Standard Industrial Lease Agreement
Cross Creek Business Center Lease Form (4/6/98)
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between CROSS PARK
INVESTORS, LTD., hereinafter referred to as "Landlord", and ADVANCED ENERGY
INDUSTRIES, INC., hereinafter referred to as "Tenant".
1. PREMISES AND TERM. In consideration of the mutual obligations of
Landlord and Tenant set forth herein, Landlord leases to Tenant and Tenant
hereby takes from Landlord, certain leased premises situated within the
County of Travis, State of Texas, and known locally as SUITE 400, CROSS CREEK
BUSINESS CENTER, LOCATED AT 8601 CROSS PARK DRIVE AND CONSISTING OF
APPROXIMATELY 6,812 SQUARE FEET OF RENTABLE AREA AS MEASURED TO THE
BUILDING'S DRIP LINE and as more particularly described on EXHIBIT "A"
attached hereto and incorporated herein by reference (THE "PREMISES"), to
have and to hold, subject to the term, covenants and conditions in this
Lease. The term of this Lease shall commence on the COMMENCEMENT DATE as
hereinafter set forth and shall end on the last day of the month that is
TWELVE (12) months after the Commencement Date.
A. EXISTING BUILDING AND IMPROVEMENTS. The "Commencement Date" shall
be JUNE 1, 1998 or the date Fisher-Rosemount Systems, Inc. has vacated the
Premises and Tenant has begun to occupy the Premises, whichever should occur
earliest. Tenant acknowledges that (i) it has inspected and accepts the
Premises in its "as is" condition, (ii) the buildings and improvements
comprising the same are suitable for the purpose for which the Premises are
leased, (iii) the Premises are in good and satisfactory condition and (iv) no
representations as to the repair of the Premises, nor promises to alter,
remodel or improve the Premises have been made by Landlord (unless otherwise
expressly set forth in this Lease).
2. BASE RENT, SECURITY DEPOSIT AND ESCROW DEPOSITS.
A. BASE RENT. Tenant agrees to pay to Landlord rent for the Premises
in advance, without demand, deduction or set off, at the rate of:
MONTHS 1 THROUGH 12: FOUR THOUSAND FOUR HUNDRED TWENTY-SEVEN DOLLARS
AND 80/XX ($4,427.80) PER MONTH,
during the term hereof. One monthly installment of Base Rentt and other
monthly charges set forth in Paragraph 2C below, shall be due and payable on
the date hereof, and a like monthly installment shall be due and payable on
or before the first day of each calendar month succeeding the Commencement
Date, except that all payments due thereunder for any fractional calendar
month shall be prorated.
B. SECURITY DEPOSIT. In addition, Tenant agrees to deposit with
Landlord on the date hereof the sum of FIVE THOUSAND SEVEN HUNDRED AND NINETY
DOLLARS AND 20/XX ($5,790.20) which shall be held by Landlord, without
obligation for interest, as security for the performance of Tenant's
obligations under this Lease (the "Security Deposit"), it being expressly
understood and agreed that the Security Deposit is not an advance rental
deposit or a measure of Landlord's damages in case of Tenant's default. Upon
occurrence of an Event of Default, Landlord may use all or part of the
Security Deposit to pay past due rent or other payments due Landlord under
this Lease, or the cost of any other damage, injury, expense or liability
caused by such Event of Default, without prejudice to any other remedy
provided herein or provided by law. On demand, Tenant shall pay Landlord the
amount that will restore the Security Deposit to its original amount. The
Security Deposit shall be deemed the property of Tenant and any remaining
balance of the Security Deposit shall be returned by Landlord to Tenant when
all of Tenant's present and future obligations under this Lease have been
fulfilled.
C. ESCROW DEPOSITS. Without limiting in any way Tenant's other
obligations under this Lease, Tenant agrees to pay to Landlord its
Proportionate Share (as defined in this Paragraph 2C below) of (i) Taxes *
payable by Landlord pursuant to Paragraph 3A below, (ii) the cost of
utilities payable by Landlord pursuant to Paragraph 8 below, (iii) Landlord's
cost of maintaining insurance pursuant to Paragraph 9A below and (iv)
Landlord's cost of maintaining any common area charges payable by Tenant in
accordance with Paragraph 4B below (collectively, the "Tenant Costs").
During each month of the term of this Lease, on the same day that rent is due
hereunder, Tenant shall deposit in escrow with Landlord an amount equal to
1/12 of the estimated annual amount of Tenant's Proportionate Share of the
Tenant Costs. Tenant authorizes Landlord to use the funds deposited with
Landlord under this Paragraph 2C to pay such Tenant Costs. The initial
monthly escrow payments are based upon the estimated amounts for the year in
which the Commencement Date occurs, and shall be increased or decreased
annually to reflect the projected actual amount of all Tenant Costs. If the
Tenant's total escrow deposits for any calendar year are less than Tenant's
actual Proportionate Share of the Tenant Costs for such calendar year,
Tenant shall pay the difference to Landlord within thirty (30) days after
demand. If the total escrow deposits of Tenant for any calendar year are
more than Tenant's actual Proportionate Share of the Tenant Costs for such
calendar year, Landlord shall retain such excess and credit it against
Tenant's escrow deposits next maturing after such determination. In the
event the Premises constitute a portion of a multiple occupancy building (the
"Building"), Tenant's "Proportionate Share" with respect to the Building, as
used in this Lease, shall mean a fraction, the numerator of which is the net
rentable area contained in the Premises and the denominator of which is the
net rentable area contained in the entire Building. In the event the
Premises or the Building is part of a project or business park owned, managed
or leased by Landlord, or an affiliate of Landlord (the "Project"), Tenant's
"Proportionate Share" of the Project, as used in this Lease shall mean a
fraction, the numerator of which is the net rentable area contained in the
Premises and the denominator of which is the net rentable area contained in
all of the buildings (including the Building) within the Project. For the
purposes of this Lease, Tenant's proportionate share shall be defined as
ELEVEN AND TWO TENTHS PERCENT (11.2%).
3. TAXES.
A. REAL PROPERTY TAXES. Subject to reimbursement under Paragraph 2C
herein, Landlord agrees to pay all Taxes* that accrue against the Premises,
the Building and /or the land of which the Premises or the Building are a
part. If at any time during the term of this Lease, there shall be levied,
assessed or imposed on Landlord a capital levy or other tax directly on the
rents received therefrom and /or the land and improvements of which the
Premises are a part, then all such taxes, assessments, levies or charges, or
the part thereof so measured or based, shall be deemed to be included within
the term "Taxes" for the purpose hereof. The Landlord shall have the right
to employ a tax consulting firm to attempt to assure a fair tax burden on the
real property within the applicable taxing jurisdiction. Tenant agrees to
pay its Proportionate Share of the cost of such consultant.
B. PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes levied
or assessed against any personal property or fixtures placed in or on the
Premises. If any such taxes are levied or assessed against Landlord or
Landlord's property (i) Landlord pays the same or (ii) the assessed value of
Landlord's property is increased by inclusion of such personal property and
fixtures and Landlord pays the increased taxes, then Tenant shall pay to
Landlord, upon demand, the amount of such taxes.
4. LANDLORD'S REPAIRS AND MAINTENANCE.
A. STRUCTURAL REPAIRS. Landlord, at its own cost and expense, shall
maintain the roof, foundation and the structural soundness of the exterior
walls of the Building in good repair, reasonable wear and tear excluded. The
term "walls" as used herein shall not include windows, glass, or plate glass,
any doors, special store fronts or office entries, and the term "foundation"
as used herein shall not include loading docks. Tenant shall immediately
give Landlord written notice of defect or need for repairs, after which
Landlord shall have thirty (30) days to commence to effect such repairs or
cure such defect. In the event a defect occurs that seriously jeopardizes the
safety of persons occupying the Premises or threatens equipment or machinery
owned by Tenant within the Premises, and Landlord has failed to commence the
repairs for such defect within the thirty (30) day period outlined above,
Tenant shall be permitted to initiate the repair and Landlord will be
obligated to reimburse Tenant for the actual cost of the repair.
B. TENANT'S SHARE OF COMMON AREA CHARGES. Tenant agrees to pay its
Proportionate Share of the cost of (i) maintenance and/or landscaping
(including both maintenance and replacement of landscaping) of any property
that is a part of the Building and/or the Project; and (ii) operating,
maintaining and repairing any property, facilities or services (including
without limitation utilities and insurance therefor) provided for the
*For purposes of this Lease, "Taxes" means all taxes, assessments and
governmental charges (excluding any federal and state income taxes, franchise
taxes, profit taxes and lease taxes, so long as such federal and state income
taxes, franchise taxes, profit taxes or lease taxes are not assessed in lieu
of some or all of the customary ad valorem taxes being assessed against the
Project as of the date of this Lease).
C. REASSESSMENTS. At the reasonable request of Tenant, Landlord shall
vigorously challenge any increases in Taxes, arising from a reassessment of
Landlord's property or otherwise.
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use or benefit of Tenant or the common use or benefit of Tenant and other
lessees of the Project or the Building; and (iii) the reasonable cost of
property management and supervision which shall be at rates customary of the
property type and market conditions.
Landlord reserves the right to perform, in whole or in part and without
notice to Tenant, maintenance, repairs and replacements to the paving, common
area landscape replacement and maintenance, exterior painting, common sewage
line plumbing and any other items that are provided for the use or benefit of
Tenant or the common use or benefit of Tenant and other lessees of the
Project or the Building; in which event, Tenant shall be liable for its
Proportionate Share of the cost and expense of such repair, replacement,
maintenance and other such items.
5. TENANT'S REPAIRS.
A. MAINTENANCE OF PREMISES AND APPURTENANCES. Tenant at its own
cost and expense, shall (i) maintain all parts of the Premises and promptly
make all necessary repairs and replacements to the Premises (except those for
which Landlord is expressly responsible hereunder), and (ii) keep the parking
areas, driveways and alleys surrounding the Premises in a clean and sanitary
condition. Tenant's obligation to maintain, repair and make replacements to
the Premises shall cover, but not be limited to, pest control (including
termites), trash removal and the maintenance repair and replacement of all
HVAC, electrical, plumbing, sprinkler and other mechanical systems. For the
purposes of this Lease, Landlord shall assign all warranties received from
the general contractor who constructs the Tenant Improvements within the
Premises and Tenant shall look to the general contractor for warranty on all
repairs and replacements required within the Premises.
B. PARKING. Tenant and its employees, customers and licensees shall
have the right to use only its Proportionate share of any parking areas that
have been designated for such use by Landlord in writing, subject to (i) all
rules and regulations promulgated by Landlord; and (ii) rights of ingress and
egress of other lessees. Landlord shall not be responsible for enforcing
Tenant's parking rights against any third parties, and Tenant expressly does
not have the right to tow or obstruct improperly parked vehicles. Tenant
agrees not to park on any public streets or private roadways adjacent to or
in the vicinity of the Premises. For the purposes of this Lease, Tenant
shall be allotted twenty-five (25) parking spaces.
C. SYSTEM MAINTENANCE. Tenant at its own cost and expense, shall enter
into a regularly scheduled preventative maintenance/service contract with a
maintenance contractor approved by Landlord for servicing all hot water,
heating and air conditioning systems and equipment within the Premises. The
service contract must include all services suggested by the equipment
manufacturer in its operations/maintenance manual and must become effective
within thirty (30) days of the date Tenant takes possession of the Premises.
In the event of a failure to the heating and air conditioning system, Tenant
shall be obligated to pay the first two thousand dollars ($2,000.00) towards
any repair or replacement (per occurrence) of the heating and air
conditioning system. In the event the repair or replacement cost (per
occurrence) exceeds two thousand dollars ($2,000.00), Landlord and Tenant
shall share the cost equally for the repair or replacement.
6. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. Tenant, at its
own cost and expense, may erect such shelves, bins, machinery and trade
fixtures as it desires, provided that (a) such items do not alter the basic
character of the Premises or the Building; (b) such items do not overload or
damage same; (c) such items may be removed without injury to the Premises;
and (d) the construction, erection or installation thereof complies with all
applicable governmental laws ordinances, regulations and with Landlord's
specifications and requirements. Tenant shall be responsible for compliance
with The American With Disabilities Act of 1990. Without implying any
consent of Landlord thereto, all alterations, additions, improvements and
partitions erected by Tenant shall be remain the property of Tenant during
the term of this Lease. All shelves, bins machinery and trade fixtures
installed by Tenant shall be removed on or before the earlier to occur of the
day of termination or expiration of this Lease or vacating the Premises, at
which time Tenant shall restore the Premises to their original condition,
normal wear and tear excepted. Alterations, installations, removals and
restorations shall be performed in a good and workmanlike manner so as not to
damage or alter the primary structure or structural qualities of the Building
or other improvements situated on the Premises or of which the Premises are a
part.
7. SIGNS. Any signage Tenant desires for the Premises shall be subject to
Landlord's written approval, which shall not be unreasonably withheld or
delayed and shall be submitted to Landlord prior to the Commencement Date of
this Lease. Tenant shall repair and/or replace the Building facia surface to
which its signs are attached upon Tenant's vacation of the Premises or the
removal or alteration of its signage. Tenant shall not, without Landlord'
prior written consent, (i) make any changes to the exterior of the Premises,
(ii) install any exterior lights, decorations, balloons, flags, pennants,
banners or painting, or (iii) erect or install any signs, windows or door
lettering, placards, decorations or advertising media of any type which can
be viewed from the exterior of the Premises. All signs, decorations,
advertising media, blinds, draperies and other window treatment or bars or
other security installations visible from outside the Premises shall conform
in all respects to the criteria established by Landlord or shall be otherwise
subject to Landlord's prior written consent. For the purposes of this Lease,
Tenant shall be permitted to use its company logo and colors so long as the
design, installation and location of the sign is consistent with the
requirements outlined in Exhibit "E", Sign Criteria.
8. UTILITIES. Landlord agrees to provide normal water and electricity
service to the Premises. Tenant shall pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler charges and other utilities and services
used on or at the Premises, together with any taxes, penalties, surcharges or
the like pertaining to the Tenant's use of the Premises, and any maintenance
charges for utilities. Landlord shall have the right to cause any of said
services to be separately metered to Tenant, at Tenant's expense. Tenant
shall pay its pro rata share, as reasonably determined by Landlord, of all
charges for jointly metered utilities. Unless resulting from Landlord's
negligence or willful misconduct, Landlord shall not be liable for any
interruption or failure of utility service on the Premises and Tenant shall
have no rights or claims as a result of any such failure. In the event water
is not separately metered to Tenant, Tenant agrees that it will not use water
and sewer capacity for uses other than normal domestic restroom and kitchen
usage and Tenant further agrees to reimburse Landlord for the entire amount
of common water and sewer costs as additional rental if, in fact, Tenant uses
water or sewer capacity for uses other than normal domestic restroom and
kitchen uses without first obtaining Landlord's written permission,
including, but not limited to, the cost for acquiring additional sewer
capacity to service Tenant's excess sewer use. Furthermore, Tenant agrees in
such event to install at its own expense a submeter to determine Tenant's
usage.
9. INSURANCE.
A. LANDLORD'S INSURANCE. Subject to reimbursement under Paragraph 2C
herein, Landlord shall maintain insurance covering the Building in an amount
not less than eighty percent (80%) of the "replacement cost" thereof,
insuring against the perils of fire, lightning, flood, tornado, hail,
extended coverage, vandalism and malicious mischief.
B. TENANT'S INSURANCE. Tenant, at its own expense, shall maintain
during the term of this Lease a policy or policies of worker's compensation
and comprehensive general liability insurance, including personal injury and
property damage, with contractual liability endorsement, in the amount of
Five Hundred Thousand Dollars ($500,000.00) for property damage and One
Million dollars ($1,000,000.00) per occurrence and Two Million Dollars
($2,000,000.00) in the aggregate for personal injuries or deaths of persons
occurring in or about the Premises. Tenant, at its own expense, also shall
maintain during the term of this Lease, fire and extended coverage insurance
covering the replacement cost of (i) all alterations, additions, partitions
and improvements installed or placed on the Premises by Tenant or by Landlord
on behalf of Tenant and (ii) all of Tenant's personal property contained
within the Premises. Said policies shall (i) name Landlord as an additional
insured and insure Landlord's contingent liability under or in connection
with this Lease (except for the worker's compensation policy, which instead
shall include waiver of subrogation endorsement in favor of Landlord) (ii) be
insured by an insurance company which is acceptable to Landlord, and (iii)
provide that said insurance shall not be canceled unless thirty (30) days
prior written notice has been given to Landlord. Said policy or policies or
certificates thereof shall be delivered to Landlord by Tenant on or before
the Commencement Date and upon each renewal of said insurance.
C. PROHIBITED USES. Tenant will not permit the Premises to be used for
any purpose or in any manner that would (i) void the insurance thereon, (ii)
increase the insurance risk or cost thereof, or (iii) cause the disallowance
of any sprinkler credits; including without limitation, use of the Premises
for the receipt, storage or handling of any product, material or merchandise
that is explosive or highly inflammable. If any increase in the cost of any
insurance on the Premises or the Building is caused by Tenant's use of the
Premises, or because Tenant vacates the Premises, then Tenant shall pay the
amount of such increase to Landlord within thirty (30) days of written demand
therefor.
10. FIRE AND CASUALTY DAMAGE.
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A. TOTAL OR SUBSTANTIAL DAMAGE AND DESTRUCTION. If the Premises or
the Building should be damaged or destroyed by fire or other peril, Tenant
shall immediately give written notice to Landlord of such damage or
destruction. If the Premises or the Building should be totally destroyed by
any peril covered by the insurance to be provided by Landlord under Paragraph
9A above, or if they should be so damaged thereby that, in Landlord's
estimation, rebuilding or repairs cannot be completed within one hundred and
fifty (150) days after the date of such damage or after such completion there
is not enough time remaining under the terms of this Lease to fully amortize
such rebuilding or repairs, then Landlord shall so notify Tenant in writing
and this Lease shall terminate and the rent shall be abated during the
unexpired portion of this Lease, effective upon the date of the occurrence of
such damage.
B. PARTIAL DAMAGE OR DESTRUCTION. If the Premises or the Building
should be damaged by any perils covered by the insurance to be provided by
Landlord under Paragraph 9A above and, in Landlord's estimation, rebuilding
or repairs can be substantially completed within one hundred fifty (150) days
after the date of such damage, then this Lease shall not terminate and
Landlord shall restore the Premises to its previous condition, except that
Landlord shall not be required to rebuild, repair or replace any part of the
partitions, fixtures, additions and other improvements that may have been
constructed, erected or installed in or about the Premises for the benefit of
or by or for Tenant. In the event of partial damage to the Premises, rent
shall abate for the period of reconstruction for the portion of the Premises
that cannot be occupied due to the casualty.
C. LIENHOLDERS RIGHTS IN PROCEEDS. Notwithstanding anything herein to
the contrary, in the event the holder of any indebtedness secured by a
mortgagee or deed of trust covering the Premises requires that the insurance
proceeds be applied to such indebtedness, then Landlord shall have the right
to terminate this Lease by delivering written notice of termination to Tenant
within fifteen (15) days after such requirement is made known to Landlord by
any such holder, whereupon all rights and obligations hereunder shall cease
and terminate.
D. WAIVER OF SUBROGATION. Notwithstanding anything in this Lease to
the contrary, Landlord and Tenant hereby waive and release each other of and
from any and all rights of recovery, claims, actions or causes of action
against each other, or their respective agents, officers and employees, for
any loss or damage that may occur to the Premises, improvements to the
Building or personal property (Building contents) within the Building and/or
Premises, for any reason regardless of cause or origin. Each party to this
Lease agrees immediately after execution of this Lease to give written
notice of the terms of the mutual waivers contained in this subparagraph to
each insurance company that has issued to such party policies of fire and
extended coverage insurance and, if necessary, to have the insurance policies
properly endorsed to provide that the carriers of such policies waive all
rights of recovery under subrogation or otherwise against the other party.
11. LIABILITY AND INDEMNIFICATION. Except for any claims, rights of
recovery and causes of action that Landlord has released, Tenant shall hold
Landlord harmless from and defend Landlord against any and all claims or
liability for any injury or damage (i) to any person or property whatsoever
occurring in, on or about the Premises or any part thereof, the Building
and/or about the Premises or any part thereof, the Building and/or common
areas, the use of which Tenant may have in accordance with this Lease, if
(and only if) such injury or damage shall be caused in whole or in part by
the act, gross neglect, fault or willful omission of any duty by Tenant, its
agents, servant, employees or invitees, (ii) arising from the conduct or
management of any work done by the Tenant in or about the Premises, (iii)
arising from transactions of the Tenant, and (iv) all costs, counsel fees,
expenses and liabilities incurred in connection with any such claim or action
or proceeding brought thereon. The provisions of this Paragraph 11 shall
survive the expiration or termination of this Lease. Landlord shall not be
liable in any event for personal injury or loss of Tenant's property caused
by fire, flood, water leaks, rain, hail, ice, snow, smoke, lightning, wind,
explosion, interruption of utilities, or other occurrences unless resulting
from Landlord's acts. Landlord strongly recommends that Tenant secure
Tenant's own insurance, in excess of the amounts required elsewhere in this
Lease, to protect against the above occurrences if Tenant desires additional
coverage for such risks. Tenant shall give prompt notice to Landlord of any
significant accidents involving injury to persons or property. Furthermore,
Landlord shall not be responsible for lost or stolen personal property,
equipment, money or jewelry from the Premises or from the public areas of the
Building or the Project, or for any damages or losses caused by theft,
burglary, assault, vandalism, or other crimes. Landlord strongly recommends
that Tenant provide its own security systems and services and secure Tenant's
own insurance in excess of the amounts required elsewhere in this Lease, to
protect against the above occurrences if Tenant desires additional protection
or coverage for such risks. Tenant shall give Landlord prompt notice of any
criminal or suspicious conduct within or about the Premises, the Building or
the Project, and/or any personal injury or property damage caused thereby.
Landlord may, but is not obligated to, enter into agreements with third
parties for the provision of any courtesy patrols or similar services or fire
protective systems and equipment and, to the extent same is provided in
Landlord's sole discretion, Landlord shall not be liable to Tenant for any
damages, costs or expenses which occur for any reason in the event any such
system or equipment is not properly installed, monitored or maintained or any
such services are not properly provided, unless resulting from Landlord's
acts. Landlord shall use reasonable diligence in the maintenance of existing
lighting, if any, in the parking areas servicing the Premises, and Landlord
shall not be responsible for additional lighting or any security measures in
the Project, the Premises or other parking areas.
12. USE. The Premises shall be used only for the purpose of manufacturing,
sales, research and development, telephone support, design, receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Tenant and for such other lawful
purposes as may be directly incidental thereto. Outside storage, including
without limitation storage of trucks and other vehicles, is prohibited
without Landlord's prior written consent. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises, and shall promptly comply with all governmental orders and
directives for the correction, prevention and abatement of nuisances in or
upon or connected with the Premises, all at Tenant's sole expense. Tenant
shall not permit any objectionable or unpleasant odors, smoke, dust, gas,
noise or vibrations to emanate from the Premises, nor take any other action
that would constitute a nuisance or would disturb, unreasonably interfere
with or endanger Landlord or any other lessees of the Building or the Project.
13. HAZARDOUS WASTE. The term "Hazardous Substances," as used in this
Lease, shall mean pollutants, contaminants, toxic or hazardous wastes,
radioactive materials or any other substances, the use and/or the removal of
which is required or the use of which is restricted, prohibited or penalized
by any "Environmental Law," which term shall mean any federal, state or local
statute, ordinance, regulation or other law of a governmental or
quasi-governmental authority relating to pollution or protection of the
environment or the regulation of the storage or handling of Hazardous
Substances. Limited to its actions only, Tenant hereby agrees that: (i) no
activity will be conducted on the Premises that will produce any Hazardous
Substance, except for such activities that are part of the ordinary course of
Tenant's business activities (the "Permitted Activities"), provided said
Permitted Activities are conducted in accordance with all Environmental Laws
and have been approved in advance in writing by Landlord, which approval
shall not be unreasonably withheld or delayed and, in connection therewith,
Tenant shall be responsible for obtaining any required permits or
authorizations and paying any fees and providing any testing required by any
governmental agency; (ii) the Premises will not be used in any manner for the
storage of any Hazardous Substances, except for the temporary storage of such
materials that are used in the ordinary course of Tenant's business (the
"Permitted Materials"), provided such Permitted Materials are properly stored
in a manner and location meeting all Environmental Laws and have been
approved in advance in writing by Landlord, which such approval shall not be
unreasonably withheld or delayed, and, in connection therewith, Tenant shall
be responsible for obtaining any required permits or authorizations and
paying any fees and providing any testing required by any governmental
agency; (iii) no portion of the Premises will be used as a landfill or a
dump; (iv) Tenant will not install any underground tanks of any type; (v)
Tenant will not allow any surface or subsurface conditions to exist or come
into existence that constitute, or with the passage of time may constitute, a
public or private nuisance; (vi) Tenant will not permit any Hazardous
Substances to be brought onto the Premises, except for the Permitted
Materials, and if so brought or found located thereon, the same shall be
immediately removed, with proper disposal, and all required clean-up
procedures shall be diligently undertaken by Tenant at its sole cost pursuant
to all Environmental Laws. Upon prior notice during normal business hours,
Landlord and Landlord's representatives shall have the right but not the
obligation to enter the Premises for the purpose of inspecting the storage,
use and disposal of any Permitted Materials to ensure compliance with all
Environmental Laws. Should it be determined, in Landlord's sole opinion,
that any Permitted Materials are being improperly stored, used or disposed
of, then Tenant shall immediately take such corrective action as requested by
Landlord. Should Tenant fail to take such corrective action within
twenty-four (24) hours, Landlord shall have the right to perform such work
and Tenant shall reimburse Landlord, on demand, for any and all costs
associated with said work. If at any time during or after the term of this
Lease, the Premises is found to be contaminated with Hazardous Materials,
Tenant shall diligently institute proper and thorough clean-up procedures, at
Tenant's sole cost. TENANT AGREES TO INDEMNIFY AND HOLD LANDLORD HARMLESS
FROM ALL CLAIMS, DEMANDS, ACTIONS, LIABILITIES, COSTS, EXPENSES, DAMAGES,
PENALTIES AND OBLIGATIONS OF ANY NATURE ARISING FROM OR AS A RESULT OF ANY
CONTAMINATION OF THE PREMISES WITH HAZARDOUS SUBSTANCES BY TENANT, OR
OTHERWISE ARISING FROM THE USE OF THE PREMISES BY TENANT. THE FOREGOING
INDEMNIFICATION AND THE RESPONSIBILITIES OF TENANT SHALL SURVIVE THE
TERMINATION OR EXPIRATION OF THIS LEASE.
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14. INSPECTION. Landlord's agents and representatives, upon notice to
Tenant, shall have the right to enter the Premises at any reasonable time
during business hours (or at any time in case of emergency) (i) to inspect
the Premises; (ii) to make such repairs as may be required or permitted
pursuant to this Lease; and/or (iii) during the last six (6) months of the
Lease term, for the purpose of showing the Premises. In addition, Landlord
shall have the right to erect a suitable sign on the Premises stating the
Premises are available for Lease. Tenant shall notify Landlord in writing at
least thirty (30) days prior to vacating the Premises and shall arrange to
meet with Landlord for a joint inspection of the Premises prior to vacating.
If Tenant fails to give such notice or to arrange for such inspection, then
Landlord's inspection of the Premises shall be deemed correct for the purpose
of determining Tenant's responsibility for repairs and restoration of the
Premises.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not have the right to sublet,
assign or otherwise transfer or encumber this Lease, or any interest therein,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Any attempted assignment, subletting,
transfer of encumbrance by Tenant in violation of the terms and covenants of
this paragraph shall be void. Any assignee, sublessee or transferee of
Tenant's interest in this Lease (all such assignees, sublessees and
transferees being hereinafter referred to as "Transferees"), by assuming
Tenant's obligations hereunder, shall assume liability to Landlord for all
amounts paid to persons other than Landlord by such Transferees to which
Landlord is entitled or otherwise in contravention of this Paragraph 15. No
assignment, subletting or other transfer, whether or not consented to by
Landlord or permitted hereunder, shall relieve Tenant of its liability under
this Lease. If an Event of Default occurs while the Premises or any part
thereof are assigned or sublet, then Landlord, in addition to any other
remedies herein provided or provided by law, may collect directly from such
Transferee all rents payable to the Tenant and apply such rent against any
sums due Landlord hereunder. No such collection shall be construed to
constitute a novation or a release of Tenant from the further performance of
Tenant's obligations hereunder. If Landlord consents to any subletting or
assignment by Tenant as hereinabove provided and any category of rent
subsequently received by Tenant under any such sublease is in excess of the
same category of rent payable under this Lease, or any additional
consideration is paid to Tenant by the assignee under any such assignment,
then Landlord may, at its option, declare such excess rents under any
sublease or such additional consideration for any assignment to be due and
payable by Tenant to Landlord as additional rent hereunder. The following
shall additionally constitute an assignment of this Lease by Tenant for the
purposes of this Paragraph 15.: (i) if Tenant is a corporation, any merger,
consolidation, dissolution or liquidation, or any change in ownership or
power to vote of thirty percent (30%) or more of Tenant's outstanding voting
stock; (ii) if Tenant is a partnership, joint venture or other entity, any
liquidation, dissolution or transfer of ownership of any interests totaling
thirty percent (30%) or more of the total interests in such entity; (iii)
the sale, transfer, exchange, liquidation or other distribution of more than
thirty percent (30%) of Tenant's assets, other than this Lease; or (iv) the
mortgage, pledge, hypothecation or other encumbrance of or grant of a
security interest by Tenant in this Lease, or of any of Tenant's rights
hereunder. For the purposes of this Lease, the merger or sale of a division
owned by Tenant shall not constitute an assignment under this Lease.
16. CONDEMNATION. If more than eighty percent (80%) of the Premises or the
required parking and access related thereto, are taken for any public or
quasi-public use under governmental law, ordinance or regulation, or by right
of eminent domain or private purchase in lieu thereof, and the taking
prevents or materially interferes with the use of the remainder of the
Premises for the purpose for which they were leased to Tenant, then this
Lease shall terminate and the rent shall be abated during the unexpired
portion of this Lease, effective on the date of such taking. If less than
eighty percent (80%) of the Premises are taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or
by right of eminent domain or private purchase in lieu thereof, or if the
taking does not prevent or materially interfere with the use of the
remainder of the Premises, parking, access and loading for the purpose for
which they were leased to Tenant, then this Lease shall not terminate,
but the rent payable hereunder during the unexpired portion of this Lease
shall be reduced to such extent as may be fair and reasonable under all
of the circumstances. All compensation awarded in connection with or as a
result of any of the foregoing proceedings shall be the property of
Landlord, and Tenant hereby assigns any interest in any such award to
Landlord: provided, however, Landlord shall have no interest in any award
made to Tenant for loss of business or goodwill or for the taking of Tenant's
trade fixtures and personal property, if a separate award for such items
is made to Tenant.
17. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Tenant shall immediately deliver possession of the Premises to
Landlord with all repairs and maintenance required herein to be performed by
Tenant completed. If, for any reason, Tenant retains possession of the
Premises after the expiration or termination of this Lease, unless the
parties hereto otherwise agree in writing, such possession shall be deemed
to be a tenancy at will only, and all other terms and provisions of this
Lease shall be applicable during such period, except that Tenant shall pay
Landlord from time to time, upon demand, as rental for the period of such
possession, an amount equal to one and one-half times the rent in effect on
the date of such termination of this Lease, computed on a daily basis for
each day of such period. No holding over by Tenant, whether with or without
consent of Landlord, shall operate to extend this Lease except as otherwise
expressly provided. The preceding provisions of this Paragraph 17 shall not
be construed as consent for Tenant to retain possession of the Premises in
the absence of written consent thereto by Landlord.
18. QUIET ENJOYMENT. Landlord represents that it has the authority to enter
into this Lease and that, so long as Tenant pays all amounts due hereunder
and performs all other covenants and agreements herein set forth, Tenant
shall peaceably and quietly have, hold and enjoy the Premises for the term
hereof without hindrance or molestation from Landlord, subject to the terms
and provisions of this Lease.
19. EVENTS OF DEFAULT. The following events (herein individually referred to
as an "Event of Default") each shall be deemed to be default in or breach of
Tenant's obligations under this Lease:
A. Tenant shall fail to pay any installment of the rent herein
reserved when due, or any other payment or reimbursement to Landlord required
herein when due, and such failure shall continue for a period of ten (10)
days from the date Landlord provided written notice that such payment was due.
C. Tenant shall fail to discharge any lien placed upon the Premises in
violation of paragraph 22 hereof within twenty (20) days after any such lien
or encumbrance is filed against the Premises.
D. Tenant shall default in the performance of any of its obligations
under any other lease to Tenant from Landlord, or from any person or entity
affiliated with or related to Landlord, and same shall remain uncured after
the lapsing of any applicable cure period provide for under such other lease.
E. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than those listed above in this paragraph), and shall not
cure such failure within thirty (30) days after written notice thereof from
Landlord.
20. REMEDIES. Upon each occurrence an Event of Default, Landlord shall have
the option to pursue anyone or more of the following remedies without any
notice or demand:
(a) Terminate this Lease;
(b) Enter upon and take possession of the Premises without terminating
this Lease;
(c) Make such payments and/or take such action and pay and/or perform
whatever Tenant is obligated to pay or perform under the terms of this Lease,
and Tenant agrees that Landlord shall not be liable for any damages resulting to
Tenant from such action; and/or
(d) Alter all locks and other security devices at the Premises, with or
without terminating this Lease, and pursue, at Landlord's option, one or more
remedies pursuant to this Lease, and Tenant hereby expressly agrees that
Landlord shall not be required to provide to Tenant the new key to the
Premises, regardless of hour, including Tenant's regular business hours;
4 Landlord's Initials _____
Tenant's Initials _____
and in any such event Tenant shall immediately vacate the Premises, and if
Tenant fails so to do, Landlord, without waiving any other remedy it may
have, may enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying such Premises or any part
thereof, without being liable for prosecution or any claim of damages
therefor. In the event of any violation of Section 93.008 of the Texas
Property Code by Landlord or by any agent or employee of Landlord, Tenant
hereby expressly waives any and all rights Tenant may have under Paragraph
(g) of such Section 93.008.
A. DAMAGES UPON TERMINATION. If Landlord terminates this Lease, at
Landlord's option, Tenant shall be liable for and shall pay to Landlord the
sum of all rental and other payments owed to Landlord hereunder accrued to
the date of such termination, plus, as liquidated damages, an amount equal to
(1) the present value of the total rental and other payments owed hereunder
for the remaining portion of the Lease term, calculated as if such term
expired on the date set forth in Paragraph 1, less, (2) the present value of
the then fair market rental for the Premises for such period, provided that,
because of the difficulty of ascertaining such value and in order to achieve
a reasonable estimate of liquidated damages hereunder, Landlord and Tenant
stipulate and agree, for the purposes hereof, that such fair market rental
shall in no event exceed seventy-five percent (75%) of the rental amount for
such period set forth in Paragraph 2 above.
B. DAMAGES UPON REPOSSESSION. If Landlord repossesses the Premises
without terminating this Lease, Tenant, at Landlord's option, shall be liable
for and shall pay Landlord on demand all rental and other payments owed to
Landlord hereunder, accrued to the date of such repossession, plus all
amounts required to be paid by Tenant to Landlord until the date of
expiration of the term as stated in Paragraph 1, diminished by all amounts
actually received by Landlord through reletting the Premises during such
remaining term (but only to the extent of the rent herein reserved). Actions
to collect amounts due by Tenant to Landlord under this paragraph may be
brought from time to time, on one or more occasions, without the necessity of
Landlord's waiting until expiration of the Lease term.
C. COSTS OF RELETTING, REMOVING, REPAIRS AND ENFORCEMENT. Upon an
Event of Default, in addition to any sum provided to be paid under this
Paragraph 20, Tenant also shall be liable for and shall pay to Landlord (i)
brokers' fees and all other costs and expenses incurred by Landlord in
connection with reletting the whole or any part of the Premises; (ii) the
costs of removing, storing or disposing Tenant's or any other occupant's
property; (iii) the costs of repairing, altering, remodeling or otherwise
putting the Premises into condition acceptable to a new Tenant or Tenants:
(iv) any and all actual costs and expenses incurred by Landlord in effecting
compliance with Tenant's obligations under this Lease; and (v) all reasonable
expenses incurred by Landlord in enforcing or defending Landlord's rights
and/or remedies hereunder, including without limitation, all reasonable
attorneys' fees and all court costs incurred in connection with such
enforcement or defense.
D. LATE CHARGE. In the event Tenant fails to make any payment due
hereunder within five (5) days after such payment is due, including without
limitation any rental or escrow payment, in order to help defray the
additional cost to Landlord for processing such late payments and not as
interest, Tenant shall pay to Landlord on demand a late charge in an amount
equal to five percent (5%) of such payment. The provision for such late
charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law, and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner.
E. INTEREST ON PAST DUE AMOUNTS. If Tenant fails to pay any sum which
at any time becomes due to Landlord under any provision of this Lease as and
when the same becomes due hereunder, and such failure continues for ten (10)
days after the due date for such payment, then Tenant shall pay to Landlord
interest on such overdue amounts from the date due until paid at an annual
rate which equals the lesser of (i) eighteen percent (18%) or (ii) the
highest rate then permitted by law.
F. NO IMPLIED ACCEPTANCES OR WAIVERS. Exercise by Landlord of any one
or more remedies hereunder granted or otherwise available shall not be deemed
to be an acceptance by Landlord of Tenant's surrender of the Premises, it
being understood that such surrender can be effected only by the written
agreement of Landlord. Tenant and Landlord further agree that forbearance by
Landlord to enforce any of its rights under this Lease or at law or in equity
shall not be a waiver of Landlord's right to enforce any one or more of its
rights, including any right previously forborne, in connection with any
existing or subsequent default. No re-entry or taking possession of the
Premises by Landlord shall be construed as an election on its part to
terminate this Lease, unless a written notice of such intention is given to
Tenant, and, notwithstanding any such reletting or re-entry or taking
possession of the Premises, Landlord may at any time thereafter elect to
terminate this Lease for a previous default. Pursuit of any remedies
hereunder shall not preclude the pursuit of any other remedy herein
provided or any other remedies provided by law, nor shall pursuit
of any remedy herein provided constitute a forfeiture or waiver of any
rent due to Landlord hereunder or of any damages occurring to Landlord
by reason of the violation of any of the terms, provisions and covenants
contained in this Lease. Landlord's acceptance of any rent following
either an Event of Default hereunder shall not be construed as Landlord's
waiver of such Event of Default. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants of this Lease shall be
deemed or construed to constitute a waiver of any other violation or
default.
G. RELETTING OF PREMISES. In the event of any termination of this
Lease and/or repossession of the Premises for an Event of Default,
Landlord shall use reasonable efforts to relet the Premises and to collect
rental after reletting, with no obligation to accept any lessee that
Landlord deems undesirable or to expend any funds in connection with such
reletting or collection of rents therefrom. Tenant shall not be entitled
to credit for or reimbursement of any proceeds of such reletting in excess of
the rental owed hereunder for the period of such reletting. Landlord may
relet the whole or any portion of the Premises for any period, to any
Tenant and for any use or purpose.
H. LANDLORD'S DEFAULT. If Landlord fails to commence to perform any
of its obligations hereunder within thirty (30) days after written notice
from Tenant specifying such failure, and such failure results in a defect
that seriously jeopardizes the safety of persons occupying the Premises or
threatens equipment or machinery owned by Tenant within the Premises, or such
defect impairs Tenant's ability to conduct its business within the Premises,
and Landlord has failed to commence to cure the default or obligation within
the thirty (30) day period outlined above, Tenant shall be permitted to cure
Landlord's default or obligation and Landlord will be obligated to reimburse
Tenant for the actual cost incurred to cure Landlord's default or obligation.
All obligations of Landlord hereunder will be construed as covenants, not
conditions; and all such obligations will be binding upon Landlord only
during the period of its possession of the Premises and not thereafter. The
term "Landlord" shall mean only the owner, for the time being of the Premises
and, in the event of the transfer by such owner of its interest in the
Premises, such owner shall thereupon be released and discharged from all
covenants and obligations of the Landlord thereafter accruing, provided that
such covenants and obligations shall be binding during the Lease term upon
each new owner for the duration of such owner's ownership. Notwithstanding
any other provision of this Lease, Landlord shall not have any personal
liability hereunder. In the event of any breach or default by Landlord in any
term or provision of this Lease, Tenant agrees to look solely to the equity
or interest then owned by Landlord in the Premises or the Building; however,
in no event, shall any deficiency judgment or any money judgment of any kind
by sought or obtained against any Landlord.
I. TENANT'S PERSONAL PROPERTY. If Landlord repossesses the Premises
pursuant to the authority herein granted, or if Tenant vacates or abandons
all or any part of the Premises, then, in addition to Landlord's rights under
Paragraph 29 hereof, Landlord shall have the right to (i) keep in place and
use or (ii) remove and store, all of the furniture, fixtures, and equipment
at the Premises, including that which is owned by Tenant, at all times prior
to any foreclosure thereon by Landlord or repossession thereof by any lessor
thereof or third party having a lien thereon. In addition to the Landlord's
other rights hereunder, Landlord may dispose of the stored property if Tenant
does not claim the property within twenty (20) days after the date the
property is stored. Landlord shall give Tenant at least ten (10) ten days
prior written notice of such intended disposition. Landlord shall also have
the right to relinquish possession of all or any portion of such furniture,
fixtures, equipment and other property to any person ("Claimant") who
presents to Landlord a copy of any instrument represented by Claimant to have
been executed by Tenant (or any predecessor of Tenant) granting Claimant
the right under various circumstances to take possession of such furniture,
fixtures, equipment or other property, without the necessity on the part of
Landlord to inquire into the authenticity or legality of said instrument. The
rights of Landlord herein stated shall be in addition to any and all other
rights that Landlord has or may hereafter have at law or in equity; and
Tenant stipulates and agrees that the rights granted Landlord under this
paragraph are commercially reasonable.
21. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a
lien or charge upon the Premises or the improvements situated thereon or the
Building, provided, however, that
5 Landlord's Initials _____
Tenant's Initials _____
if the mortgagee, trustee or holder of any such mortgage or deed of trust
elects to have Tenant's interest in this Lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this Lease shall be deemed superior to such lien, whether this Lease was
executed before or after said mortgage or deed of trust. Tenant, at any time
hereafter on demand, shall execute any instruments, releases or other
documents that may be required by any mortgagee for the purpose of
subjecting and subordinating this Lease to the lien of any such mortgage,
provided the subordination does not change any of the Lease terms contained
within this Lease and the subordination agreement contains an attornment and
non-disturbance agreement. Tenant shall not terminate this Lease or pursue
any other remedy available to Tenant hereunder for any default on the part of
Landlord without first giving written notice by certified or registered mail,
return receipt requested, to any mortgagee, trustee or holder of any such
mortgage or deed of trust, the name and post office address of which Tenant
has received written notice, specifying the default in reasonable detail and
affording such mortgagee, trustee or holder a reasonable opportunity (but in
no event less than thirty days) to make performance, at its election, for and
on behalf of Landlord.
22. MECHANIC'S LIENS. Tenant has no authority, express or implied, to create
or place any lien or encumbrance of any kind or nature whatsoever upon, or in
any manner to bind the interest of Landlord or Tenant in the Premises. TENANT
WILL SAVE AND HOLD LANDLORD HARMLESS FROM ANY AND ALL LOSS, COST OR EXPENSE,
INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES, BASED ON OR ARISING OUT OF
ASSERTED CLAIMS OR LIENS AGAINST THE LEASEHOLD ESTATE OR AGAINST THE RIGHT,
TITLE AND INTEREST OF THE LANDLORD IN THE PREMISES OR UNDER THE TERMS OF THIS
LEASE.
23. MISCELLANEOUS.
A. INTERPRETATION. The captions inserted in this Lease are for
convenience only and in no way define, limit or otherwise describe the scope
or intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.
B. BINDING EFFECT. Except as otherwise herein expressly provided,
the terms, provisions and covenants and conditions in this Lease shall apply
to, inure to the benefit of and be binding upon the parties hereto and upon
their respective heirs, executors, personal representatives, legal
representatives, successors and assigns. Landlord shall have the right to
transfer and assign, in whole or in part, its rights and obligations in the
Premises and in the Building and other property that are the subject of this
Lease.
C. EVIDENCE OF AUTHORITY. Tenant agrees to furnish to Landlord,
promptly upon demand, a corporate resolution, proof of due authorization by
partners or other appropriate documentation evidencing the due authorization
of such party to enter into this Lease.
D. FORCE MAJEURE. Landlord shall not be held responsible for
delays in the performance of its oblations hereunder when caused by material
shortages, acts of God, labor disputes or other events beyond the control of
Landlord.
E. PAYMENTS CONSTITUTE RENT. Notwithstanding anything in this
Lease to the contrary, all amounts payable by Tenant to or on behalf of
Landlord under this Lease, whether or not expressly denominated as rent,
shall constitute rent.
F. ESTOPPEL CERTIFICATES. Tenant agrees, from time to time, within
ten (10) days after request of Landlord, to deliver to Landlord, or
Landlord's designee, an estoppel certificate stating that this Lease is in
full force and effect, the date to which rent has been paid, the unexpired
term of this Lease, any defaults existing under this Lease (or the absence
thereof) and such other factual or legal matters pertaining to this Lease as
may be requested by Landlord. It is understood and agreed that Tenant's
obligation to furnish such estoppel certificates in a timely fashion is a
material inducement for Landlord's execution of this Lease, provided it does
not alter the terms of this Lease.
G. ENTIRE AGREEMENT. This Lease constitutes obligations which have
the entire understanding and agreement of Landlord and Tenant with respect to
the subject matter of this Lease, and contains all of the covenants and
agreements of Landlord and Tenant with respect thereto. Landlord and Tenant
each acknowledge that no representations, inducements, promises or
agreements, oral or written, have been made by Landlord or Tenant, or anyone
acting on behalf of Landlord or Tenant, which are not contained herein, and
any prior agreements, promises, negotiations or representations not expressly
set forth in this Lease are of no force or effect. EXCEPT AS SPECIFICALLY
PROVIDED IN THIS LEASE, TENANT HEREBY WAIVES THE BENEFIT OF ALL IMPLIED
WARRANTIES, IT BEING UNDERSTOOD THAT LANDLORD WILL CONSTRUCT THE PREMISES
SPECIFICALLY FOR TENANT'S INTENDED USE AND IN ACCORDANCE WITH PLANS AND
SPECIFICATIONS, AND WITH RESPECT TO THE PREMISES, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR ANY
PARTICULAR PURPOSE. Landlord's agents and employees do not and will not have
authority to make exceptions, changes or amendments to this Lease, or factual
representations not expressly contained in this Lease. Under no
circumstances shall Landlord or Tenant be considered an agent of the other.
This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
H. SURVIVAL OF OBLIGATIONS. All obligations of Tenant hereunder
not fully performed as of the expiration or earlier termination of the term
of this Lease shall survive the expiration or earlier termination of the term
hereof, including without limitation all payment obligations with respect to
taxes and insurance and all obligations concerning the condition and repair
of the Premises. Upon the expiration or earlier termination of the term
hereof, and prior to Tenant vacating the Premises, Tenant shall pay to
Landlord any amount reasonably estimated by Landlord as necessary to put the
Premises in good condition and repair, reasonable wear and tear excluded,
including without limitation the cost of repairs to and replacements of all
heating and air conditioning systems and equipment therein. Tenant shall
also, prior to vacating the Premises, pay to Landlord the amount, as
estimated by Landlord, of Tenant's obligation hereunder for real estate taxes
and insurance premiums for the year in which the Lease expires or terminates.
All such amounts shall be used and held by Landlord for payment of such
obligations of Tenant hereunder, with Tenant being liable for any additional
costs therefore upon demand by Landlord, or with any excess to be returned to
Tenant after all such obligations have been determined and satisfied, as the
case may be. Any Security Deposit held by Landlord may, at Landlord's
option, be credited against any amounts due from Tenant under this Paragraph
23H.
I. SEVERABILITY OF TERMS. If any clause or provision of this Lease
is illegal, invalid or unenforceable under present of future laws effective
during the term of this Lease, then, in such event, it is the intention of
the parties hereto that the remainder of this Lease shall not be affected
thereby, and it is also the intention of the parties to this Lease that in
lieu of each clause or provision of this Lease that is illegal, invalid or
unenforceable clause or provision as may be legal, valid and enforceable.
J. EFFECTIVE DATE. All references in this Lease to "the date
hereof" or similar references shall be deemed to refer to the last date in
point in time on which all parties hereto have executed this Lease.
K. BROKER'S COMMISSION. Tenant represents and warrants that it has
dealt with and will deal with no broker, agent or other persons other than
CHRIS WHITWORTH OF HILL PARTNERS AND SCOTT YOUNG AND CHAD MUELLER OF SCOTT
YOUNG PROPERTIES in connection with this transaction or future related
transactions and that no broker, agent or other person brought about this
transaction, and Tenant agrees to indemnify and hold Landlord harmless from
and against any claims by any other broker, agent or other person claiming a
commission or other form of compensation by virtue of having dealt with them
with regard to this leasing transaction.
L. AMBIGUITY. Landlord and Tenant hereby agree and acknowledge
that this Lease has been fully reviewed and negotiated by both Landlord and
Tenant, and that Landlord and Tenant have each had the opportunity to have
this Lease reviewed by their respective legal counsel, and, accordingly, in
the event of any ambiguity herein, Tenant does hereby waive the rule of
construction that such ambiguity shall be resolved against the party who
prepared this Lease.
M. JOINT AND SEVERAL LIABILITY. If there be more than one Tenant,
the obligations hereunder imposed upon Tenant shall be joint and several. If
there be a guarantor of Tenant's obligations hereunder, the obligations
hereunder imposed upon Tenant shall be joint and several obligations of
Tenant and such guarantor, and Landlord need not first proceed against Tenant
before proceeding against such guarantor, nor shall any such guarantor be
released from its guaranty for any reason whatsoever, including, without
limitation, in case of any amendments hereto, waivers hereof or failure to
give such guarantor any notices hereunder
6 Landlord's Initials _____
Tenant's Initials _____
N. THIRD PARTY RIGHTS. Nothing herein expressed or implied is
intended, or shall be construed, to confer upon or give to any person or
entity, other than the parties hereto, any right or remedy under or by reason
of this Lease.
0. EXHIBITS AND ATTACHMENTS. All exhibits, attachments, riders and
addenda referred to in this Lease, and the exhibits listed herein below and
attached hereto, are incorporated into this Lease and made a part hereof for
all intents and purposes as if fully set out herein. All capitalized terms
used in such documents shall, unless otherwise defined therein, have the same
meanings as are set forth herein.
P. APPLICABLE LAW. This Lease has been executed in the State of
Texas and shall be governed in all respects by the laws of the State of
Texas. It is the intent of Landlord and Tenant to conform strictly to all
applicable state and federal usury laws. All agreements between Landlord and
Tenant, whether now existing or hereafter arising and whether written or
oral, are hereby expressly limited so that in no contingency or event
whatsoever shall the amount contracted for, charged or received by Landlord
for the use, forbearance or retention of money hereunder or otherwise exceed
the maximum amount which Landlord is legally entitled to contract for, charge
or collect under the applicable state or federal law. If, from any
circumstance whatsoever, fulfillment of any provision hereof at the time
performance of such provision shall be due shall involve transcending the
limit of validity prescribed by law, then the obligation to be fulfilled
shall be automatically reduced to the limit of such validity, and if from any
such circumstance Landlord shall ever receive as interest or otherwise an
amount in excess of the maximum that can be legally collected, then such
amount which would be excessive interest shall be applied to the reduction of
rent hereunder, and if such amount which would be excessive interest exceeds
such rent, then such additional amount shall be refunded to Tenant.
24. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivering of notice or the making of
any payment by Landlord to Tenant or with reference to the sending, mailing
or delivering of any notice or the making of any payment by Tenant to
Landlord shall be deemed to be complied with when and if the following steps
are taken:
(i) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address for Landlord
set forth below or at such other address as Landlord may specify from time to
time by written notice delivered in accordance herewith. Tenant's obligation
to pay rent and any other amounts to Landlord under the terms of this Lease
shall not be deemed satisfied until such rent and other amounts have been
actually received by Landlord.
(ii) All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address set forth below, or at
such other address within the continental United States as Tenant may specify
from time to time by written notice delivered in accordance herewith.
(iii) Except as expressly provided herein, any written notice,
document or payment required or permitted to be delivered hereunder shall be
deemed to be delivered when received or, whether actually received or not,
when deposited in the United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective addresses
set out below, or at such other address as they have theretofore specified by
written notice delivered in accordance herewith.
26. ADDITIONAL PROVISIONS. See EXHIBIT "B" attached hereto and incorporated
by reference herein.
EXECUTED BY LANDLORD, this 15th day of April, 1998.
CROSS PARK INVESTORS, LTD.
BY: CAMERON ROAD INVESTORS, LTD. A TEXAS LIMITED LIABILITY CO.
ITS: GENERAL PARTNER
BY:
---------------------------
ITS: MANAGING DIRECTOR
Address: C/O Scott Young Properties
P.O. Box 1525, Austin, Texas 78767
EXECUTED BY TENANT, this 8th day of April, 1998.
ADVANCED ENERGY INDUSTRIES, INC.
By:
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Its: VP & CFO
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Address: 1625 Sharp Point Drive
Fort Collins, CO 80525
Phone: 970-221-4670
Fax: 970-407-5243
EXHIBIT "A" Description of Premises
EXHIBIT "B" Additional Provisions
EXHIBIT "C" Rules and Regulations
EXHIBIT "D" Tenant Construction Standards
EXHIBIT "E" Sign Criteria
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EXHBIT "F" Construction Plans
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EXHIBIT "A"
Lots 5 and 6 of Block I, Walnut Creek Business Park, Phase A,
Section 1, Travis County, Texas, and locally known as 8601 Cross Park Drive,
Austin, Texas.
[MAP]
EXHIBIT "B"
ADDITIONAL PROVISIONS
1. N-N-N CHARGES. In addition to the Base Rent as specified in paragraph
2. A and B of the Lease, Tenant shall escrow with Landlord on a monthly basis
along with the Base Rent payment, Tenant's pro rata share of the cost of Real
Property Taxes, Insurance and Common Area Maintenance. The initial estimated
monthly costs for these items based on preliminary estimates of cost for the
full year (and subject to increase or decrease) are as follows:
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EXPENSE PER SQUARE FOOT AMOUNT PER MONTH
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Property Taxes $.10 $ 681.20
Insurance $.01 $ 68.12
CAM $.09 $ 613.08
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TOTAL $.20 $1,362.40
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2. CONDITION OF THE PREMISES. Landlord shall deliver the Premises in an
"as-is" condition except that Landlord shall agree to clean the floors
and walls prior to occupancy by Tenant.
3. TENANT IMPROVEMENTS. At its' sole cost and expense and with Landlord's
prior consent as to the location and the installation technique, Tenant
shall be allowed to:
A) Install an approximately 12' x 12' fenced concrete pad at the rear
of the Premises. Landlord and Tenant shall agree on a mutually
acceptable location for the enclosure.
B) Install an air compressor and chilled water tower within the fenced
area behind the Premises.
C) Upgrade the existing electrical service, if necessary.
If required by Landlord, Tenant shall agree to restore the Premises to
its original condition, reasonable wear and tear excepted upon the
expiration of this Lease.
4. SHARED LOADING DOCK. Landlord will use good faith to obtain a written
agreement with Aera Corporation for the sharing of the dock-high loading
dock at the rear of the Aera Corporation lease space.
5. LEASE EXPIRATION. This Lease shall expire upon the earlier of the
following events occurring:
A) One (1) year from the Commencement Date of the Lease as specified in
the Lease.
B) The commencement of the lease term and the payment of rent by
Advanced Energy Industries, Inc. for a lease space within the
Cameron Technology Center.
6. LEASE EXTENSION. In the event the building shell to be constructed by
Cameron Technology Investors, Ltd. for Advanced Energy Industries, Inc.
within the Cameron Technology Center is not substantially complete by
February 15, 1999, Landlord shall agree to automatically extend this
Lease for a period of six (6) additional months from the date the Lease
would have otherwise expired as specified in this Lease. All other terms
and conditions within the Lease will remain the same during the Lease
Extension period.
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EXHIBIT "C"
BUSINESS PARK RULES AND REGULATIONS
The following rules and regulations shall apply where applicable, to the
Premises, the Building, the Project, the driveways and parking areas, the
land situated beneath the Premises, Building, and Project and the
appurtenances thereto:
1. Sidewalks, doorways, halls stairways and other similar areas shall not
be obstructed by Tenant or used by any Tenant for any purpose other than
ingress and egress to and from the Premises and for going from one to
another part of the Building.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by a Tenant or such Tenant's agents,
employees or invitees, shall be paid by such Tenant, and Landlord shall
not in any case be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or to
any windows or doors or other exterior part of the Building or the
Premises except of such color, size and style and in such places as
shall be first approved by, Landlord. Landlord, at Tenant's sole cost
and expense, shall install all letters or numerals by or on doors in
such Tenants Premises, which letters or numerals shall be in building
standard graphics. No nails, hooks or screws shall be driven or inserted
in any part of the Building outside the Premises except by the Building
maintenance personnel nor shall any part of the Building be defaced by
Tenant. No curtains or other window treatments shall be placed between
the glass and the Building standard window treatments.
4. Landlord will provide and maintain a directory for all Tenants at the
end of each building and no other directory shall be permitted unless
previously consented to by Landlord in writing.
5. Two (2) keys to the locks on the exterior doors entering each Tenant's
Premises shall be furnished by Landlord free of charge, with any
additional keys to be furnished by Landlord to each Tenant, at Tenant's
cost. Tenant shall not place any additional lock or locks on any door in
or to its Premises without Landlord's prior written consent. All such
keys shall remain the property of Landlord. Landlord will reduce $20.00
per key from Tenant's Security Deposit account for each key issued and
not returned by Tenant at time of move out.
6. Landlord will provide within the Business Park a postal box for Tenants
receipt of letter mail only. Landlord will issue to the tenant two keys
to the postal box. The box keys are not to be duplicated by the Tenant.
Tenant is held accountable for the keys and will bear the cost or
re-keying the locks should the Tenant fail to return all keys at the end
of the Lease.
7. With respect to work being performed by Tenants in its Premises with the
approval of Landlord, all tenants will refer all contractors,
contractors' representatives and installation technicians rendering any
service to them to Landlord for Landlord's supervision, approval and
control before the performance of any contractual services. This
provision shall apply to all work performed in the Building including,
but not limited to, installations of telephones, telegraph equipment,
electrical devises and attachments, doors, entrance ways, and any and
all installations of every nature affecting floors, walls, woodwork,
trim, windows, ceilings, equipment and any other physical portion of the
Premises and Building.
8. Each tenant shall cooperate with Landlord's employees in keeping its
Premises neat and clean.
9. Tenant is responsible for janitorial service within its Premises.
10. Designated areas for trash containers are assigned to each tenant.
Tenants will be billed direct by a trash removal service approved by the
Landlord. Drums, pallets, equipment, vehicles, etc. are not allowed to
be stored outside of building. Trash in the common area will be removed
by the Landlord and the cost of removal prorated to the Tenants sharing
the common area.
11. Landlord shall not be responsible to the tenants, their agents,
employees, or invitees for any loss of property from the Premises or
public areas or for any damages to any property thereon from any cause
whatsoever.
12. Should a tenant require telegraphic, telephonic, annunicator or other
communication service, Landlord will direct the electrician where and
how wires are to be introduced and placed and none shall be introduced
or placed except as Landlord shall direct.
13. Tenant shall not make or permit any improper, objectionable or
unpleasant noises or odors in the Premises or Building or otherwise
interfere in any way with other tenants or persons having business with
them.
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14. No machinery of any kind shall be operated by Tenant in its Premises
without the prior written consent of Landlord, nor shall any tenant use
or keep in the Premises or Building any flammable or explosive fluid or
substance.
15. Nothing shall be swept or thrown into parking areas or driveways. No
birds or animals shall be brought into or kept in, or about any tenant's
leased premises.
16. Tenant, its agents, employees and invitees shall park only in those
areas designated by Landlord for parking by Tenant and shall not park on
any public or private streets contiguous to, surrounding or in the
vicinity of the Building without Landlord's prior written consent.
17. No portion of any tenant's Premises shall at any time be used or
occupied as sleeping or lodging quarters.
18. Landlord reserves the right to rescind any of these rules and
regulations and to make such other and further reasonable rules and
regulations as in its judgment shall from time to time be needful for
the safety, protection, care and cleanliness of the Building and
Project, the operation hereof, the preservation of good order therein
and the protection and comfort of the Tenants and their agents,
employees and invitees, which rules and regulations, when made and
written notice thereof is given to a Tenant, shall be binding upon it in
like manner as if originally herein prescribed.
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EXHIBIT "D"
TENANT CONSTRUCTION STANDARDS
TENANT SPACE DRAWINGS AND SPECIFICATION REQUIREMENTS
If Landlord's Architect does not prepare the drawings and specifications,
then Tenant agrees that they shall be prepared by a licensed Architect and
shall bear his registration seal, number, and signature. All documents must
be reviewed and approved by Landlord and his Architect prior to the start of
construction. The Tenant is required, upon completion of the construction,
to provide the Landlord with a marked up blue line complete set of prints
showing the conditions as built and a reproducible mylar complete set of
drawings with changes in ink and a copy of the building permit and
Certificate of Occupancy.
BUILDING CODES AND STANDARDS
All plans, specifications and construction for the Tenant's space must
conform to the following codes and standards and any other applicable codes,
standards, ordinances, and regulations.
1. Current Uniform Building Codes accepted by the City of Austin.
2. National Electrical Code.
3. City of Austin, Electrical Utility Department Code.
4. Uniform Mechanical Code.
5. City of Austin Health Department Code.
6. Department of Labor - Occupational Safety and Health Standards.
7. Consumer Product Safety Commission.
8. State of Texas Architectural Barriers Requirements.
9. Fire Marshall Requirements.
CONSTRUCTION ACCESS
Tenant shall use only the area immediately to the rear of its lease space for
construction access. Adjoining spaces shall not be used for any purpose.
Tenant shall be responsible for the repair of any damage done to the Project
or Building by Tenant's construction of its own lease space.
TEMPORARY UTILITIES
Tenant and/or his contractors and/or subcontractors are responsible for
temporary toilets and temporary utilities for their work, including payment
of all utility charges. All arrangements shall be made with City of Austin,
Southern Union Gas, and Southwestern Bell as applicable.
CONSTRUCTION TRASH
Trash, surplus construction materials, boxes, crates, debris, etc., from the
Tenant's construction shall be removed daily from the Premises and hauled off
the project site. Trash left on the project will be hauled off at the
Tenant's expense.
TENANT SEPARATION
Walls which abut another Tenant's space must be a minimum two (2) Hour rated
extending from floor to the roof deck with insulation. In the case where the
space is vacant adjacent to Tenant's demising wall(s), such a wall shall be
constructed of 3 1/2" metal studs spaced at 16" o.c. with minimum two (2)
layers of 5/8" thick type X gypsum wallboard on the Tenant's side with
staggered 2' joints. All penetrations to the demising wall(s) shall be
treated to maintain the minimum two (2) Hour rating.
TELEPHONE
It is each Tenant's responsibility to procure the telephone service to its
Premises. If any telephone equipment room is required by the Tenant, it
must be located within its Premises. Tenants shall be responsible for
routing its telephone service through the raceway system provided by Landlord
in the shell building.
HVAC
Space above ceilings may not be used as a return air plenum. All return air
shall be ducted from the conditioned space. The Landlord has the right to
approve or disapprove the HVAC design and Tenant shall select the HVAC
equipment from Landlord's standards. Location of roof top units shall be on
pads as provided in the shell building with the location approved by the
Landlord. Tenant shall indicate the actual weights and dimensions on their
working drawings for review and approval by the Landlord of roof mounted
equipment. Condensation lines shall drain into each Tenant's sewer
ROOF PENETRATIONS
All roof penetrations, equipment supports, pitch pans, flashing curbing, and
roofing repairs shall be as approved by Landlord and performed by a roofer
approved by Landlord at Tenant's expense. All roof penetrations shall occur
within the boundaries of the Premises.
WATER
A common water line and valve will be provided for each lease space. Tenant
water piping shall start at the point of the valve. All tenants requiring
more plumbing than the required toilet room facilities, drinking fountain
(1), service sink (1), employee bar type sink (1) shall be required to
furnish their own piping, meter, and installation. Should Tenant's water
consumption levels exceed typical levels, Landlord and Tenant agree that
Tenant shall supply a water flow meter of which Landlord shall read monthly
and bill back Tenant for Tenant's actual consumption.
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SANITARY SEWER
A sewer line will be installed under floor accessible to the Premises.
Tenant's sewer piping will start at the point of the sewer line tap in
Tenant's Premises.
ELECTRICITY
All electric service meter wireways will be installed in an area determined
by Landlord. Each Tenant shall furnish and install his meter at the
appropriate meter wireway as approved by Landlord. Tenant shall be
responsible for obtaining an electric meter at his cost. If the wattage
density exceeds that provided in the shell for Tenant's lease space, the
Tenant will pay the additional cost for larger service to be installed by
Landlord. Total power requirements shall be tabulated on the Tenant's
working drawings submitted for approval.
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EXHIBIT "E"
SIGN CRITERIA
1. COST OF THE SIGN(S). Identifying Tenant graphics for all leased Premises
are the responsibility of Tenant. All expenses for fabrication,
installation and sign maintenance shall be borne solely by Tenant.
2. APPROVAL OF SHOP DRAWINGS. Prior to the fabrication of any sign,
Tenant shall present to Landlord and to the Walnut Creek Improvement
Association for approval, shop drawings prepared by the manufacturer.
All shop drawings shall be dimensionally scaled with the proposed sign
located on a drawing of the building elevation; the shop drawings shall
indicate all dimensions; shall indicate the actual letter style or font;
if a logo is to be used, the actual logo shall be illustrated on the
building elevation; all actual materials, paint brand and color(s)
shall be specified; and the method of the sign attachment to the
Building shall be clearly denoted. Landlord does not represent or
warrant that these sign criteria contained herein will meet the specific
requirements of the Walnut Creek Improvement Association. Landlord
shall agree to use good faith to assist Tenant in securing the approval
of its sign from the Walnut Creek Improvement Association.
3. MATERIALS. Tenant sign graphics shall consist of individually cut
letters. Letters shall be cut from 1/8" Lexan mounted or laminated to a
three inch (3") width sign foam board or similar material. Letters
shall be primed and painted uniformly on face and sides with Benjamin
Moore Industrial grade paint or equivalent.
4. LOGOTYPES. Logotypes shall be cut from the same material as letters.
Logotype area shall not exceed eighteen inches (18") in height and the
sign or logotype length shall not exceed the lesser of fifty percent
(50%) of the width of Tenant's Premises or fifteen feet (15'). All
signs or logotypes shall be located above and appurtenant to the store
front of the Premises.
5. SIZE. No individual letter shall exceed eighteen inches (18") in height.
Letter line length shall not exceed the lesser of fifty percent (50%) of
the width of Tenant's Premises or fifteen feet (15'). Should Tenant's
sign contain more than one letter line, the total height of all letter
lines combined shall not exceed forty inches (40"). All signs or
logotypes shall be located above and appurtenant to the store front of
the Premises.
6. MOUNTING METHODS. All letters shall be mounted with clear silicone and
mounted flush to the exterior wall surface. Upon the expiration of the
Lease, Tenant shall remove all exterior signs from the Building and
shall restore the exterior of the Building to its original condition.
Should Tenant fail to do so, Landlord reserves the right to perform this
duty and deduct all costs associated with the removal of the sign and
restoration of the Building from the Security Deposit.
7. PROHIBITED MATERIALS. Pan signs, illuminated signs, neon or flashing
signs, banners, sandwich boards or any other sign type or material not
specifically allowed above.
8. DOORS AND WINDOW GRAPHICS. Vinyl door and window graphics are permitted.
Letter size shall not exceed 1-1/2" cap height. Line length shall not
exceed 20". All graphics shall be reverse cut from white 3M vinyl,
Sparcal vinyl or equivalent vinyl material and shall be mounted to the
interior of door glass or sidelight glass. Plaques, neon or paper signs
are prohibited at all times.
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