UNIVERSITY HILL PLAZA LEASE AGREEMENT
TABLE OF CONTENTS
ARTICLE PAGE
1 EXHIBITS 1
2 LEASED PREMISES AND QUIET ENJOYMENT 1
3 EFFECTIVE DAY, TERM AND CONSTRUCTION WORK 1
4 RENEWAL OPTION 2
5 BASIC OPTION 2
6 LATE CHARGES 3
7 CONDUCT OF BUSINESS OF TENANT 3
8 PARKING, COMMON AREA AND CHARGE 4
9 MAINTENANCE OF LEASE PREMISES 6
10 SIGNS, AWNINGS, CANOPIES, FIXTURES ALTERATIONS,
ROOF AND WALLS 6
11 REAL ESTATE TAX 7
12 PERSONAL PROPERTY TAXES 7
13 UTILITIES 7
14 INSURANCE 7
15 RIGHT OF ENTRY 8
16 INDEMNIFICATION 8
17 SUBORDINATION 8
18 DAMAGE AND DESTRUCTION 8
19 EMINENT DOMAIN 8
20 ASSIGNMENT AND SUBLETTING
21 LANDLORD'S PERFORMANCE FOR ACCOUNT OF TENANT 9
22 DEFAULT BY TENANT 10
23 DEFAULT BY LANDLORD 11
25 APPLICATION OF PAYMENTS RECEIVED FROM TENANT 11
26 ENVIRONMENTAL ISSUES 11
27 NOTICES
28 SALES OF PREMISES BY LANDLORD 11
29 ATTORNEY'S FEES 11
30 TITLE OF SHOPPING CENTER 11
31 WAIVER 11
32 SHORT FORM OR LEASE RECORDING 12
33 SECURITY DEPOSIT 12
34 HOLDING OVER AND SUCCESSORS 12
35 BROKERS OR FINDERS 12
36 MISCELLANEOUS 12
37 SIGNATURE PAGE 14
38 EXHIBIT E 15
39 EXHIBIT D 16
40 EXHIBIT C 17
41 EXHIBIT B 18
42 EXHIBIT A (TO BE ATTACHED)
SHOPPING CENTER LEASE
This Lease, made this 14th day of May, 1998, by and between University Hill
Plaza (hereinafter called Landlord), and All Star Systems Rio Grande Inc., a
Texas corporation (hereinafter called Tenant) cover space in the University Hill
Plaza Shopping Center, located at 3800 N. Mesa, El Paso, Texas (herein after
called Shopping Center).
WITNESSETH THAT, in consideration of the rents, covenants and
agreements herein set forth, such parties enter into the following agreement:
1. EXHIBIT: The exhibits listed below and attached to this Lease are
incorporated herein by reference.
A. Exhibit "A" Plot and Floor Plan of the space demised hereunder to
Tenant (the "Premise"), which include the legal description of the Shopping
Center Tract (the "Total Tract")
B. Exhibit "B" Landlord's Sign Criteria.
C. Exhibit "C" Rules and Regulations applicable to Tenant.
D. Exhibit "D" Construction Addendum.
E. Exhibit "E" Guarantee.
2. LEASED PREMISES AND QUIET ENJOYMENT:
A. Leased premised: Landlord hereby leases to Tenant, and Tenant hereby
rents form Landlord, the space in the Shopping Center Designated as B-1,
outlined in red on Exhibit "A" (hereinafter called "the Premises"), with a front
width of approximately 144 feet and a depth of approximately 70 Feet 6 Inches
feet measured to the center line of all party or common walls, to the exterior
face of all other walls, and to the building line where there is no wall,
containing approximately 10,080 square feet.
B. Quiet Enjoyment: So long as Tenant is not in default hereunder,
Tenant shall have peaceful, quiet use and possession of the Premises throughout
the term hereof, subject to all matters of record and to any mortgage, deed of
trust or other agreement to which this Lease is or may hereafter be
subordinated.
3. EFFECTIVE DATE, TERM AND CONSTRUCTION WORK:
A. Effective Date: The "Effective Date" of this Lease is the day and
year first above written i.e., notwithstanding the fact that the Commencement
Date of the Term of this Lease may be a date subsequent to the Effective Date of
this Lease, Landlord and Tenant intend that both shall have vested rights
immediately upon the execution of this Lease, subject, however, to the terms
hereof, and that this Lease shall be binding and in full force and effect upon
such execution.
B. Term: The Term of this Lease shall be for a period of TEN (10)
years, commencing on the date that the construction set forth in Exhibit "D"
Construction Addendum is complete and the Premises is made available for
occupancy by the Tenant (the "Commencement Date") and ending on ten (10) years
after the date set forth in Exhibit 'D' Construction Addendum.
C. Construction Work:
(1) Landlord's Work: Landlord shall construct, at its expense, the
improvements in accordance with the Construction Addendum attached hereto as
Exhibit "D" and Landlord's Plans and Specifications, as from time to time
amended.
(2) Tenant's Work: Tenant agrees, prior to the Commencement Date, at
Tenant's sole cost and expense, to construct the premises in accordance with the
requirements of Drawings and Specifications with respect to the work Tenant
intends to perform in the Premises.
4. RENEWAL OPTION: That providing Tenant has not defaulted in respect to any
provision of this Lease, Tenant shall have the right to extend the term of this
lease for an additional period of Five (5) years from the expiration of the term
above stated, provided however that written notice is given to the Landlord of
such intenetion to extend the Lease six (6) months prior to the expiration date
above stated, and further provided that all provisions of this Lease shall
continue in full force and effect for the period of such extension. Minimum
guaranteed rental for said additional term of years shall increase no less than
30% more than the Minimum Monthly Rental set forth in Section 5A hereof, as
adjusted pursuant to Section 5A (I) and (ii) hereof during the previous Lease
Year.
5. BASIC RENTAL:
A. Minimum Monthly Rental :
(I) Tenant shall pay to the Landlord as Minimum Monthly Rental for the
Premises the sum of Eight Thousand Four Hundred Dollars ($8,400.00 ), per
month, which sum shall be subject to possible upward adjustment as provided
in Paragraph 5A (ii) below. Said Minimum Monthly Rental shall be paid in
advance on the first day of each month of the term, with proration to occur
for any partial month, if the Commencement Date is other than on the first
day of the calendar month. All rentals to be paid by the Tenant to Landlord
shall be in lawful money of the United States of America and shall be paid
without deduction or offset, prior notice or demand, on or before the first
(1st) day of each and every month during the term hereof, and at such place
or places as may be designated from time to time by Landlord.
(ii) At the end of the Third (3rd) Lease Year and every Lease Year
thereafter, the Minimum Monthly Rental as provided in Paragraph 5A(i)
above, shall be adjusted to reflect any increase in the Cost of Living
during the Lease Year Period just ended based upon the "Consumer Price
Index" for El Paso, Texas area - All items (hereinafter referred to as the
"index), published by the Bureau of Labor Statistices of the United States
Department of Labor. The Index Number of the first (1st) month of the third
(3rd) Lease Year shall be the "Base Index Number" and the corresponding
Index Number for the last month of the Lease Year just ended shall be the
"Current Index Number." The Base Index Number shall be subtraced from the
Current Index Number, and the result obtained shall be converted to a
percentage of the Base Index Number. The Minimum Monthly Rental as provided
in Paragraphs 5A(i) above shall then be increased by such percentage and
the result so obtained shall be the new Minimum Monthly Rental for the
Premises effective as of the first day of the new period. In no event,
however, shall the Minimum Monthly Rental during the new period be less
than the Minimum Monthly Rental during the immediatly preceding period.
Tenants shall continue payment of the Minimum Monthly Rental rate in effect
for the expiring period until notified by Landlord of any increase in such
Minimum Monthly Rental. Such notification shall include a memorandum
showing the calculation used by Landlord in determining the new Minimum
Monthly Rental. On the first day of the calendar month immediatley
succeeding receipt of such notice, Tenant shall commence payment of the new
Minimum Monthly Rental specified in the notice, and shall also pay to
Landlord, with respect to the month(s) already expired, the excess of the
required monthly rental as specified in the notice over the monthly amounts
actually paid by Tenant.
If publication of the index shall be discontinued or unavailable, a
comparable index published by any branch or department of the United States
Government shall be substitited, and such adjustments in the method of
computation shall be made as may be necessary to carry out the intent of this
cost-of-living provision.
The term "Lease Year" as used in this Lease shall mean a period during
the lease term commencing on Jamuary 1 of each year and ending at midnight on
December 31 next succeeding, except that the first Lease Year shall be the
period Commencing on the Commencement Date and ending as midnight on December 31
next succeeding, and the last Lease Year shall end at the end of the lease term.
C. Additional Rent: Tenant shall pay Landlord annually, as additional
rental, in accordance with Paragraphs 5. "Tenant's Share" of the Operating
Expenses as defined in paragraph 8C, real estate taxes, utilities, insurance
premiums and utilities as provided in Paragraphs 11, 13 and 14 respectively.
6. LATE CHARGES: Tenants agrees to pay a late charge of 5% of each payment due
hereunder that is not paid on or before ten (10) days of the due date and the
failure to pay such late charge shall cause this Lease to be canceled and
terminated at the option of Landlord by written notice to Tenant or pursue any
and all other remedies available hereunder to Landlord. Any rental and/or other
payments due hereunder returned to Landlord marked "Insufficient Funds" will
entitle Landlord to collect an additional 5% of such payment from Tenant and the
failure to pay the same shall likewise give Landlord the right and option to
cancel and terminate this Lease by written notice to Tenant or pursue any and
all other remedies available hereunder to Landlord.
7. CONDUCT OF BUSINESS OF TENANT:
A. Use of Premises. The Premises shall be occupied and used by Tenant
solely for the purpose of conducting therein the business of : Technology sales,
computer service sales and service integration.
B. Prompt Occupancy and Use: Tenant will occupy the Premises upon the
Commencement Date and thereafter continuously operate in 100% of the Premises
during the entire Lease Term, with a reasonable staff and Reasonable Business
Hours. As used herein, "Reasonable Business Hours" shall mean the hours of 9:00
AM to 5:00 pm Monday through Friday.
C. Exclusivity: During the term of this Lease, and provided Tenant is
not in default in any other of its obligations under this Lease, Landlord shall
not execute any other leases or provide space within the Shopping Center to any
other person or entity whose activities and operations are competitive with or
are similar to the business of technology sales, computer service sales and
service integration.
C. Conduct of business: Such businesses shall be conducted: (a) in Tenant's
own name or under the name Allstar Systems Rio Grande , unless another name is
previously approved in writing by the Landlord; and (b) in such manner as shall
assure the transaction of a maximum volume of business in and at the Premises.
Tenant's store shall be and remain open during reasonable business hours.
D. Operation by Tenant: Tenant covenants and agrees that it will: not
place or maintain any merchandise, vending machines or other articles in any
vestibule or entry of the Premises or outside the Premises; store garbage,
trash, rubbish and other refuse in rat-proof and insect-proof containers inside
the Premises, and remove the same frequently and regularly and if directed by
Landlord, by such means and methods and at such times and intervals as are
designed by Landlord, all at Tenant's cost; not permit any sound system audible
or objectionable advertising medium visible, outside the Premises; keep all
mechanical equipment free of vibration and noise and in good working order and
condition; not commit or permit waste or a nuisance upon the Premises; not
permit or cause odors to emanated or be dispelled from the Premises; not solicit
business in the Common Area nor distribute advertising matter to, in or upon any
Common Area; not permit the loading or unloading or the parking or standing of
delivery vehicles outside any area designated therefore, nor permit any use of
vehicles which will interfere with the use of any Common Area in the Shopping
Center; comply with all laws, recommendations, ordinances, rules and regulations
of governmental, public, private and other authorities and agencies, including
those with authority over insurance rates, with respect to the use or occupancy
of the Premises regardless of when they became effective; light all signs each
night of the years for not less than one hour after the Premises are permitted
to be closed; not permit any noxious, toxic or corrosive fuel or gas, dust, dirt
or fly ash on the Premises; nor place a load of any floor in the Shopping Center
which exceeds the floor load per square foot which such floor was designed to
carry.
E. Storage: Except in emergencies, Tenant shall have in the Premises only
merchandise which Tenant intends to sell at retail at, in, or from the Premises,
or as used in relation to the permitted use.
F. Painting, Decorating, Displays, Alterations: Tenants will not paint,
decorate or change the architectural treatment of any part of the exterior of
the Premises nor any part of the interior of the Premises visible from the
exterior nor make any structural alterations, additions or changes in the
Premises without Landlord's written approval thereto, and will promptly remove
any paint, decoration, alteration, addition or changes applied or installed
without the Landlords's approval or take such other action with respect thereto
as Landlord directs.
Tenants will install and maintain at all times, subject to the other
provisions of this Section F, merchandise displays in any show windows of the
Premises; the arrangement, style, color and general appearance thereof and of
displays in the interior of the Premises which are visible from the exterior,
including, but not limited to, window displays, advertising matters, signs,
merchandise and store fixtures, to be maintained in keeping with the character
and standards of the Center.
G. Sales and Dignified Use: No public or private auction or any fire,
"going out of business," bankruptcy or similar sales or auctions shall be
conducted in or from the Premises and the Premises shall not be used except in a
dignified and ethical manner consistent with general high standards of
merchandising in the Center and not in a disreputable or immoral manner or in
violation of the national, state or local laws.
8. PARKING, COMMON AREA AND CHARGE
A. Common Areas: (I) All parking areas, access roads and facilities
furnished, made available or maintained by Landlord in or near the Center,
including employee parking areas, truck ways, driveways, loading docks and
areas, delivery areas, package pickup stations, pedestrian sidewalks, malls (
including enclosed mall) courts and ramps, landscaped areas, retaining walls,
stairways, bus stops, first-aid and comfort stations, lighting facilities, and
other areas and improvements provided by Landlord for the general use in common
of tenants and their customers in the Plaza ( all herein called "Common Areas")
shall at all times be subject to the exclusive control and management of
Landlord, and Landlord shall have the right, from time to time, to establish,
modify and enforce reasonable rules and regulations with respect to all Common
Areas. Tenant agrees to comply with all rules and regulations set forth in
Exhibit "C" attached hereto and all reasonable amendments thereto.
(ii) Landlord shall have the right from time to time to change the
sizes, locations, shapes and arrangements of parking areas and other Common
Areas; PROVIDED, HOWEVER, that the size of parking areas on the Total Tract, as
shown upon Exhibit "A" remain in compliance with applicable municipal
requirements. Landlord shall have the right to restrict parking by employees to
designated areas; construct surface, sub-surface or elevated parking area and
facilities; establish and from time to time change the level or grade of parking
surfaces; enforce parking charges (by meters or otherwise) with appropriate
provisions for ticket validating; and do and perform such other acts in and to
said areas and improvements as Landlord in its sole discretion, reasonably
applied, deemed advisable for the use thereof by tenants and their customers.
(iii) Condemnation or other taking by any public authority, or sale in lieu
of condemnation, or any or all of said parking areas shall not constitute a
violation of any covenant by Landlord or entitle Tenant to terminate this Lease
or any abatement of its rent hereunder.
B. Use of Common Areas: Tenant and its business invitees, employees and
customers shall have the nonexclusive right, in common with Landlord and all
others to whom Landlord may from time to time impose and the rights of Landlord
set forth above. Tenant shall pay Landlord, upon demand, $25.00 for each day on
which a car of Tenant a concessionaire, employee or agent of Tenant is parking
outside any area designated by Landlord for employee parking. Tenant authorizes
Landlord to cause any such car to be towed from the Shopping Center and Tenant
will reimburse Landlord for the cost thereof upon demand, and otherwise
indemnity and hold Landlord harmless with respect thereto. Tenant shall abide by
all rules and regulations and cause its concessionaires, officers, employees,
agents, customers, and invitees to abide thereby. Landlord may at any time close
temporarily any Common Area to make repairs or changes, prevent the acquisition
of public rights therein, discourage non-customer parking, or for other
reasonable purposes. Tenant shall furnish Landlord license numbers and
description of cars used by Tenant and its concessionaires, officers and
employees. Tenant shall not interfere with Landlord's other tenants' rights to
use any part of the Common Areas. Landlord shall designate thirty-five (35)
parking spaces for specific use by Tenant and Tenant's customers. Specifically,
such spaces shall be designated on the site plan attached as Exhibit "A" of the
Lease.
C. Expense of Operating and Maintaining the Common Areas: The term
"Operating Expenses" as used herein means the total cost and expense incurred by
Landlord in operating and maintaining the Common Areas, including, without
limitation, the following: (I) premiums for liability, rent and property
insurance for the Shopping Center; (ii) real and personal property taxes
assessed against the Shopping Center; (iii) landscaping, watering and gardening
expense incurred in connection with the operation of the Shopping Center; (iv)
the expense of maintenance, repair, painting and replacement of any part of or
facility within the Shopping Center and all equipment used in connection
therewith; (v) the expense of cleaning, striping, snow removal and lighting of
the Common Areas; (vi) the expense of maintaining, repair and replacement and
depreciation on machinery and equipment used in the maintenance and cleaning of
the Common Ares and properly allocable thereto; (vii) the cost of police, fire
protection, guard and security services; (viii) total compensation and benefits
(including premiums for worker's compensation insurance) of all personnel
employed by Landlord to operate, maintain and service the Common Areas; (ix)
utility expense incurred in operating the Common Area; (x) any cost or expense
incurred by Landlord in the contest of the amount of real and personal property
taxes assessed against the Shopping Center; (xi) such other expenses reasonably
incurred by Landlord in operating and maintaining the Common Areas in a
first-class condition; and (xii) and a Administration equal to 15% of the
foregoing cost. During each of the second (2nd) and third (3rd) Lease Years
only, and subject to the exception for taxes and insurance (as described below),
Landlord shall assure that Tenant's proportionate share of the Operating
Expenses in each Lease Year shall not exceed As per Paragraph 36 Miscellaneous,
Section O. Additional Provisions, E. CAM, Taxes And Insurance. In all events,
however, Tenant acknowledges and agrees that Landlord has limited or no power to
control charges for taxes and insurance applicable to the Premises. Accordingly,
Landlord's agreement to provide certain maximum amounts to the Tenant's share of
the Operating Expenses (also known as "CAM Charges") as provided in this
paragraph shall not apply to any increases for taxes and insurance for the
applicable Lease Year.
D. Payment of Operating Expense: Tenant agrees to pay Landlord, as
additional rent, in the manner hereinafter provided, Tenant's Share of the
Operating Expenses; Tenant's Share thereof being the Operating Expenses
multiplied by a fraction, the numerator of which is the number of square feet in
the Premises and the denominator of which is the total number of square feet
leasable to tenants of the Shopping Center.
The additional rent agreed to be paid by Tenant to Landlord pursuant to
this Lease shall be estimated by Landlord at the beginning of each Lease Year
and paid monthly by Tenant to Landlord based upon the Operating Expenses for the
preceding Lease Year; each such monthly payment to equal one-twelfth (1/12) of
Tenant's proportionate share of the Operating Expenses for the preceding Lease
Year. At the end of each Lease Year Landlord shall compute the Operating
Expenses for such period of time and compute Tenant's proportionate share
thereof. Having done so, Landlord shall invoice Tenant thereof, deducting
therefrom the amount paid by Tenant during the preceding period of time. Should
Tenant owe any additional sum as evidenced by such invoice, the amount thereof
shall be paid to Landlord by Tenant within (10) ten days after receipt of such
invoice by Tenant. Conversely, should the invoice reflect an overpayment by
Tenant to Landlord during the preceding period, the amount of such overpayment
shall be deducted from the next monthly payments due from Tenant to Landlord
pursuant to this section. In addition, simultaneously with the giving of the
above referenced invoice, Landlord shall advise Tenant of the estimated monthly
amount due by Tenant to Landlord during the next twelve (12) months period.
E. Square Footage: In measuring the number of square feet in the Premises
and the total number of square feet leasable to tenants of the Shopping Center,
all such measurements shall be from the exterior walls and store fronts, and the
center line of party walls. In the event Landlord's actual field measurement of
the Premises shall disclose a square foot area contained in the Premises at a
variance with the square foot area stated in this Lease, Landlord may, at it's
option, adjust the number of the Premises for purposes of this Lease. In making
the determination as to the number of square feet from time to time leasable to
tenants in the Shopping Center, such determination shall be made at the
beginning of Lease Year throughout the term of this Lease.
9. MAINTENANCE OF LEASE PREMISES:
A. Maintenance by Landlord: Landlord shall keep or cause to be kept the
foundations, roof and structural portions of walls of the Premises in good
order, repair and condition except for damage thereto due to the acts or
omissions of Tenants, its employees or invitees. Landlord shall commence
required repairs as soon as reasonably practicable after receiving written
notice from Tenant thereof. Except as provided in this Section, Landlord shall
not be obligated to make repairs, replacements or improvements of any kind upon
the Premises, or to any equipment, merchandise, stock in trade, facilities or
fixtures therein, all of which shall be Tenant's responsibility.
In all events, however, Tenant shall not be required to replace equipment
categorized as capital items in accordance with generally accepted accounting
principles such as HVAC units, provided that during the term of this Lease,
Tenant shall in good faith diligently comply with its obligations to maintain
such equipment and their appurtenances as provided in Section 9B of this Lease.
B. Maintenance by Tenant: Tenant shall at all times keep the Premises
(including all entrances and vestibules) and all partitions, window and window
frames and moldings, glass doors, door openers, fixtures, equipment and
appurtenances thereof (including lighting, heating, electrical, plumbing,
ventilating, and air conditioning fixtures and systems and other mechanical
equipment and appurtenances) and all parts of the Premises not required herein
to be maintained by Landlord in good order, condition and repair and clean,
orderly, sanitary and safe, damage by unavoidable casualty excepted, (including
but not limited to doing such things as are necessary to cause the Premises to
comply with applicable laws, ordinances, rules, regulations and orders or
governmental and public bodies and agencies. If replacement of equipment,
fixtures and appurtenances thereto are necessary, Tenant shall replace the same
with equipment, fixtures and appurtenances of the same quality, and repair all
damages done in or by such replacement. If Tenant fails to perform work
resulting from Tenant's acts, actions or omissions and add the cost of the same
to the next installment of Minimum Monthly Rent due hereunder. Landlord shall
warrant the HVAC, mechanical, major electrical and plumbing for a period of
sixty (60) days after possession.
C. Surrender of Premises: At the expiration of the tenancy hereby created,
Tenant shall surrender the Premises in the same condition as they were in on the
Commencement Date, reasonable wear and tear and damage by unavoidable casualty
excepted, and deliver all keys for, and all combinations on locks, safes and
vaults in, the Premises to Landlord at Landlord's Notice Address.
D. Maintenance Contract: Tenant agrees that immediately upon taking
possession of the Premises to enter into a valid standard maintenance contract
for the routine and regular maintenance of all heating and air conditioning
equipment, said contract to be at the sole expense of the Tenant and will be
renewed annually during the entire term of the Lease or any renewals or
extensions thereof. Tenant shall be responsible for repairs as well as
maintenance of said equipment.
E. Fire Extinguishers: Tenant agrees to supply and maintain at its own
expense any fire extinguishers, or other fire prevention equipment required by
laws, rules, orders, ordinances, and regulations of any city, county, or state
in which the Premises are located, and/or required by any underwriters
association, bureau, or any other similar body have jurisdiction involving said
Premises.
10. SIGNS, AWNINGS, CANOPIES, FIXTURES ALTERATIONS, ROOF AND WALLS:
A. Fixtures: All fixtures installed by Tenant shall be new or completely
reconditioned.
B. Removal and Restoration by Tenant: All alterations, changes and
additions and all improvements, including leasehold improvements, made by
Tenant, or made by Landlord on Tenant's behalf, whether part of Tenant's Work or
not and whether or not paid for wholly or in part by Landlord, shall remain
Tenant's property for the Lease Term. Any alterations, changes, additions and
improvements shall immediately upon the termination of this Lease become
Landlord's property, be considered part of the Premises, and not be removed at
or prior to the end of the Lease Term without Landlord's written consent unless
Landlord requests Tenant to remove same. If Tenant fails to remove any shelving,
decoration, equipment, trade fixtures and personal property then Tenant shall
repair or pay for the repair of any damage done to the Premises resulting from
removing the same.
C. Tenant Shall Discharge All Liens: Tenant's shall promptly pay all
contractors and materialman, and not permit or suffer any lien to attach to the
Shopping Center or any part thereof, and shall and does hereby indemnify and
save harmless Landlord against the same. Landlord shall have the right to
require Tenant to furnish a bond or other indemnity satisfactory to Landlord
prior to the commencement of any work by the Tenant on the Premises, or if any
lien attaches or is claimed, to require such bond or indemnity in addition to
all other remedies.
D. Signs, Awnings, and Canopies: Tenant will not place any exterior door
window or any wall of the Premises or otherwise, any sign, awning, canopy,
advertising matter, decoration, lettering or other things of any kind which do
not comply with the Sign Criteria set forth in Exhibit "B" attached hereto.
E. Roof and Walls: Landlord shall have the exclusive right to use all or
part of the roof, side and rear walls of the Premises for any purpose, including
but not limited to erecting signs or other structures on or over any part of the
same, erecting scaffolds and other aids to the construction and installations of
the same, and installing, maintaining, using, repairing and replacing pipes,
ducts, conduit and wires leading through, to or from the Premises and serving
other parts of the Shopping Center in locations which do not materially
interfere with Tenant's uses of the Premises. Tenant shall have no right
whatsoever to the exterior of exterior walls or the roof of the Premises or any
portion of the Shopping Center outside the Premises except as provided in
Section, hereof.
11. REAL ESTATES TAX: Landlord shall promptly pay all taxes commonly called
real estate taxes levied upon, or assessed against the Shopping Center of which
the Premises are a part during the term of this Lease; the amounts so paid being
an Operating Expense.
12. PERSONAL PROPERTY TAXES: During the term of this lease Tenant shall pay
prior to delinquency all taxes assessed against and levied upon fixtures,
furnishings, equipment and all other personal property of Tenant contained in
the Premises.
13. UTILITIES: Tenant agrees to pay before delinquency all charges for gas,
heat, power, electricity, telephone, charges and all other utility charges
including hook up or connection fees or charges which may accrue with respect to
the Premises during the term of this Lease whether the same be charged or
assessed at flat rates, measured by separate meters or prorated by the utility
company or Landlord. Landlord shall in no event be liable to Tenant for any
interruption in the service of any such utilities to the Premises, howsoever
such interruption may be caused; and this Lease shall continue in full force and
effect despite any such interruptions.
14. INSURANCE:
A. Landlord's Obligations: Landlord shall procure and maintain at its
own expense during the term of this Lease such fire and extended coverage
insurance on the buildings in Shopping Center as Landlord deems appropriate; the
expense thereof being Operating Expense.
B. Tenant's Obligations:
(I) Tenant will, during the full term of this Lease or any
renewal or extension thereof, carry in a standard company full coverage
insurance on all plate glass in the Premises and cause same to be replaced if
chipped, cracked or broken; said insurance policy or certificate from Tenant's
insurance company to be deposited with Landlord or his agent, and such policy
shall provide that it shall not be canceled for any reason unless and until
Landlord or his agent is given fifteen (15) days notice in writing by the
insurance company.
(ii) Tenant's will, during the full term of this agreement or
any renewal or extension thereof, carry in a standard company, for the
protection of himself and Landlord, public liability insurance with limits of at
least Five Hundred Thousand Dollars ($500,000.00) and property damage per
occurrence insurance with minimum limits of Fifty Thousand Dollars ($50,000.00);
said insurance policy or certificate from Tenant's insurance company to be
deposited with Landlord or his agent, and such policy shall provide that it
shall not be canceled for any reason unless and until Landlord or his agent is
given fifteen (15) days' notice in writing by the insurance company.
(iii) Tenant also agrees to carry insurance against fire and
such other risks as are from time to time included in standard Extended Coverage
insurance, for the full insurable value, covering all of Tenant's's merchandise,
trade fixtures, furnishings, wall coverings, floor coverings, carpeting, drapes,
equipment and all items of personal property of Tenant located on or within the
Premises. Tenant will provide Landlord with copies of the polices or
certificates evidencing that such insurance is in full force and effect and
stating the terms thereof.
C. Mutual Waiver of Subrogation Rights: Landlord and Tenant and all parties
claiming under them mutually release and discharge each other from all claims
and liabilities arising from or caused by any casualty or hazard covered or
required hereunder to be covered in whole or in part by insurance or in
connection with property on or activities conducted on the Premises, and waive
any right of subrogation which might otherwise exist in or accrue to any person
on account thereof, provided that such release shall not operate in any case
where the effects is to invalidate the cost of such insurance coverage
(provided, that in the case of increased cost, the other party shall have right,
within thirty (30) days written notice, to pay such increases cost, thereby
keeping such release and waiver in full force and effect).
D. WAIVER: Landlord, its agents and employees, shall not be liable for, and
Tenant waives all claims for damage including but not limited to consequential
damages, to person, property or otherwise, sustained by Tenant or any person
claiming through Tenant resulting from any accident or occurrence in or upon any
part of the Shopping Center including, but no limited to, claims for damages
resulting from: (a) any equipment or appurtenances becoming out of repair: (b)
Landlord's failure to keep any part of the Shopping Center in repair; (C) injury
done or caused by wind, water, or other natural elements; (d) any defect in or
failure of plumbing, heating or air conditioning equipment, electric wiring or
installation thereof, gas, water, and steam pipes, stairs, porches railings or
walks; (e) broken glass; (f) the backing up of any sewer pipe or downspout; (g)
the bursting, leaking or running of any tank, tub, washstand, water closet,
waste pipe, drain or any other pipe or tank in, upon or about such buildings on
the Premises; (h) the escaped of steam or hot water; (I) water, snow or ice upon
the Premises; (j) the falling of any fixture, plaster or stucco; (k) damage to
or loss by theft or otherwise of property of Tenant's or other; (l) acts or
omissions of persons in the Premises, other tenants in the Shopping Center,
occupants of nearby properties, or any other persons; and (m) any act or
omission of owners or adjacent or contiguous property, or of Landlord, its
agents or employees. Tenant's agreement to waive all such claims as set forth in
this Section shall not apply in the event that any such claims arise due to
Landlord's gross negligence or willful misconduct. All property of Tenant kept
in the Premises shall be so kept at Tenant's risk only and Tenant's shall save
Landlord harmless from claims arising out of damage to the same, including
subrogation claims by Tenant's insurance carrier.
15. RIGHT OF ENTRY: Landlord, its agents and employees shall have the right
to enter the Premises from time to time at reasonable times to examine, show
them prospective purchasers, and other persons, and make such repairs,
alterations, improvements or additions as Landlord deems desirable. Rent shall
in no wise abate while any such repairs, alterations, improvements, or additions
are being made. During the last six (6) months of the Lease Term, Landlord may
exhibit the Premises to prospective tenants ans maintain upon the Premises
notices deemed advisable by Landlord. In addition, during any apparent
emergency, Landlord or its agents may enter the Premises forcibly without
liability therefor and without in any manner affecting Tenant's obligations
under this Lease. Nothing herein contained, however, shall be deemed to impose
upon Landlord any obligation, responsibility or liability whatsoever, for any
care, maintenance or repair except as otherwise herein expressly provided.
16. INDEMNIFICATION: Tenant shall indemnify and save harmless Landlord from
against any and all liability, liens, claims, demands, damages, expenses, fees,
costs, fines, penalties, suits, proceedings, actions and causes of action of any
and every kind and nature arising or growing out of or in any way connected with
Tenant's use, occupancy, management or control of the Premises or Tenant's
operations, conduct or activities in the Shopping Center. The provisions
regarding Tenant's indemnifications to Landlord shall not apply in the event
that any such obligations for indemnification arise due to Landlord's gros
negligence or willful misconduct.
17. SUBORDINATION: The Lease shall be prior, senior and superior at all
time s to the lien of any first mortgage and mortgages which now or hereafter
are a lien upon any part of the Total Tract. However, upon Landlord's request,
Tenant will subordinate its rights hereunder to the liens of any mortgages or
any liens resulting from any method of financing or refinancing (hereinafter
collectively referred to as "mortgage") now and hereafter existing against all
or part of Total Tract ( as set out Exhibit "A" hereinbefore), and to all
renewals, modifications, replacements, consolidations and extensions thereof,
and shall execute and deliver all documents requested by a mortgage or security
holder to effect such subordination, provided the mortgage or security holder
agrees in writing that if Landlord defaults under the mortgage, said mortgage or
security holder shall not disturb Tenant's possession while Tenant is not in
default hereunder.
18. DAMAGE AND DESTRUCTION:
A. Damage to Premises: If the Premises hereafter damaged or destroyed or
rendered partially untenable for their accustomed use by fire or other casualty
insured under the coverage which Landlord is obligated to carry hereunder,
Landlord shall promptly repair the same to substantially the condition which
they were in immediately prior to the happenings of such casualty (excluding
stock in trade, fixtures, furniture, carpeting, floor coverings, drapes and
equipment), and from the date of such casualty until the Premises are so
repaired and restored, the Minimum Monthly Rent payments hereunder shall abate
in such proportion as the part of said Premises thus destroyed or rendered
untenable bears to the total Premises PROVIDED, HOWEVER, that Landlord shall not
be obligated to repair and restore if such casualty is caused directly or
indirectly by the negligence of a Tenant, its agents, and employees; and
PROVIDED, FURTHER, that Landlord shall not be obligated to expend for such
repair or restoration an amount in excess of the insurance proceeds recovered
and made available to Landlord as a result of such damages, and PROVIDED,
FURTHER, that if the Premises be damaged, destroyed or rendered untenable for
their accustomed uses by fire other casualty to the extent of more that 50% of
the cost to replace the Premises during the last two years of the term of this
Lease, then Landlord shall have the right to terminate this Lease effective as
of the date of such casualty by giving to Tenant, within sixty (60) days after
happening of such casualty, written notice of such termination. If such notice
be given, this Lease shall terminate and Landlord shall promptly repay to Tenant
any rent thereto fore paid in advance which was not earned at the date of such
casualty. If said notice is not given and Landlord is required or elects to
repair or restore the Premises as herein provided, then Tenant shall promptly
repair or replace its stock in trade, fixtures, furnishings, furniture,
carpeting, wall covering, floor covering, drapes and equipment to the same
condition as they wherein immediately prior to the casualty, and if Tenant has
closed its business, Tenant shall promptly reopen for business upon the
completion of such repairs.
19. EMINENT DOMAIN:
A. Eminent Domain: If ten percent (10%) or more of the Premises or 15% or
more of the Shopping Center shall be under threat of condemnation or condemned
by right of eminent domain for any public or quasi public use or purpose, the
Landlord at its election may terminate this Lease by giving notice to Tenant of
its election, and in such event rentals shall be apportioned and adjusted as of
the date of termination. If the Lease shall not be terminated as aforesaid, then
it shall continue in full force and effect, and Landlord shall within a
reasonable time after possession is physically taken (subject to delays due to
shortage of labor, materials or equipment, labor difficulties, breakdown or
equipment, government restrictions, fires, other casualties or other causes
beyond the reasonable control of Landlord) repair or rebuild what remains of the
Premises for Tenant's occupancy, provided, however, Landlord shall have no
obligation to expend in excess of funds secured in relation to threat of
condemnation or condemnations; and a just proportion to the Minimum Monthly
Rental shall be abated, according to the nature and extent of the injury to the
Premises until such repairs and rebuilding are completed, and thereafter for the
balance of the Lease Term.
B. Damages: Landlord reserves and Tenant assigns Landlord, all rights to
damages on account of any taking or condemnation or any act of any public or
quasi pubic authority for which damages are payable. Tenant shall execute such
instruments of assignment as Landlord requires, join with Landlord in any action
for the recovery of damages, if requested by Landlord, and turn over to Landlord
any damages recovered in any proceeding. If Tenant fails to execute instruments
required by Landlord, or undertake such other steps as requested, Landlord shall
be deemed the duly authorized irrevocable agent and attorney-in-fact of Tenant
to execute such instruments and undertake such steps on behalf of Tenant.
However, Landlord does not reserve any damages payable for trade fixtures
installed by Tenant as its own cost which are not part of the realty.
20. ASSIGNMENT AND SUBLETTING: Lessee shall not assign this Lease or any
interest therein whether voluntarily, by operation of law, or otherwise and
shall not sublet the Premises or any part thereof, except by written permission
and consent of Landlord being first hand and obtained. Consent of Landlord to
any such assignment shall not be unreasonably withheld if: (I) At the time of
such assignment or transfer Tenant is not in default in the performance and
observance of any of the covenants and conditions of this Lease; (ii) The
assignee or subtenant or Tenant shall expressly assume in writing all of
Tenant's obligations hereunder; (iii) Tenant shall provide proof to Landlord
that the assignee or subtenant has a financial condition which is satisfactory
to landlord and Landlord's lender and (iv) The Premises continue to be used
solely for the purposes set forth in Paragraph 7A and the assignee or subtenant
is, in Landlord's opinion, capable of operating such business. In connection
with any such assignment or sublease, Tenant or the assignee of Tenant shall pay
to Landlord a fee of $250.00 for legal and administrative costs incurred by
Landlord.
Any such subleasing or assignment, even with the approval of Landlord
shall not relieve Tenant or any Guarantor from liability for payment of all
forms of rental and other charges herein provided or from the obligations to
keep and be bound by the terms, conditions and covenants of this Lease. The
acceptance of rent from any other person shall not be deemed to be a waiver of
any of the provisions of this Lease, or a consent in the assignment or
subletting of the Premises. Consent to any assignment or subletting shall not be
deemed a consent to any further assignment or subletting. Any merger,
consolidation or transfer of corporate shares of Tenant, if Tenant is a
corporation, so as to result in a change in the present voting control of the
Tenant's by the person or persons owning a majority of said corporate shares on
the date of this Lease, shall constitute an assignment and be subject to the
conditions of this paragraph.
21. LANDLORD'S PERFORMANCE FOR ACCOUNT OF TENANT: If the Tenant shall
continue in default in the performance of any of the covenants or agreements
herein contained after the time limit for the curing thereof, then Landlord may
perform the same for the account of Tenant. Any amount paid or expense or
liability incurred by Landlord in the performance of any such matter for the
account of Tenant shall be deemed to be additional rent and the same (together
with interest thereon at the maximum rate permitted by law from the date upon
which any such expense shall have been incurred) may, at the option of Landlord,
be added to any rent then due or thereafter falling due hereunder.
22. DEFAULT BY TENANT:
A. Right to Re-Enter: The following shall be considered for all purposes to
be defaults under and breaches of this Lease: (a) any failure Tenant to pay rent
or other amount when due hereunder; (b) any failure by Tenant to perform or
observe any other of the terms, provisions, conditions and covenants of this
Lease for more than ten (10) days after written notice of such failure; (C)
Landlord determining that Tenant had submitted any false report required to be
furnished hereunder; (d) Tenant shall do anything upon or in connection with the
Premises or the construction of any part thereof which directly or indirectly
interferes in any way with, or results in a work stoppage in connection with,
construction of any part of the Shopping Center or any other tenant's spaces;
(e) Tenant shall become bankrupt or insolvent or file or have filed against it a
petition in bankruptcy or for reorganization or arrangement or for the
appointment of a receiver or trustee of all or a portion of Tenant's property,
or Tenant makes an assignment for the benefit of creditors; (f) if Tenant
abandons or vacates or does not do business in the Premises for ten (10) days,
or (g) this Lease or Tenant's interest herein or in the premises or any
improvements thereon or any property of Tenant are executed upon or attached; or
(h) the Premises comes into the hands of any person other than expressly
permitted under this Lease. In any such event, and without grace period, demand
or notice, except as herein provided ( the same being hereby waived by Tenant),
Landlord, in addition to all other rights or remedies it may have, shall have
the right thereupon or at any time thereafter to terminate this Lease by giving
notice to Tenant stating the date upon which such termination shall be
effective, and shall have the right, either before or after any such
termination, to re-enter and take possession of the Premises, remove all persons
and property from the Premises and store such property at Tenant's's expense,
all without notice or resort to legal process and without being deemed guilty of
trespass or becoming liable for any loss or damage occasioned thereby. Nothing
herein shall be construed to require Landlord to give notice before exercising
any of its rights and remedies provided for in this Lease.
B. Right to Relet: If Landlord re-enters as above provided, or if Landlord
takes possession pursuant to legal proceedings or otherwise, Landlord may ether
terminate this Lease or Landlord may, from time to time, without terminating
this Lease, make such alterations and repairs as it deems advisable to relet the
premises, and relet the Premises or any part thereof for such term or terms
(which may extend beyond the Lease Term) and at such rentals and upon such other
terms and conditions as Landlord in its sole discretion deems advisable. Upon
each such reletting all rentals received by Landlord therefrom shall be applied,
first, to any indebtedness other than rent due hereunder from Tenant of
Landlord; second, to pay any costs and expenses of reletting, including brokers
and attorneys' fees and costs of alterations and repairs; third, to rent due
hereunder, and the residue, if any, shall be held by Landlord and applied in
payment of future rent as it becomes due hereunder.
If rentals received from such reletting during any month are less than that
to be paid during that month by Tenant hereunder, Tenant shall immediately pay
any such deficiency to Landlord. No re-entry or taking possession of the
Premises by Landlord shall be construed as an election to terminate this Lease
unless a written notice of such termination is given by Landlord.
Notwithstanding any such reletting without termination, Landlord may at any
time thereafter terminate this Lease for any prior breach or default. If
Landlord terminates this Lease for any breach, in addition to any other remedies
Landlord may have, Landlord may recover from Tenant all damages incurred by
reason of such breach or default, including all costs of retaking the Premises
and including the excess, if any, of the total rent and charges reserved in this
Lease for the remainder of the Lease Term over the then reasonable rental value
of the Premises for the remainder of the Lease Term all of which shall be
immediately due and payable by Tenant to Landlord. In determining the rent
payable by Tenant hereunder subsequent to default, the Minimum Monthly Rental
for each month of the unexpired portion of the Lease Term shall have equal the
average Minimum Monthly Rental paid during each Lease Year which Tenant was
obligated to pay from the commencement of the Lease Term to the time of default,
or during the preceding One (1) full calendar years, whichever period is
shorter.
Notwithstanding the provisions of the Texas Property Code, upon the
occurrence of an event of default under the Lease, Landlord shall be entitled to
change locks at the Premises. Tenant agrees that entry may be granted for that
purpose through use of a duplicate or master key or any other means, that the
same may be conducted out of the presence of Tenant if Landlord so elects, that
no notice shall be required to be posted by the Landlord on any door to the
Premises (or elsewhere) disclosing the reason for such action or any other
further information, and that Landlord shall not be obligated to provide a key
to the changed lock to Tenant unless Tenant shall have first: (a) brought
current all payments due to Landlord under this Lease, provided, however, that
if Landlord has thereforeto formally and permanently repossessed the Premises,
or has terminated this Lease, then Landlord shall be under no obligation to
provide a key to the new lock(s) to Tenants regardless of Tenant's payment of
past-due amounts, damages, or any other payments or amounts of any nature or
kind whatsoever; (b) fully cured and remedied to Landlord's satisfaction all
other defaults of Tenant under this Lease (but if such defaults are not subject
to cure, such as early abandonment or vacation of the Premises, the Landlord
shall not be obligated to provide the new key to Tenant under any circumstance),
and (c) given Landlord security and assurance satisfactory to Landlord that
Tenant intends to and is able to meet and comply with its future obligations
under this Lease, both monetary and nonmonetary.
In the event Landlord is ever required by law to mitigate damages due to
Tenant's default, the placement of a sign upon the Premises advertising the
Premises for lease shall deemed to satisfy any obligation of Landlord to
mitigate its damages.
C. Counterclaim: If Landlord commences any proceedings for non-payment of
rent, Minimum Monthly Rent, Percentage Rent or additional rent Tenant will not
interpose any counterclaim of any nature or description of proceedings. This
shall not, however, be construed as a waiver if Tenant's's right to assert such
claims in a separate action brought by Tenant. The covenants to pay rent and
other amount hereunder are independent covenants and Tenant shall have no right
to hold back, offset or fail to pay any such amounts for default by Landlord or
any other reason whatsoever.
D. Waiver of Rights of Redemption: To the extent permitted by law, Tenant
waives any and all rights of redemption granted by or under any present or
future laws if Tenant is evicted or dispossessed for any cause, or if Landlord
obtains possession of the Premises due to Tenant's default hereunder or
otherwise.
E. To secure the performance of Tenant's obligations under this Lease,
Tenant, as Debtor, and referred to in this paragraph as "Debtor", hereby grants
Landlord, as "Secured Party", a security interest in and an express contractual
lien upon all Debtor's equipment, furniture, furnishings, appliance, goods,
trade fixtures, inventory, chattels, and other personal property of Debtor which
is now on the Premises or which is placed on the Premises at some later date,
and all proceeds from such items. This property shall not be removed from the
Premises without consent of Secured Party until all arrearages in rent and all
other sums of money being due to Secured Party under this Lease have been paid
and discharged, and all covenants, agreements, and conditions of this Lease have
been fully complied with and performed by Debtor. Secured Party is authorized
and Debtor hereby irrevocably and throughout the term of this Lease (and any
extensions or renewals thereof) appoints Secured Party as its attorney-in-fact
to prepare and file financing statements signed only by Secured Party as
attorney-in-fact on behalf of Debtor covering the security described above;
moreover, Debtor agrees to sign the same upon request. Notwithstanding the
foregoing, Secured Party is hereby authorized to file a duplicate original or
Xerox copy of this Lease as a financing statement with the Office of the
Secretary of State and with the appropriate county clerk's office for the county
where the Premises are located, as appropriate. Upon default under this Lease by
Debtor, any or all of Debtor's obligations to Secured Party secured hereby
shall, at Secured Party's option, be immediately due and payable without notice
or demand. In addition to all rights or remedies of Secured Party under this
Lease and the law, including the right to a judicial or nonjudicial foreclosure,
Secured Party shall have the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in the State of Texas. This security interest
hereby created shall survive the termination of this Lease if such termination
results from Debtor's default. The above-described security interest and lien
are in addition to and cumulative of the Landlord's lien provided by the laws of
the State of Texas. In the event Landlord sell Tenant's's property at a judicial
or nonjudicial foreclosure sale, tenant hereby expressly consents to and gives
Landlord the authority to bid on and purchase all or a portion of Tenant's
property at such sale. Provided, however, Landlord shall subordinate its
Landlord's lien on any of Tenant's personal property located on the Premises
(whether statutory or contractual) to any UCC liens granted to any bona fide
third party lender of the Tenant.
23. DEFAULT BY LANDLORD: Landlord shall in no event be charged with default in
any of its obligations hereunder unless and until Landlord shall have failed to
perform such obligations within thirty (30) days (or such additional time is as
reasonably required to correct any such default) after written notice to
Landlord by Tenant, specifically describing such failure.
25. APPLICATION OF PAYMENTS RECEIVED FROM TENANT: Landlord shall have the right
to apply any payments made by Tenant to the satisfaction of any debt or
obligation of Tenant of Landlord according to Landlord's sole discretion and
regardless of the instructions of Tenant as to application of any such sum,
whether such instructions be endorsed upon Tenant's checks or otherwise, unless
otherwise agreed upon by both parties in writing. The acceptance by Landlord of
a check or checks drawn by others than Tenant shall in no ways affect Tenant's
liability hereunder nor shall it be deemed an approval of any assignment of this
Lease by Tenant.
26. Environmental Issues.
26.1 No Hazardous Materials. Tenant shall not cause or permit any Hazardous
Material to be brought upon, kept or used in or about the Premises or the Center
by Tenant, its agents, employees, contractors or invitees without the prior
written consent of Landlord, which Landlord shall not unreasonably withhold
provided Tenant demonstrates to Landlord's satisfaction that such Hazardous
Material is necessary or useful to Tenant's business and will be used, kept and
stored in a manner that complies with all laws regulating any such Hazardous
Material so brought upon or used or kept in or about the Premises or the Center.
26.2 Indemnification. In addition to, and without limitation on the general
indemnity obligations of Tenant under this Lease, Tenant specifically agrees
that it shall indemnify, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution in value of the Premises, the Center
or neighboring properties, damages for the loss or restriction on use of
rentable or usable space or of any amenity of the Premises, and sums paid in
settlement of claims, attorney's fees, consultant fees and expert fees) which
arise during or after the lease term as a result of any breach by Tenant of its
obligations under this Paragraph 36 or any contamination of the Premises, the
Center or neighboring properties resulting from the presence of Hazardous
Materials on or about the Premises caused or permitted by Tenant, its agents,
employees, contractors or invitees.
This indemnification of Landlord by Tenant includes, without limitation,
costs incurred in connection with any investigation of site conditions or any
clean-up, remedial, removal or restoration work required by any federal, state
or local governmental agency or political subdivision because of Hazardous
Material present on or in the Premises, the Center or neighboring properties.
Without limiting the foregoing, if the presence of any Hazardous Material on the
Premises, Center or neighboring properties caused or permitted by Tenant, its
agents, employees, contractors or invitees results in any contamination of the
Premises, Center or neighboring properties, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Premises, Center or
neighboring properties to the condition existing prior to the introduction of
any such Hazardous Material to the Premises, Center or neighboring properties
provided that Landlord's approval of such actions shall first be obtained.
Tenant further agrees to defend Landlord, its agents, employees, and assigns in
any administrative or judicial proceeding commenced by private individuals or
governmental entities seeking recovery of damages for personal injury or
property damage, or recovery of civil penalties or fines arising out of,
connected with, or relating to any breach by Tenant of its obligations under
this Paragraph 36 or any contamination of the Premises, the Center or
neighboring properties resulting from the presence of hazardous Materials on or
about the Premises, the Center or neighboring properties caused or permitted by
Tenant, its agents, employees, contractors or invitees. 'The foregoing indemnity
shall survive the expiration or earlier termination of this Lease.
26.3 Hazardous Material. As used herein, the term "Hazardous Material"
means any pollutant, toxic substance, regulated substance, hazardous waste,
hazardous material, hazardous substance, oil, hydrocarbon, asbestos or similar
item as defined in or pursuant to the Resource Conservation and Recovery Act, as
amended, the Comprehensive Environmental Response, Compensation, and Liability
Act, as amended, the Federal Clean Water Act, as amended, the Safe Drinking
Water Act, as amended, the Federal Water Pollution Control Act, as amended, the
Texas Water Code, as amended, the Texas Solid Waste Disposal Act, as amended, or
any other federal, state or local environmental or health and safety related,
constitutional provisions, law, regulation, ordinance, rule, or bylaw, whether
existing as of the date hereof, previously enforced or subsequently enacted
(collectively the "Environmental Laws").
26.4 Notice of Certain Events. Tenant shall immediately advise Landlord in
writing of (a) any governmental or regulatory actions instituted or threatened
under any Environmental Law affecting the Tenant or the Premises, (b) all claims
made or threatened by any third party against Tenant or the Premises or the
Center relating to damage, contribution, cost recovery, compensation, loss or
injury resulting from any Hazardous Materials, (C) the discovery of any
occurrence or condition on any real property adjoining or in the vicinity of the
Premises that could cause the Premises or the Center to be classified in a
manner which may support a claim under any Environmental Law, and (d) the
discovery of any occurrence or condition on the Premises or the Center or any
real property adjoining or in the vicinity of the Premises or the Center which
could subject Tenant, the Premises or the Center to any restrictions in
ownership, occupancy, transferability or use of the Premises under any
Environmental Law. Landlord may elect to join and participate in any
settlements, remedial actions, legal proceedings or other actions initiated in
connection with any claims under any Environmental Law and to have its
reasonable attorney's fees paid by Tenant. At its sole cost and expense, Tenant
agrees when applicable or upon request of Landlord to promptly and completely
cure and remedy every violation of an Environmental Law caused by Tenant, its
agents, employees, contractors or invitees.
27. NOTICES: All notices required to be given hereunder shall be in
writing, and if intended for the Landlord, shall be served upon an officer or
upon its agent, or shall be mailed by registered mail, postage paid, to the
principal place of business of the Landlord at: 3800 N. Mesa Suite D-2 El Paso,
Texas 79902 or if intended for the Tenant, shall be served upon one of the
officers of Tenant personally, or shall be mailed by registered mail, postage
paid, to the principal place of business of said Tenant at: 3800 N. Mesa Suite
B-1 El Paso, Texas 79902. Either party shall have the right to change its
principal office by service by registered mail, of such change.
28. SALE OF PREMISES BY LANDLORD: In the event of any sale of the Premises
by Landlord shall be and is hereby entirely freed and relieved of all liability
under any and all of its covenants and obligations contained in or delivered
from this Lease arising out of any act, occurrence or omission occurring after
the consummation of such sale; and the purchaser, at such sale or any subsequent
sale of the Premises shall be deemed, without any further agreement between
parties or their successors in interest or between the parties and any such
purchaser, to have assumed and agreed to carry out any and all of the covenants
and obligations of the Landlord under this Lease.
29. ATTORNEY'S FEES: In the event the Landlord finds it necessary to retain
an attorney in connection with the default by the Tenant in any of the agreement
or covenants contained in this Lease, Tenant shall pay reasonable attorney's
fees to said attorney.
In the event of any litigation regarding this Lease, the losing party shall
pay to the prevailing party's reasonable attorneys' fees.
30. TITLE OF SHOPPING CENTER:. Tenant's shall not have or acquire any
interest in the name of the Shopping Center. Landlord reserves the right to
change the name, title or address of the Shopping Center or the address of the
Premises at any time, and Tenant waives all claims for damages caused by such
change.
31. WAIVER: No delay or omission in the exercise of any right or remedy of
Landlord on any default by Tenant shall impair such a right or remedy or be
construed as a waiver. The receipt and acceptance by Landlord of delinquent rent
shall not constitute a waiver of any other default; it shall constitute only a
waiver or timely payment for the particular rent payment involved. No act or
conduct of Landlord, including without limitations, the acceptance of the keys
to the Premises, shall constitute an acceptance of the surrender of the Premises
by Tenant before the expiration of the term. Only notice from Landlord to Tenant
shall constitute acceptance of the surrender of the Premises and accomplish a
termination of the Lease. Landlord's consent to or approval of any act by Tenant
requiring Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of the
Lease.
32. SHORT FORM OF LEASE RECORDING: The parties hereto agree that at or
prior to commencement of the term they will execute, acknowledge, and deliver a
short form of Lease to the end that the same may be recorded among the Land
Records of the City or County in which the Premises is located. Recording
charges and any stamp or like tax shall be paid by Tenant. Prior approval of
recording must be obtained from Landlord.
33. SECURITY DEPOSIT: Landlord hereby acknowledges receipt from Tenant of
the sum of Nine Thousand Eight Hundred and Eighty (dollars) ($ 9,880.00 ), to be
held as collateral security or the payments of any rentals and any other sums of
money for which Tenant shall become liable to Landlord under this Lease, and for
the faithful performance by Tenant of all other covenants and agreements made
herein; said deposit is acknowledged as being the first and last month's Minimum
Monthly Rental due under this Lease.
34. HOLDING OVER AND SUCCESSORS:
A. Holding Over: If Tenant holds over of occupies the Premises
beyond the Lease Term (it being agreed there shall be no such holding over or
occupancy without Landlord's written consent), Tenant shall pay Landlord for
each day of such holding over a sum equal to 1.25 times the Minimum Monthly
rental prorated for the number of days of such holding over. If Tenant holds
over with or without Landlord's written consent Tenant shall occupy the Premises
on an tenancy from month to month and all other terms and provisions of this
Lease shall be applicable to such period.
B. Successors: All rights and liabilities herein given to or
imposed upon the respective parties hereto shall bind and insure to the several
respective heirs, successors, administrators, executors ans assigns of the
parties and if Tenant is more than one person, they shall be bound jointly and
severally by this Lease. No rights, however, shall insure to the benefit of the
assignee of Tenant unless the assignment was approved by Landlord in writing.
35. BROKERS OR FINDERS: Landlord has engaged CB Commercial/Southern Boarder
Partners ("CB") as its broker regarding the negotiation and execution of this
Lease. Landlord shall be fully responsible and shall pay all fees and other
expenses owing CB in connection with the transaction contemplated by this Lease.
Accordingly, Landlord shall indemnify Tenant for any claims for brokerage fees
or other compensation or reimbursements made by CB in connection with the
transactions contemplated by this Lease. Other than Landlord's engagement of CB
as described above, each party represents and warrants to the other that it has
engaged no broker or finder and that no claims for brokerage commissions or
finders fees will arise in connection with the execution of this Lease and each
party agrees to indemnify the other against, and hold it harmless from any
liability or expense (including attorney's fees) arising from such claim.
Each party represents and warrants other than the Brokers
named herein, to the other that it has engaged no Broker or Finder and that no
claims for brokerage commissions or finders' fees will arise in connection with
the execution of this Lease and each party agrees to indemnify the other
against, and hold it harmless from any liability or expense (including
attorney's's fees) arising from such claim.
36. MISCELLANEOUS:
A. Successors: The covenants hereby contained shall, subject
to the provisions as to assignment, apply to and bind the heirs, successors,
executors, administrators and assigns of all the parties hereto; and all of the
parties hereto shall jointly and severally liable hereunder.
B. Partial Invalidity: If any term, covenant, condition or
provision of this Lease is held by a Court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions hereof shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby.
C. Captions: The various headings and numbers herein and the
grouping of the provisions of this Lease into paragraphs are for the purpose of
convenience only and shall not be considered a part hereof.
D. Gender; Number: As used in this Lease whenever required by
the context hereof, each number, both singular and plural, shall include all
numbers, and each gender shall include all genders.
E. Applicable Laws: This Lease shall be governed by the law of
the Great State of Texas.
F. Time: Time is of the essence of this Lease.
G. Joint and Several Liability: If Tenant is a partnership or
other business organization the members of which as subject to personal
liability, the liability of each such member shall be deemed to be joint and
several.
H. Limitation of Liability: Anything to the contrary herein
contained, notwithstanding, there shall be absolutely no personal liability on
persons, firms or entitles who constitute Landlord with respect to any of the
terms, covenants, conditions, and provisions of this Lease, and Tenant shall
look solely to the interest of Landlord, its successors and assigns, in the
Total Tract for the satisfaction of each and every remedy of Tenant in the event
of default by Landlord hereunder; such exculpation of personal liability is
absolute and without any exception whatsoever.
I. Mortgagee's's Approval: If any mortgagee of the Shopping
Center requires any modifications of the terms and provisions of this Lease as a
condition to such financing as Landlord may desire, then, Landlord shall have
the right to cancel this Lease if Tenant fails or refuses to approve and execute
such modification(s) within thirty (30) days after Landlord's request therefore,
provided said request is made at least thirty (30) days prior to delivery of
possession. Upon such cancellation by Landlord, this Lease shall be null and
void and neither party shall have any liability either for damages or otherwise
to the other by reason of such cancellation. In no event, however, shall Tenant
be required to agree, and Landlord shall not have any right of cancellation for
Tenant's refusal to agree, to any modification of the provisions of this Lease
relating to: the amount of rent or other charges reserved herein; the size
and/or location of the Premises; the duration and/or commencement date of the
term; or reducing the improvements to be made by Landlord to the Premises prior
to delivery of possession.
J. Accord and Satisfaction: Landlord is entitled to accept,
receive and cash or deposit any payment made by Tenant for any reason, purpose
or in any amount whatsoever, and apply the same at Landlord's option to any
obligation of endorsement or statement on any check or letter of Tenant shall be
deemed an accord ans satisfaction or otherwise recognized for any purpose
whatsoever. The acceptance of any such check or payment shall be without
prejudice to Landlord's right to recover any and al amounts owed by Tenant
hereunder and the Landlord's right to pursue any other viable remedy.
K. Entire Agreement: There are no representations, covenants,
warranties, promises, agreements, conditions or undertakings, oral or written
between Landlord and Tenant other than herein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, charge or addition to
this Lease shall be binding upon Landlord or Tenant unless in writing and signed
by them.
L. No Partnership: Landlord does not, in any way or for any
purpose, become a partner, employer, principal, master, agent or joint venturer
of or with any Tenant.
M. Force Majeure: If either party hereto shall be delayed or
hindered in or prevented from performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, inability to procure material,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war or other reason of the like nature not eh fault of the party
delayed in performing work or doing acts required under this Lease, the period
for the performance of any such act shall be extended for a period equivalent to
the period of such delay. Tenant shall not be excused from any obligations for
payment of rent, percentage rent, additional rent or any other payments required
by the terms of the Lease when same are due, and all such amount shall be paid
when due.
N. Submission of Lease: Submission of Lease to tenant does not
constitute an offer to lease; this Lease shall become effective only upon
execution ans delivery thereof by Landlord and Tenant. Upon execution of this
Lease by Tenant, Landlord is granted ans irrevocable option for sixty (60) days
to execute this Lease within said period and thereafter return a fully executed
copy to Tenant. The effective date of this Lease shall be the date filled in on
Page 1 hereof by Landlord which shall be the date of execution by the last of
the parties to execute Lease.
O. ADDITIONAL PROVISIONS:
Lessee agrees to furnish upon execution as a condition of this Lease agreement,
as may be required by Lessor or any financial institutions connected with the
financing of University Hill Plaza, any or all of the following information:
A. Copy of Lessee's financial statement:
B. A company history report:
C. Corporate Tax I.D. number:
D. Social Security Number - to be used to obtain Lessee's credit history
Lessee hereby by consents to any individual or corporate
credit checks which may be required by Lessor or any financial institutions
connected with the financing of University Hill Plaza.
E. CAM, Taxes and Insurance: All Taxes, Insurance, and Common Area
Maintenance shall not exceed $1,480.00 per month, for years one (1), two (2) and
three (3) only.
F. Other: Base Rent $8,400.00
Total $9,880.00
G. Early Termination: After the third (3rd) Lease Year, Tenant by giving
Landlord one hundred and eighty (180)days notice may terminate Lease by paying
Landlord one hundred and eighty (180) days of Rent monthly. Tenant shall have
option to remain occupying space for three (3) months after written notice in
addition to any Base Rent or Additional Rent.
H. Improvements: The following improvements shall be made by Landlord with
the budget below and Tenant shall pay Landlord the sum of $637.50 per month for
thirty-six (36) months as a contribution to said improvements:
Budget: Partitioning $5,500.00 Restrooms Addition 14,000.00 Dock Ramp
(enlargement) 1,500.00 Rear Storage(enlargement) 2,500.00 Floor Covering
5,000.00 Total $31,500.00 The specific manner in which the Landlord's
improvements shall be completed (including, but not limited to, specific
placement and number of outlets, and specific layout of wiring, lighting, and
ventilation) shall be determined by Landlord's and Tenant's written agreement to
the specific build-out plans for the Premises.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease as of
the day and year first above written.
(LANDLORD):
BY:
(TENANT):
(INDIVIDUALS):
CORPORATION:
BY:
EXHIBIT B. UNIVERSITY HILL PLAZA SIGN CRITERIA
The Tenant agrees to abide by the following Sign Criteria/Graphics
1. Tenant's shall provide and use high quality, creative, innovative signs
placed upon the fascia of the front elevation of the Shopping Center over
Tenant's Store Front Area. Signage and graphics shall not be permitted on outer
face of exterior walls, columns, roof or any other surface other than the
fascia.
2. Tenant shall not be permitted to employ detached signs of any kind, exterior
attraction boards or changeable letter signs; flashing or oscillating signs;
smoke emitting designs; moving lights or variable light intensities; unedged or
uncapped letters; exposed fastenings, cans, ballast boxers or transformers.
3. Signs/graphics shall be individual, dimensional letters in a script or print
style; panel signs shall not be permitted. No portion of the sign shall be
closer than 12" from the bottom of the fascia or closer than 28" from the top of
the fascia. All signs and graphics shall be in the 36" area in-between these
clearances with no individual letter taller than 24" . The major portion or most
prominent portion of the sign shall be back lighted internally from a concealed
source.
4. Signs/graphics are to be individual letters, neon-illuminated with plastic
faces trimmed with 1/2" trim cap. Construction shall be 24 gauge sheet metal
fillers, painted opaque bronze using P.K housings, and attached to the fascia in
a manner to conceal all fittings, wiring, and connections. The face plastic
shall be transparent bronze #2412 over translucent white #7138. All edges, sides
and returns shall be opaque bronze, or such color as Landlord and Tenant agree
upon.
5. All signs, placards, graphics, advertising matter etc., exposed to the
exterior of the building are subject to approval by Landlord. The sizes,
designs, color, materials, specific location, content, type of construction,
installation, method of mounting and illuminating of any design/sign/graphic
shall be subject to the Landlord's approval. Submit 2 sets of shop drawings of
all designs for signs/graphics clearly indicating all of the above information
to Landlord for his written approval prior to fabrication or installation. Any
signs/graphics installed without prior written approval of the Landlord shall be
subject to removal by the Landlord at the expense of the Tenant.
6. These sign criteria are subject to the sole interpretation of the landlord
whose decision shall be final. The Landlord's judgement or the standard of
quality or appropriateness to the Shopping Center operation of any exterior
design or type or exposed advertising shall be final. The Landlord reserves the
right to modify or supplement these sign criteria.
7. Tenant shall heed recommendation(s) of Landlord for construction of all
signage through appropriate, qualified, sign companies. Disclosed companies have
been selected in order to maintain consistency of appearance for entire Shopping
Center.
8. Tenant agrees to have sign in place within sixty (60) days of Commencement
Date.
EXHIBIT C. RULES AND REGULATIONS
The Tenant agrees to abide by the following rules and regulations:
1. The sidewalks, roadways, ans other public portions of the
Shopping Center shall be used by the Tenants for the purpose solely of ingress
and egress to and from the Premises so demised by the Tenants.
2. All waste paper, refuse, and garbage shall be kept by
Tenants in metal trash cans, with covers, to be located at the rear of the
store, and to be removed at thee Tenant's expense.
3. The Tenants shall keep the exterior and interior portions
of the stores, all windows, doors, and all other glass or plate fixtures in a
clean condition. The Tenants shall keep the display windows in the store
illuminated during such hours as the windows throughout a major portion of the
Shopping Center are illuminated.
4. The Tenant shall not keep or permit to be kept in the
premises any flammable or combustible fluid, chemical or explosives.
5. The Tenant shall not hold any auction, fire or bankruptcy
sale on the premises demised.
6. The Tenants shall conduct their business in an orderly
manner in the best interests of the Shopping Center. The Tenants shall not
permit noises from the use of radios, televisions, loudspeakers, talking
machines, phonographs, or other instruments to reach outside the Premises, which
will in the judgement of the Landlord interfere in any way with other tenants in
the Shopping Center.
7. The Tenants shall not burn any trash or garbage of any kind
in or about the building, or on the grounds of the Shopping Center.
8. The plumbing facilities shall be used for the purposes for
which they have been constructed, and no foreign substance of any kind shall be
thrown therein. The expense of any breakage, stoppage, or damage resulting from
a violation of this provision caused by any Tenants, it employees, agents, or
invitees shall be borne by such Tenant.
9. The Landlord reserves the right to amend, or waive any of
the rules or regulations listed above, and further to make such reasonable rules
and regulations as nay from time to time seem necessary or desirable for the
best interests of University Hill Plaza and of the Tenants, and any such other
and further rules and regulations shall be binding upon the Tenants with the
same force and effect as if they had been set forth herein at the time of the
execution of the within Lease.
10. The Landlord reserves the further right to control and
operate the public portions of he Shopping Center in such a manner as the
Landlord deems necessary or desirable for the best interests of the Shopping
Center and the Tenants and for the protection of the buildings and other
property on the Shopping Center. The Landlord, however, shall not be liable to
any Tenant for damages arising out of such control and operation.
EXHIBIT "D" - CONSTRUCTION ADDENDUM
This Construction Addendum dated May 1 1998, by and between
University Hill Plaza, hereinafter referred to as "Landlord" and All
Star Systems Rio Grande, Inc., hereinafter referred to as "Tenant,"
shall be attached to and become a part of that certain Standard
Shopping Center Lease (the "Lease") between the parties dated of even
date herewith for the rental of space in the University Hill Plaza
Shopping Center located at 3800 Mesa, El Paso, Texas.
Landlord agrees to construct, at Landlord's expense, improvements to
the interior of the Premises upon the following terms and conditions:
I. The improvements to be constructed by Landlord consist of the
items described o Schedule I and more particularly described in the
space layout plan attached hereto as Schedule 2. All construction and
design shall be done by Landlord or Landlord's contractor or
architect in substantial accordance with plans and specifications
approved by both Landlord and Tenant. The Landlord's architect or
contractor shall consult with Tenant in its preparation of the plans
and specifications for the Premises.
2. Landlord shall not be obligated to commence construction of such
improvements until Tenant has approved in writing the plans and
specifications for the interior of the Premises. Tenant shall approve
the plans and specifications for the interior of the Premises within
five business days (5) days after such plans and specifications have
been submitted to Tenant. In the event Tenant has not approved the
plans and specifications within this five (5) day period, Landlord
shall have the option to terminate this Lease or continue this Lease
and construct the improvements in substantial accordance with the
plans and specifications, which Tenant will be deemed to have
approved. If this Lease is so terminated, Tenant agrees to pay all
costs and charges incurred by Landlord through the date of
termination, including without limitation, the cost of all materials
and all charges that are billed by Landlord's architects and/or
contractors for work and services incurred in connection with the
improvements to the Premises.
Landlord agrees to expend up to $3 1,500.00 for the
construction of the improvements to the interior of the
Premises; such sum being herein referred to as the
"Allowance". The Allowance represents the total amount of
money that the Landlord will expend toward the development of
the Premises over and above "Building Standard Improvements"
as such term is described in Paragraph 5 of this Construction
Addendum.
4. In the event the cost of constructing such improvements in
accordance with the agreed upon plans and specifications is, in
Landlord's opinion, reasonably likely to exceed the Allowance, Tenant
shall deposit the estimated amount of such excess (herein "Estimated
Additional Costs") with Landlord prior to Landlord's commencement of
the work. Landlord shall apply such money to the costs of completing
the improvements as work progresses. In the event the total actual
cost of constructing such improvements exceeds the Allowance and the
Estimated Additional Costs, Tenant shall pay such excess to Landlord
with in ten (IO) days of demand therefore. In the event the total
actual cost is equal to or greater than the Allowance but less than
the Estimated Additional Costs, Landlord shall refund the unused
portion of the Estimated Additional Costs to Tenant. Tenant shall not
be entitled to any reduction in rent if the actual cost of the
construction is less than the Allowance.
5. As used herein, the term "Building Standard Improvements" shall
mean:
(i) four unfinished walls (including glass front);
concrete slab;
(iii) roof and
(iv) "stub-up" for water, gas, electricity and telephone
6. Notwithstanding anything in Paragraph 2 of the Lease to the
contrary, the Commencement Date of the Lease shall be the date of
substantial completion of the tenant improvements in accordance with
the approved plans and
7. Landlord will use its best efforts to substantially complete
construction of the improvements to the interior of the Premises and
have the Premises available for occupancy by Tenant on or before June
15th, 1998 If Landlord is not able to complete the improvements by said
date, Landlord shall not be liable to Tenant for any damages therefor
and the validity of the Lease shall not be affected.
8. Tenant may enter the Premises for the purpose of installing its
fixtures and equipment provided Tenant coordinates such activities with
Landlord and Landlord's contractors and does not interfere with their
work. Any such entry shall be subject to all of the terms and
conditions of the Lease, including without limitation, the insurance
and indemnity provisions thereof-, provided, however, no rent shall be
payable until the Commencement Date.
9. Tenant's acceptance of occupancy from Landlord shall constitute
acknowledgment by Tenant that the Premises are then in the condition
called for in the Lease and that Landlord has satisfactorily completed
Landlord's work hereunder.
10. Landlord and Tenant agree to execute an addendum to the Lease in
which both parties acknowledge the actual day of the Commencement Date
of the Lease.
11. Capitalized terms used in this Addendum shall have the same
meaning as capitalized terms in the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Addendum as
of the day and year first above written.
AGREED AND ACCEPTED: LANDLORD:
Guarantor:
By: By:
Its: Its:
TENANT:
By:
Its:
EXHIBIT "E" - GUARANTEE
Allstar Systems, Inc., a Delaware corporation ("Guarantor"), in
consideration of the covenants contained in the Lease referenced
hereinafter, and other good and valuable consideration, the receipt
and sufficiency of which is acknowledged by Guarantor, hereby
absolutely and unconditionally guarantees the prompt, complete, and
full and punctual payment, observance, and performance of all the
terms, covenants, and conditions provided to be paid, kept, and
performed by the Tenant in the Lease Agreement ("Lease") dated May
14th, 1998, between University Hills Plaza, a Texas corporation, as
Landlord ("Landlord"), and Allstar Systems Rio Grande, Inc., a Texas
corporation, as Tenant ("Tenant") covering the premises described as
B- I in the University Hill Plaza Shopping Center, and all renewals,
amendments, expansions, and modifications of the Lease. This Guaranty
shall include any liability of Tenant which shall accrue under the
Lease for any period preceding as well as any period following the
term of the Lease.
The obligation of the Guarantor is primary and independent of Tenant's
obligations under the Lease and may be enforced directly against the
Guarantor independently of and without proceeding against the Tenant
or exhausting or pursuing any remedy against Tenant or any other
person or entity.
This instrument may not be changed, modified, discharged, or
terminated orally or in any manner other than by an agreement in
writing signed by Guarantor and the Landlord.
The obligations of Guarantor under this Guaranty shall not be released
or otherwise affected by reason of any sublease, assignment, or other
transfer of the Tenant's interest under the Lease, whether or not
Landlord consents to such sublease, assignment, or other transfer.
Any act of Landlord, or the successors or assigns of Landlord,
consisting of a waiver of any of the terms or conditions of said
Lease, or the giving of any consent to any manner or thin- relating to
said Lease, or the granting of any indulgences or extensions of time
to Tenant, may be done without notice to Guarantor and without
releasing the obligations of Guarantor hereunder.
Guarantor waives any requirement that Landlord mitigate damages under
the Lease, except as required by law
The obligations of Guarantor hereunder shall not be released by
Landlord's receipt, application, or release of security given for the
performance and observance of covenants and conditions in said Lease
contained on Tenant's part to be performed or observed; nor by any
modification of such Lease, but in case of any such modification the
liability of Guarantor, shall be deemed modified in accordance with
the terms of any such modification of the Lease.
Guarantor waives any defense or right arising by reason of any
disability or lack of authority or power of Tenant and shall remain
liable hereunder if Tenant or any other party shall not be liable
under the Lease for such reason.
This Guaranty may not be revoked by Guarantor.
Until all the covenants and conditions in said Lease on Tenant's part
to be performed and observed are fully performed and observed,
Guarantor: (i) shall have no right of subrogation against Tenant by
reason of any payments or acts of performance by the Guarantor, in
compliance with the obligations of the Guarantor hereunder; (ii)
waives any right to enforce any remedy which Guarantor now or
hereafter shall have against Tenant by reason of any one or more
payments or acts of performance in compliance with the obligations of
Guarantor hereunder; and (iii) subordinates any liability or
indebtedness of Tenant now or hereafter held by Guarantor to the
obligations of Tenant to the Landlord under said Lease.
The liability of Guarantor hereunder shall not be released or
otherwise affected by (i) the release or discharge of Tenant in any
insolvency, bankruptcy, reorganization, receivership, or other debtor
relief proceeding involving Tenant (collectively "proceeding for
relief'); (ii) the impairment, limitation, or modification of the
liability of Tenant or the estate of the Tenant in any proceeding for
relief, or of any remedy for the enforcement of Tenant's liability
under the Lease, resulting from the operation of any law relating to
bankruptcy, insolvency, or similar proceeding or other law or from the
decision in any court; (iii) the rejection or disaffirmance of the
Lease in any proceeding for relief, or (iv) the cessation from any
cause whatsoever of the liability of Tenant.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment by Tenant to Landlord under
the Lease is rescinded or must otherwise be returned by Landlord upon
the insolvency, bankruptcy, reorganization, receivership, or other
debtor relief proceeding involving Tenant, all as though such payment
had not been made.
This Guaranty is executed and delivered for the benefit of Landlord
and it successors and assigns, and is and shall be binding upon
Guarantor and its heirs, executors, administrators, successors and
assigns, but Guarantor may not assign its obligations hereunder.
Guarantor acknowledges that Landlord has no duty of good faith to
Guarantor, and acknowledges that no special relationship, such as a
fiduciary or trust relationship, exists between Landlord and
Guarantor. Guarantor agrees that no such duty of good faith shall
arise, and no such special relationship shall exist, unless pursuant
to, and only to the extent set forth in, a written agreement that is
signed by Landlord and Guarantor and that expressly states such duty
of good faith or such special relationship.
This Guaranty shall be governed by and construed in accordance with
the internal laws of the State of Texas excluding any principles of
conflicts of laws. For the purpose solely of litigating any dispute
under this Guaranty, the undersigned submits to the jurisdiction of
the courts of said state
GUARANTOR:
ALL STAR SYSTEMS, INC.
By:
Its: