenant and without any obligation to account for such items,
and Tenant must pay for the costs incurred by Landlord in connection therewith.
Any such disposition cannot be considered a strict foreclosure or other exercise
of Landlord's rights in respect of the security interest granted under Section
23. All work required of Tenant under this Section
24.2 must be coordinated with Landlord and be done in a good and
workmanlike manner, in accordance with all laws, and so as not to damage the
Demised Premises. Tenant must, at its expense, promptly repair all damage caused
by any work performed by Tenant under this Section
24.2.
ARTICLE
25
NOTICES
25.1
Wherever any notice is required or permitted under this Lease, such notice must
be in writing. Any notice or document required or permitted to be delivered
under this Lease will be deemed to be delivered when actually received by the
designated addressee or, if earlier and regardless of whether actually received
or not, when deposited in the United States mail, postage prepaid, certified
mail, return receipt requested, or when sent by messenger or private overnight
courier (but not facsimile), addressed to the applicable party at such party's
address as set forth in Section
1.1 above, or such other address as such party has previously specified
by written notice. All notices to either party due under this Lease shall
include a copy to:
THE.
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
The
▇▇▇▇▇▇▇ Law Firm LLP
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Houston,
TX 77056-5604
ARTICLE
26
AMERICANS
WITH DISABILITIES ACT
26.1
Tenant represents that the Demised Premises will be constructed in accordance
with the requirements of the Americans With Disabilities Act of 1990, as amended
from time-to-time, and related state and municipal laws and regulations
(collectively, the "ADA" ). If there are any changes to the ADA which require
changes to the Demised Premises, Tenant will improve the Demised Premises in
order to comply with the ADA at Tenant's sole cost and expense.
26.2
Tenant is responsible for compliance with the ADA in all matters regarding both
the configuration of the Demised Premises (the interior as well as all public
and/or employee door entrances) and Tenant's business operations at the Demised
Premises.
ARTICLE
27
REGULATIONS
27.1
Landlord and Tenant acknowledge that there are in effect federal, state, county
and municipal laws, orders, rules, directives and regulations (collectively
referred to hereinafter as the "Regulations")
and that additional Regulations may hereafter be enacted or go into effect,
relating to or affecting the Demised Premises, and concerning the impact on the
environment of construction, land use, maintenance and operation of structures,
toxic or otherwise hazardous substances, and conduct of business. Subject to the
express rights granted to Tenant under the terms of this Lease, Tenant will not
cause, or permit to be caused, any act or practice, by negligence, omission or
otherwise, that would adversely affect the environment, ment, or do anything or
permit anything to be done that would violate any of the Regulations. Moreover,
▇▇▇▇▇▇ has no claim against Landlord by reason of any changes Landlord may make
in the Demised Premises pursuant to the Regulations or any charges imposed upon
Tenant, ▇▇▇▇▇▇'s customers or other invitees pursuant to same.
ARTICLE
28
MISCELLANEOUS
28.1
Nothing in this Lease can be deemed or construed by the parties hereto, nor by
any third party, as creating the relationship of principal and agent or of
partnership or of joint venture between the parties hereto, it being understood
and agreed that neither the method of computation of rent, nor any other
provision contained herein, nor any acts of the parties hereto, will be deemed
to create any relationship between the parties hereto other than the
relationship of landlord and tenant.
THE.
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28,2
Tenant must not for any reason withhold or reduce Tenant's required payments of
rents and other chargess provided in this Lease, it being agreed that the
obligations of Landlord under this Lease are independent of Tenant's obligations
except as maybe otherwise expressly provided. The immediately preceding sentence
cannot be deemed to deny Tenant the ability of pursuing all rights granted it
under this Lease or at law; however, as contemplated in Rule 174(b) of the Texas
Rules of Civil Procedure (as such may be amended from time-to-time), at the
direction of Landlord, ▇▇▇▇▇▇'s claims in this regard will be litigated in
proceedings different from any litigation involving rent claims or other claims
by Landlord against Tenant (i.e., each party may proceed to a separate judgment
without consideration, counterclaim or offset as to the claims asserted by the
other party).
28,3 The
liability of Landlord to Tenant for any default by Landlord under the terms of
this Lease will be limited to the proceeds of sale on execution of the interest
of Landlord in the Demised Premises; and Landlord will not be personally liable
for any deficiency, except that Landlord will, subject to the provisions of
Section
19.6 hereof, remain personally liable to account to Tenant for any
security deposit under this Lease. This clause cannot be deemed to limit or deny
any remedies which Tenant may have in the event of default by Landlord hereunder
which do not involve the personal liability of Landlord.
28.4 In
all circumstances under this Lease where the prior consent of one party (the
"consenting
party"), whether it be Landlord or Tenant, is required before the other
party (the "requesting
party") is authorized to take any particular type of action, such party
must not withhold such consent in a wholly unreasonable and arbitrary manner;
however, the requesting party agrees that its exclusive remedy if it believes
that consent has been withheld improperly (including, but not limited to,
consent required from Landlord pursuant to Section
9.2 or Section
19.1) is to institute litigation either for a declaratory judgment or for
a mandatory injunction requiring that such consent be given (with the requesting
party hereby waiving any claim for damages, attorneys fees or any other remedy
unless the consenting party refuses to comply with a court order or judgment
requiring it to grant its consent).
28.5 One
or more waivers of any covenant, term or condition of this Lease by either party
cannot be construed as a waiver of a subsequent breach of the same covenant,
term or condition. The consent or approval by either party to or of any act by
the other party requiring such consent or approval cannot be deemed to waive or
render unnecessary consent to or approval of any subsequent similar
act.
28.6
Whenever a period of time is herein prescribed for action to be taken by
Landlord, Landlord will not be liable, or responsible for, and there will be
excluded from the computation of any 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 causes of any kind whatsoever
which are beyond the reasonable control of Landlord.
28.7 If
any provision of this Lease is held to be invalid or unenforceable, the validity
and enforceability of the remaining provisions of this Lease will not be
affected thereby.
28.8 The
laws of the State of Texas govern the interpretation, validity, performance and
enforcement
of this Lease. Venue for any action under this Lease is in ▇▇▇▇▇▇ County,
Texas.
28.9 The
captions used herein are for convenience only and do not limit or amplify the
provisions hereof.
THE. ▇▇▇▇▇▇▇ LAW FIRM LLP q HOUSTON, TX
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28.10
Whenever herein the singular number is used, the same includes the plural, and
words of any gender include each other gender.
28.11 The
terms, provisions and covenants contained in this Lease apply to, inure to the
benefit of and bind the parties hereto and their respective heirs, successors in
interest and legal representatives except as otherwise herein expressly
provided.
28.12
This Lease contains the entire agreement between the parties, and no rights are
created in favor of either party other than as specified or expressly
contemplated in this Lease. No brochure, rendering information or correspondence
will be deemed to be a part of this agreement unless specifically incorporated
herein by reference. In addition, no agreement will be effective to change,
modify or terminate this Lease in whole or in part unless such is in writing and
duly signed by the party against whom enforcement of such change, modification
or termination is sought.
28.13
LANDLORD AND TENANT HEREBY ACKNOWLEDGE THAT THEY ARE NOT RELYING UPON ANY
BROCHURE, RENDERING, INFORMATION, REPRESENTATION OR PROMISE OF THE OTHER, OR OF
ANE AGENT OR, EXCEPT AS MAY BE EXPRESSLY SET FORTH [PLACE AN "'X" OR OTHER MARK
DESIGNATING A CHOICE IN THE APPROPRIATE BOX]:
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IN
THIS LEASE.
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x
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IN
________________________________________________________ AS WELL AS IN
THIS LEASE.
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NOTE:
IF NO "X" (OR OTHER MARK DESIGNATING A CHOICE) IS PLACED IN EITHER
BOX
IN
THIS SECTION 28.13, THEN THE FIRST BOX WILL BE DEEMED TO HAVE BEEN
MARKED.
28.14
Tenant and Landlord represent and warrant to each other that neither has had any
contacts or engaged in any actions which would give rise to any claim from any
broker in connection with the negotiation or execution of this Lease. Tenant and
Landlord hereby indemnify each other from and against any and all claims for
brokers' commissions relating to the negotiation or execution of this Lease and
alleged to be due because of an agreement of the indemnifying
party.
28.15
This Lease consists of twenty-eight (28) articles and Exhibits "A" and "B" . In
the event any provision of an exhibit or other attached page is inconsistent
with a provision in the body of the Lease, the provision as set forth herein
control.
28.16 The
signatories below recognize that the Tenant is in the process of being formed
and that any and all obligations under this Lease shall only come into force and
effect upon the formation of the Tenant, who shall give written notice of its
formation to Landlord.
EXECUTED
effective as of the _____ day of September 2006.
THE.
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TX
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LANDLORD:
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TENANT:
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First Street Hospital, LP.,
a Texas limited
partnership
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14
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By:
First Surgical Partners, L.L.C., its
general
partner
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▇▇▇▇▇▇
Varon7CIIMPOr
the benefit of
First
Street Hol mg Ltd.
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By:
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Name:
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rePAIX-ro-.090
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Title:
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Tun. ▇▇▇▇▇▇▇ LAW FIRM LLP q HOUSTON, TX
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LIST
OF EXHIBITS
Exhibit A
- Legal Description of the Demised Premises
Exhibit B
- Plans for the Improvements
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TX
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Exhibit
B
THE,
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TX
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Exhibit
B
THE.
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