HomeMy WebLinkAboutRes 91-03 Approving the Lease with Maguire Partners in Solana Retail Center for Town HallRESOLUTION 3 - (:F/
WHEREAS, the Town of Westlake is desirous of leasing a space
from Maguire/Thomas Partners in the Solana Retail Center for a
Town Hall; and
WHEREAS, Maguire/Thomas Partners has submitted a proposed
lease to the Town of Westlake for such space; NOW, THEREFORE,
BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE,
TEXAS:
That the Town of Westlake, Texas does hereby approve the
Village Retail Center Lease with Maguire/Thomas Partners-
Westlake/Southlake Partnership for the leasing of approximately
744 square feet on the second floor of 3 Village Circle,
including Suite 207, the hallway or passageway from the outside
doors on the second floor of 3 Village Circle, and the exterior
walls outside the two (2) glass doors on the second floor for a
Town Hall, said lease being attached hereto as Exhibit "A" and
incorporated herein, and authorizes the Mayor to execute the
lease on behalf of the Town of Westlake, Texas.
PASSED AND APPROVED this 4th day of March, 1991.
r
/-BALE L. WHITE, MAYOR
TOWN OF WESTLAKE, TEXAS
ATTEST:
6 "/, 2 P vl: -'
G3&RY WtITE, SECRETARY
TOWN OF WESTLAKE, TEXAS
APPROVED AS TO LEGAL FORM
,,- —
PAUL C. ISHAM, TOWN ATTORNEY
TOWN OF WESTLAKE, TEXAS
c:\westlake\165
Resolution 91-03
VILLAGE RETAIL CENTER LEASE
In consideration of the rents and covenants hereinafter set forth,
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the
following described premises on the following terms and conditions:
1. FUNDAMENTAL LEASE PROVISIONS:
1.1 Date: March 4, 1991 (for identification purposes only).
1.2 Landlord: Maguire/Thomas Partners - westlake/Southlake
Partnership, a Texas general partnership.
1.3 Tenant: The Town of Westlake, a Texas municipal corporation.
1.4 Tenant's Trade Name: The Town of Westlake.
(Section 4)
1.5 Lease Term: one (1) yearSkNer-t 4o MWC_e_0a*0,,j ffcl�7+ 1*3
) Se -C ; 10 '1 S� 1,
Target Commencement Date: March 8, 1991. (Section 5)
Tenant's Plans Date: None (space already finished out).(Exhibit C)
1.6 Minimum Annual Rental: $9,672.00 (Section 6.1)
1.7 Intentionally deleted.
1.8 Intentionally deleted.
1.9 Intentionally deleted.
1.10 Intentionally deleted.
1.11 Permitted Use: General office.
1.12 Address for Notices
To Landlord: Maguire/Thomas Partners -Westlake/
Southlake Partnership
600 E. Las Colinas Blvd.
Irving, Texas 75039
Attention: Mr. Tom Allen
To Tenant: The Town of Westlake
Three Village Circle
Suite 207
Roanoke, Texas 76262
1.13 Intentionally deleted.
1.14 Premises: Suite #207.
(Section 4)
(Section 2-1)
1.15 Rentable Area of the Premises: Seven Hundred Forty-four (744)
square feet.
1.16 The following chart is provided as an estimate of Tenant's initial
monthly payment divided into its components:
Minimum Monthly RenLal. $806.00.
[Sections 1.6 and 6.1]
Initial Common Area Maintenance Charge * $0.00.
[Sections 1.8 and 7.4]
Initial Payment (eXCIUSiVe of taxes on personal property and trade
fixtures) for Operating 1.,,'Xpenses and Taxes
[Section 8.2] "1"0.00.
1,852-.1.8521,430 --1-
Initial Payment for Tenant Advertising Fund $0.00.
[Section 35]
Total Initial Monthly Payment $806.00.
* (based on estimated amounts for current calendar year, without
representation as to actual accounts determined for current and
future calendar years).
References in this Section I to other Sections are for convenience only
and to designate some of the other Sections where references to the particular
Fundamental Lease Provisions appear. Each reference in this Lease to any of
the Fundamental Lease Provisions contained in this Section 1 shall be
construed to incorporate all of the terms provided tinder each such Fundamental
Lease Provision. in the event of any conflict between any Fundamental Lease
Provision and the balance of the Lease, the latter shall control.
Notwithstanding anything otherwise set forth in this Lease, the minimum
monthly rental to be paid by Tenant shall constitute all Rent paid by Tenant
under this Lease including operating expenses, taxes, electricity, common area
maintenance charge or other charges (except for any personal property taxes,
costs of insurance, repairs under Article 15, or other special expenses of
Tenant).
2. PREMISES.
2.1 Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, those certain premises (the "Premises) set forth in Item 1.14 of the
FUNDAMENTAL LEASE PROVISIONS and shown on the drawings attached hereto and
made a part hereof as Exhibit "B" including the notice display cases to be
placed on the outside walls of the entrances to the hallway to Suite 207 and
the non-exclusive use of such hallway and landings appurtenant to the use of
such notice display cases. Such notice display cases shall be considered part
of Suite 207. The retail building in which the Premises are located, the
related retail buildings (the "Buildings") in the Village Center (the "Village
Center"), the surface parking areas which serve the Buildings, all
improvements and appurtenances to the Buildings, the landscaped areas
associated with the Buildings and the land on which the Buildings, parking,
improvements, landscaping and appurtenances are situated are referred to
collectively herein as the "Village Retail Center". The Village Retail Center
site plan is shown on Exhibit A-2 attached hereto. The Village Retail Center
is a part of larger complex of buildings and building sites (the "Complex")
known generally as Solana which name or reference may be changed or altered by
Landlord in its sole discretion pursuant to Article 28 herein. The Complex
site plan is shown on Exhibit A attached hereto. The Village Retail Center is
located on land (the "Land") more particularly described in Exhibit "Al"
attached hereto.
2.2 The Lease created hereby is upon the terms, covenants and
conditions set forth herein and Landlord and Tenant covenant, as a material
part of the consideration for the Lease, to perform all of said terms,
covenants and conditions required to be performed by Tenant and Landlord,
respectively, and further covenant that this Lease is made upon the condition
of such performance.
2.3 Notwithstanding. anthin to the contrary expressed or implied
herein, Tenant acknowledges thatth..Landlord makes no warranties regarding the
Premises except as specifically provided in this Lease and Tenant hereby
exj2ressly disclaims the implied warranty that the Premises are suitable for
their intended commercial pur2SIse, Tenant has had a full and fair opportunity
to inspect the Premises and finds that the Premises suit Tenant's purposes.
Tenant has knowledge of the Premises and with this knowledge has voluntarily
agreed to disclaim the implied warranty of suitability. Both Landlord and
Tenant have expressly bargained for and agreed to this aforementioned
disclaimer. For and in consideration of the execution of this Lease, Landlord
and Tenant agree that Landlord would not have signed this Lease but for the
waiver of those rights as expressly provided for in this Lease.
3. EXHIBITS.
The following drawings and special provisions are attached hereto as
exhibits and made a part of this Lease.
1852:18521430
EXHIBIT "A" - General site plan of the Complex. Said site plan shows,
among other things, the principal improvements which will comprise the village
Retail Center. Tenant acknowledges that the site plan is as shown on
Exhibit "A" and that Landlord may change the shape, size, location, number and
extent of the improvements shown thereon and eliminate or add any improvements
to any portion of the Complex and/or Village Retail Center, provided that
without Tenant's consent, which will not be unreasonably withheld, Landlord
shall not change the size or location of the Premises or the Tenant
Improvements therein (which are constructed within the requirements of this
Lease), nor shall Landlord unreasonably change access to or from the Premises
or Village Retail Center. Landlord reserves the absolute right to effect such
other tenancies in the village Retail Center and/or Complex as Landlord in the
exercise of its sole business judgment shall determine to best promote the
interest of the village Retail Center and/or Complex. Tenant does not rely on
the fact nor does Landlord represent that any specific tenant or number of
tenants shall during the term of this Lease occupy any space in the Village
Retail Center and/or Complex.
EXHIBIT "A" - Site Plan of Complex.
EXHIBIT "A-1" - Legal Description.
EXHIBIT "A-2" - Site Plan of Village Retail Center.
EXHIBIT "B" - Floor Plan of the Premises.
EXHIBIT "C" - Intentionally deleted.
EXHIBIT "D" - Acceptance of Premises Memorandum.
EXHIBIT "E" - Rules and Regulations.
4. USE OF PREMISES
4.1 Tenant shall use the Premises (which for this purpose include
portions of the Common Area used by Tenant pursuant to Section 7) solely for
the purposes and under the trade name specified in Section 1. Tenant shall
devote the entire Premises to such purposes. Tenant shall not use or permit
the Premises to be used for any other purpose or purposes or under any other
trade name whatsoever without the prior written consent of Landlord.
Landlord's consent to a change in the initial trade name shall not be
unreasonably withheld provided, however, that Landlord's withholding consent
to a proposed trade name which incorporates the name of the Complex, the
Village Center or the Village Retail Center as provided in Article 3 herein
shall be considered reasonable. Tenant shall not, without the prior written
consent of Landlord, sell merchandise from vending machines or allow any
coin-operated vending (except a cigarette machine, pay telephone and sanitary
napkins dispenser) or gaming machines on the Premises, and any such machines
installed without such consent shall be subject to removal by Landlord.
Tenant further covenants and agrees that it will not use or suffer or permit
any person or persons to use the Premises or any part thereof for conducting
therein a second-hand store, auction, distress or fire sale or bankruptcy or
going -out -of -business sale, or for any use or purpose in violation of the laws
of the United States of America or the laws, ordinances, regulations and
requirements of the State, County and City where the Village Retail Center is
situated, or other lawful authorities having jurisdiction, and that during
said term the Premises, and every part thereof, shall be kept by Tenant in a
clean and wholesome condition, free of any objectionable noises, odors or
nuisances, and that all health and police regulations shall, in all respects
and at all times, be fully complied with by Tenant.
4.2 Without Landlord's prior written consent, Tenant may not display
or sell merchandise, allow carts, portable signs, devices or any other objects
to be stored or to remain outside the defined exterior walls or roof and
permanent doorways of the Premises, or in hallways. No aerial or antenna
shall be erected on the roof or exterior walls of the Premises without first
obtaining, in each instance, the written consent of Landlord. Any aerial or
antenna so installed without such written consent shall be subject to removal
without notice at any time. In addition, Tenant will not solicit in any
manner in any of the automobile parking and other common areas of the Complex.
1852:18521430 -3-
4.3 Tenant agrees that all trash and rubbish of Tenant shall be
deposited within receptacles in areas designated by Landlord and that there
shall be no trash receptacles permitted to remain outside of the Premises.
4.4 Tenant shall conduct its business in the Premises during all
business hours usual for Tenant's type of business unless Tenant is prevented
from doing so by strike, fire or other cause beyond Tenant's reasonable
control, and except during reasonable periods for repairing, cleaning and
decorating the Premises.
4.5 Tenant shall promptly upon demand by Landlord reimburse Landlord
for any additional premium charged for any insurance policy by reason of
Tenant's failure to comply with the provisions of this Section and for any
other costs incurred by Landlord in enforcing the provisions of this Section.
4.6 If any governmental license or permit is required for the lawful
conduct of any business or other activity carried on by Tenant in the
Premises, and if the failure to obtain such license or permit would affect
Landlord, Tenant shall procure and maintain such license or permit throughout
the term of this Lease, submit such license or permit for inspection by
Landlord and comply at all times with all terms and conditions thereof.
4.7 Tenant covenants by and for itself, its successors and assigns,
and all persons claiming under or -through Tenant, and this Lease is made and
accepted upon and subject to the following conditions: that there shall be no
discrimination against or segregation of any person or group of persons, on
account of race, color, creed, sex, religion, marital status, ancestry or
national origin in the leasing, subleasing, transferring, use, or enjoyment of
the Premises, nor shall Tenant itself, or any person claiming under or through
Tenant, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use or
occupancy, of tenants, lessees, sublessees, subtenants or vendees in the
Premises.
4.8 Intentionally deleted.
4.9 Landlord reserves the right to reasonably regulate the activities
of Tenant in regard to deliveries and servicing of the Premises, and Tenant
agrees to abide by such regulations of Landlord.
4.10 Landlord shall from time to time designate specific areas within
the Village Retail Center or in reasonable proximity thereto in which
automobiles owned by Tenant, its employees, agents, licensees and
concessionaires shall be parked. In this regard, Tenant shall furnish to
Landlord upon request a complete list of license numbers of all automobiles
operated by Tenant, its employees, agents, licensees and concessionaires, and
Tenant agrees that no automobile or other vehicle owned by Tenant or any of
its employees, agents, licensees or concessionaires shall at any time be
parked in any part of the Village Retail Center other than the specified areas
designated for employee parking. If Tenant, its employees, agents, licensees,
and/or concessionaires violate the provisions of the previous sentence, then
Landlord has the right, in addition to other remedies available to Landlord to
charge Tenant as additional rent an amount equal to the daily rate or charge
for such parking as established by Landlord from time to time for each day, or
part -thereof, such automobile or other vehicle is so parked.
5. LEASE TERM
5.1 The term of this Lease shall be the period of time specified in
Item 1.5 of the Fundamental. Lease Provisions, adjusted as provided below. The
term shall commence on the date on which (i) a certificate of occupancy for
the Premises is or has been issued by the appropriate municipality, and
Landlord has previously given the Notice of Tender under Section 5.2, as such
date may be accelerated pursuant to Section 7 of the Agreement for
Construction attached as Exhibit "C", or (ii) Tenant has occupied any portion
of the Premises. The term of this Lease shall expire, without notice to
-*-Tenant, on the Expiration Date*—If the Lease commences on any day other than
the first day of a calendar month, the term of the Lease shall be extended by
that part of one month necessary to cause the expiration of the term to be on
the last day of a calendar month. The dates of commencement ("Commencement
Date") and expiration ("Expiration Date"), shall be documented by Landlord and
Tenant by execution of an "Acceptance of Premises Memorandum" attached hereto
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as Exhibit "D" and made a part hereof. In no event shall this Lease be void,
voidable or subject to termination nor shall Landlord be liable to Tenant for
any loss or damage resulting from Landlord's inability to deliver the Premises
to Tenant on the date specified in Landlord's notice given pursuant to
Section 5.2, but no rent hereunder shall be payable with respect to any delay
in delivery of the Premises caused by Landlord.
5.2 Landlord shall deliver to Tenant a written notice (the "Notice of
Tender") stating the date on which the Premises will be ready for occupancy,
which date shall not be less than fifteen (15) days from the date of said
notice. The Premises shall be deemed ready for occupancy when (a) Landlord
has provided reasonable access to the Premises by Tenant, its agents,
employees, licensees and invitees so that the Premises may be used without
substantial interference; (b) Landlord has substantially completed the Tenant
Work required to be performed by Landlord in accordance with the Agreement for
Construction other than minor details of construction, decoration and
mechanical adjustments which do not materially interfere with Tenant's use of
the Premises; and (c) Landlord shall have (i) obtained a Certificate of
Occupancy for the portion of the Village Retail Center which includes all of
the Premises; or (ii) completed all Base Building Work (as defined in the
Agreement for Construction) and all Tenant Work necessary to entitle Landlord
to the issuance of such a Certificate of Occupancy from the City of Westlake.
Notwithstanding anything to the contrary set forth above, in the event
the date on which the Premises are ready for occupancy is delayed as a result
of any delay in the completion of the Tenant Work due to any act or omission
of any kind by Tenant, its agents or employees, as described in Section 7 of
the Agreement for Construction, the Commencement Date and. the commencement of
Tenant's obligation to pay rent shall be accelerated by the number of days of
such delay and shall occur on the date the Premises would have been ready for
occupancy without such delay.
Tenant, by entering into occupancy of any part of the Premises, shall be
conclusively deemed to have agreed that Landlord up to the time of such
occupancy had performed all of its obligations hereunder with respect to such
part and that such part, except for minor details of construction, decoration
and mechanical adjustments referred to above, was in satisfactory condition
and in full compliance with the requirements of this Lease as of the date of
such occupancy.
6. RENTAL
Tenant agrees to pay as rental for the use and occupancy of the
Premises, at the times and in the manner hereinafter provided, the following
sums of money:
6.1 Minimum Annual Rental. The Minimum Annual Rental specified in
Section 1.6 hereof shall be payable in twelve (12) equal monthly installments
during each year, in advance, on the first day of each calendar month,
beginning on the Commencement Date.
In the event the Commencement Date occurs on a day other than the first
day of a calendar month, then the Minimum Annual Rental for the portion of the
calendar month beginning with the Commencement Date shall be prorated on the
basis of the actual number of days in said month and shall be paid on the
Commencement Date. All rental to be paid by Tenant to Landlord shall be in
lawful money of the United States of America and shall be paid without
deduction or offset, except as otherwise specifically provided herein, and
without prior notice or demand, and at such place or places as may be
designated from time to time by Landlord.
6.2 Intentionally deleted.
6.3 Additional Rent. If Tenant shall fail to pay any rental
designated in this Section 6 when due and payable, then Tenant shall pay to
Landlord, as a late charge and in consideration of the additional costs
incurred by Landlord and the additional record-keeping required to be
performed by Landlord, the sum equal to ten percent (10%) of the amount due,
it being agreed by Landlord and Tenant that such additional costs cannot be
precisely calculated and both parties agree that the foregoing late charge
constitutes an approximation of such costs which is fair to both Tenant and
Landlord.
1852:18521430 -5-
7. COMMON AREAS
7.1 The term "Common Area" is defined for all purposes of this Lease
as that part of the Village Retail Center or the Complex intended for the
common use of more than one tenant, including among other facilities and
without limiting the generality of the foregoing, parking areas, private
streets and alleys, courtyards and water features, landscaping, curbs, loading
areas, sidewalks, promenades, lighting facilities, drinking fountains, public
toilets, boilers, central heating and air conditioning, compressor, utilities,
hallways, reception areas and the like. Landlord reserves the right to change
from time to time the dimensions and location of the Common Area, as well as
the dimensions, identity and type of any buildings in the Complex. For
example, and without limiting the generality of the immediately preceding
sentence, Landlord may from time to time substitute for any parking area other
areas reasonably accessible to the tenants of the Village Retail Center, which
areas may be elevated, surface or underground.
7.2 Tenant, its agents, employees, customers, invitees and licensees
shall have the nonexclusive right to use the Common Area (excluding roofs of
the buildings) as constituted from time to time, such use to be in common with
Landlord, other tenants in the Village Retail Center and other persons
permitted by Landlord to use the same, and subject to such reasonable rules
and regulations governing use as Landlord may from time to time prescribe.
For example, and without limiting the generality of Landlord's ability to
establish rules and regulations governing all aspects of the Common Area,
Tenant agrees as follows:
(a) Tenant shall not solicit business within the Common Area nor
take any action which would interfere with the rights of other persons to use
the Common Area.
(b) Landlord may temporarily close any part of the Common Area
for such periods of time as may be necessary to make repairs or alterations or
to prevent the public from obtaining prescriptive rights.
(c) Use of the roofs is reserved for Landlord or, with regard to
any tenant demonstrating to Landlord's satisfaction a need for access to same,
to such tenant after receiving prior written consent from Landlord.
7.3 Landlord shall be responsible for the operation, management and
maintenance of the Common Area, the manner of maintenance and the expenditures
therefor to be in the sole discretion of Landlord but to be generally in
keeping with the first-class standards of the Complex.
7.4 Intentionally deleted.
7.5 Intentionally deleted.
7.6 Intentionally deleted.
8. OPERATING EXPENSES AND TAXES
8.1 Definitions
A. "Operating Expenses" shall mean all of Landlord's costs and
expenses paid or incurred in operating and maintaining the Buildings in the
Village Retail Center as a portion of the Complex for a particular calendar
year or portion thereof as determined by Landlord in accordance with
reasonable management practices. Operating Expenses shall include by way of
illustration but not limitation: all real estate taxes and assessments,
general, special or otherwise (including assessments by municipal utility
districts and/or other municipal entities); assessments by the Project
Maintenance Association; any Common Area Maintenance Charges not included
within the Project Maintenance Association assessments; costs and expenses of
contesting the validity or amount of real estate taxes; all insurance premiums
and other expenses incurred by Landlord for liability insurance and fire and
extended coverage; any water, sewer, electrical, natural gas, cable and other
utility charges; fire and police protection charges or fees, if any; security
services; license, permit and inspection fees; management fees and expenses;
wages and related benefits payable to employees relating thereto; maintenance
and repair of electrical, plumbing, mechanical, roof and other systems;
maintenance and repair of the Buildings, except for repairs and maintenance of
1852:18521430
the foundation and structural elements of the exterior walls of the Buildings;
legal and consulting fees; purchase and cleaning of employee uniforms;
accounting services; landscaping, trash removal, any and all charges for
operation, maintenance, repair and security for structured or surface parking
as pro -rated by Landlord among the buildings having general access to such
parking facilities and, in general, all other costs and expenses which would
generally be regarded as operating and maintenance costs and expenses,
including those which would normally be amortized over a period not to exceed
five (5) years. There shall also be included in Operating Expenses the cost
of any capital improvement made to the Village Retail Center by Landlord after
the Commencement Date of this Lease which is required under any governmental
law or regulation that was not applicable to the Village Retail Center at the
time it was constructed, amortized over such period as Landlord shall
reasonably determine, together with interest at the rate of 12% per annum on
the unamortized balance. Any expenses for fire, ambulance or police services
that can reasonably be allocated to a specific tenant or tenants shall be
charged to same. Landlord shall not have the right to charge twice for the
same goods or services.
C. "Cost Saving Capital improvement" shall mean any equipment,
device or other improvement acquired subsequent to commencement of
construction of the Complex alld/or Village Retail Center (i) to achieve
economies in the operation, maintenance and repair of the Buildings or other
portions of the Village Retail Center or Complex, (ii) to comply with any
energy conservation controls or guidelines more particularly described in
Section 10.2 or (iii) to comply with any other governmental requirements with
respect to the Village Retail Center or Complex, including without limitation,
fire, health, safety or construction requirements, if the cost of any such
Cost Saving Capital Improvement thereof is capitalized on the books of
Landlord in accordance with generally accepted accounting and management
practices.
D. "Cost Saving Capital Improvement Amortization" shall mean
the amount determined by multiplying the actual cost of each Cost Saving
Capital Improvement acquired by Landlord by the constant annual percentage,
including interest at the rate of -twelve percent (12%) per annum, required to
fully amortize such cost over the useful life of the Cost Saving Capital
Improvements (as reasonably estimated by Landlord at the time of acquisition).
The Cost Saving Capital Improvement Amortization shall be computed, allocated
and charged to the Buildings and the village Retail Center in accordance with
generally accepted accounting and management practices and shall be charged to
Tenant as an amount per square foot of Rentable Area.
8.2 Intentionally deleted.
8.3 Tenant shall be liable for all taxes levied against personal
property and trade fixtures placed by Tenant in the Premises. If any such
taxes are levied against Landlord or Landlord's property and if Landlord
elects to pay the same or if the assessed value of Landlord's property is
increased by inclusion of personal property and trade fixtures placed by
Tenant in the Premises and Landlord elects to pay the taxes based on such
increase, Tenant shall pay to Landlord upon demand that part of such taxes for
which Tenant is primarily liable hereunder.
8.4 Intentionally deleted.
8.5 Intentionally deleted.
9. TENANT'S INSURANCE
9.1 Tenant shall at all times during the term hereof and at its own
cost and expense procure and continue commercial general liability insurance,
products liability insurance, worker's compensation insurance and bodily
1852:18521430
B. "Tenant's Proportionate Share"
shall be a fraction
the
numerator
of which is the total Rentable Area
in
the Premises and
the
denominator of which is the total Rentable Area of
the
buildings to which
the
specific
goods or services in question are being
furnished as determined
by
Landlord.
The maximum proportionate share shall be a
fraction the numerator
of which
is the total Rentable Area in the Premises
arid the denominator
of
which is
the total Rentable Area of the building
in
which the Premises
are
located.
C. "Cost Saving Capital improvement" shall mean any equipment,
device or other improvement acquired subsequent to commencement of
construction of the Complex alld/or Village Retail Center (i) to achieve
economies in the operation, maintenance and repair of the Buildings or other
portions of the Village Retail Center or Complex, (ii) to comply with any
energy conservation controls or guidelines more particularly described in
Section 10.2 or (iii) to comply with any other governmental requirements with
respect to the Village Retail Center or Complex, including without limitation,
fire, health, safety or construction requirements, if the cost of any such
Cost Saving Capital Improvement thereof is capitalized on the books of
Landlord in accordance with generally accepted accounting and management
practices.
D. "Cost Saving Capital Improvement Amortization" shall mean
the amount determined by multiplying the actual cost of each Cost Saving
Capital Improvement acquired by Landlord by the constant annual percentage,
including interest at the rate of -twelve percent (12%) per annum, required to
fully amortize such cost over the useful life of the Cost Saving Capital
Improvements (as reasonably estimated by Landlord at the time of acquisition).
The Cost Saving Capital Improvement Amortization shall be computed, allocated
and charged to the Buildings and the village Retail Center in accordance with
generally accepted accounting and management practices and shall be charged to
Tenant as an amount per square foot of Rentable Area.
8.2 Intentionally deleted.
8.3 Tenant shall be liable for all taxes levied against personal
property and trade fixtures placed by Tenant in the Premises. If any such
taxes are levied against Landlord or Landlord's property and if Landlord
elects to pay the same or if the assessed value of Landlord's property is
increased by inclusion of personal property and trade fixtures placed by
Tenant in the Premises and Landlord elects to pay the taxes based on such
increase, Tenant shall pay to Landlord upon demand that part of such taxes for
which Tenant is primarily liable hereunder.
8.4 Intentionally deleted.
8.5 Intentionally deleted.
9. TENANT'S INSURANCE
9.1 Tenant shall at all times during the term hereof and at its own
cost and expense procure and continue commercial general liability insurance,
products liability insurance, worker's compensation insurance and bodily
1852:18521430
injury liability and property damage liability insurance adequate to protect
Landlord against liability for injury to or death of any person in connection
with the use, operation or condition of the Premises. Such insurance at all
times shall be in an amount of not less than Three Million Dollars
($3,000,000), combined single limit. If, in a survey conducted no more
frequently than each two (2) years, in the opinion of Landlord's lender or of
the insurance broker retained by Landlord, the amount of products liability,
public liability and property damage insurance coverage at that time is not
adequate, Tenant shall increase the insurance coverage as required by either
Landlord's lender or Landlord's insurance broker. alie public liability
insurance required shall include dram shop liability insurance if the Premises
serve alcoholic beverages.
9.2 Tenant shall at all times during the term hereof maintain in
effect policies of insurance covering (i) its leasehold improvements
(including any alterations, additions or improvements as may be made by Tenant
pursuant to the provisions of Section 18 hereof) trade fixtures, merchandise
and other personal property from time to time in, on or upon the Premises, in
an amount not less than one hundred percent (100%) of their actual replacement
cost from time to time during the term of this Lease, providing protection
against any peril included within the classification "Fire and Extended
Coverage," together with insurance against sprinkler damage, vandalism and
malicious mischief and (ii) all plate glass on the Premises. The proceeds of
such insurance, so long as this Lease remains in effect, shall be used for the
repair or replacement of the property so insured. Upon termination of this
Lease, the proceeds under (i) above, shall be paid to Tenant, and the proceeds
under (ii) above, shall be paid to Landlord. The full replacement value of
the items to be insured under this Section 9.2, shall be determined by the
company issuing the insurance policy at the time the policy is initially
obtained, and shall be increased as reasonably requested by Landlord from time
to time.
9.3 All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies, qualified to do business in the
State of Texas and reasonably acceptable to Landlord. Each policy shall name
Landlord and Landlord's lender as additional insureds, as its interest may
appear, and copies of all policies, or certificates evidencing the existence
and amounts of such insurance, shall be delivered to Landlord by Tenant at
least thirty (30) days prior to Tenant's opening for business in the Premises.
No such policy shall be cancelable except after thirty (30) days written
notice to Landlord. Tenant sha.11, at least ten (10) days prior to the
expiration of any such policy, furnish Landlord with renewals or "binders"
thereof, or Landlord may, but shall riot be obligated to, order such insurance
and charge the cost thereof to Tenant, which amount shall be payable by Tenant
upon demand. Any policy may be carried under so-called "blanket coverage"
form of insurance policies, provided any such blanket policy specifically
provides that the amount of insurance coverage required hereunder shall in no
way be prejudiced by other losses covered by the policy. Neither the issuance
of any such insurance policy nor the minimum limits specified in this Section
with coverage shall be deemed to limit or restrict in any way Tenant's
liability arising under or out of this Lease.
9.4 To the extent such waivers are obtainable from insurance carriers,
Landlord and Tenant hereby waive their respective rights of recovery against
the other for injury or loss due to hazards covered by insurance containing
such a waiver of subrogation clause or endorsement, and each releases the
other from any direct or consequential damage to the property of the other or
under its control, including its interest in the Premises, the Building or any
other portion of the Complex by fire or other casualty (including liability
for loss of rent) to the extent such damage is insured against under a policy
or policies of insurance, whether or not such damage may be attributable to
the negligence or act of either party or its respective agents, invitees,
contractors, servants or employees. Such waiver shall in no way be construed
or interpreted to limit or restrict any indemnity or other waiver made by
Tenant under the -terms of this Lease.
10. UTILITIES AND SERVICES
10.1 Intentionally deleted.
10.2 Landlord shall not be liable for any failure to furnish any
services or utilities when such failure is caused by acts of God, accidents,
1.852:18521430 -8-
breakage, repairs, strikes, lock -outs, other labor disputes and, in order to
make repairs, alterations or improvements to the Premises or any portion of
the Complex, the inability to obtain an adequate supply of fuel, water,
electricity, labor or other supplies or for any other condition beyond
Landlord's reasonable control, including without limitation, any governmental
energy conservation program, and Tenant shall not be entitled to any damages
nor shall such failure relieve Tenant of the obligation to pay the full rent
reserved hereunder or constitute or be construed as a constructive or other
eviction of Tenant. In the event any governmental entity promulgates or
revises any statute, ordinance or building, fire or other code or imposes
mandatory or voluntary controls or guidelines on Landlord or the Complex or
any part thereof, relating to the use or conservation of energy, water, gas,
light or electricity or the reduction of automobile or other emissions or the
provision of any other utility or service provided with respect to this Lease,
or in the event Landlord is required or elects to make alterations to any part
of the Complex in order to comply with such mandatory or voluntary controls or
guidelines, Landlord may, in its sole discretion, comply with such mandatory
or voluntary controls or guidelines or make such alterations to any part of
the Complex. Such compliance and the making of such alterations shall in no
event entitle Tenant to any damages, relieve Tenant of the obligation to pay
the full rent reserved hereunder or constitute or be construed as a
constructive or other eviction of Tenant.
11. INDEMNITY
Tenant hereby agrees to indemnify, protect, defend and hold Landlord
harmless from and against any and all claims arising from Tenant's
construction on or use of the Premises for the conduct of its business or from
any activity, work, or things done, permitted or suffered by Tenant and its
agents and employees in or about the Premises, and further agrees to
indemnify, protect, defend and hold Landlord harmless from and against any and
all claims arising from any breach or default in the performance of any
obligation on Tenant's part to be performed under the terms of this Lease, or
arising from any act or negligence of Tenant, or any of its agents,
contractors or employees, and from and against all costs, attorneys' fees,
expenses and liabilities incurred in or about any such claim or any action or
proceeding brought thereon; and in case any action or proceeding be brought
against Landlord by reason of any such claim, Tenant, upon notice from
Landlord, shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property or injury to persons,
in, upon or about the Premises from any cause, except Landlord's sole
negligence, and Tenant hereby waives all claims in respect thereof against
Landlord, except for claims arising out of Landlord's sole negligence.
12. EXEMPTION OF LANDLORD FROM LIABILITY
Landlord is hereby agreed not to be liable for injury or damage which
may be sustained by the person, goods, wares, merchandise or property of
Tenant, its employees, invitees or customers, or by any other person in or
about the Premises, caused by or resulting from fire, steam, electricity, gas,
water or rain which may leak or flow from or into any part of the Premises, or
from the breakage, leakage, obstruction or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures
of the same, whether the said damage or injury results from conditions arising
upon the Premises or from other sources. Landlord is hereby agreed not to be
liable for any damages arising from any act or neglect of any other tenant of
the Complex. In no event shall the liability of Landlord arising out of this
Lease exceed Landlord's interest in the village Retail Center.
13. QUIET POSSESSION
Landlord agrees that Tenant, upon paying the rent and performing the
covenants and conditions of this Lease, may quietly have, hold and enjoy the
demised Premises during the term hereof.
14. ESTOPPEL CERTIFICATE
Tenant shall at any time and from time to time upon not less than ten
(10) days prior notice by Landlord, execute, acknowledge and deliver to
Landlord a statement in writing certifying that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same
1852:18521.430
is in full force and effect as modified and stating the modifications), the
dates to which the Minimum Annual Rental has been paid in advance, if any,
stating whether or not to the best knowledge of Tenant, Landlord is in default
in the performance of any covenant, agreement or condition contained in this
Lease and, if so, specifying each such default of which Tenant may have
knowledge and containing any other information and certifications which
reasonably may be requested by Landlord or the holder of any Underlying
Mortgage. Any such statement delivered pursuant to this Section may be relied
upon by any prospective purchaser of the fee of the Village Retail Center or
any mortgagee, ground lessor or other like encumbrancer thereof or any
assignee of any such encumbrancer upon the Village Retail Center.
Failure of Tenant to execute, acknowledge and deliver such estoppel
certificate in not more than ten (10) days from receipt of the foregoing
notice shall, without further act by any party, constitute Tenant's
authorization to Landlord to prepare and deliver such estoppel certificate on
Tenant's behalf which certificate shall be true and correct to the best of
Landlord's knowledge. Tenant agrees to indemnify Landlord from all loss, cost
and expense, including attorney's fees, for any claims against Landlord
arising from any estoppel certificate given by Landlord.
15. REPAIRS AND MAINTENANCE
15.1 Tenant shall., during the term of this Lease and at Tenant's cost,
keep the Premises and all fixtures and equipment installed therein in good
order, condition and repair, including the interior walls; all windows, doors,
door frames, and door closures; all plate glass, storefronts and showcases;
all carpeting and other floor covering; all electrical equipment; all heating,
ventilating and air conditioning equipment; and all plumbing and sprinkler
systems, if any, installed therein; and shall as necessary, or when required
by governmental authority, subject to the provisions of Article 16 herein,
make modifications or replacements thereof. Landlord shall have no
obligations to repair or maintain the Premises or improvements constructed
therein except as otherwise provided in this Lease. Tenant expressly agrees
that the use of roof areas shall be limited to ingress for maintenance
purposes only and only with Landlord's prior written consent, and that said
roof areas shall not be used for storage of inventory or for any other use.
15.2 If Tenant refuses or neglects to make repairs and/or maintain the
Premises, or any part thereof, in a manner reasonably satisfactory to
Landlord, Landlord shall have the right, after ten (10) days written notice
(except in case of emergency), but shall not be obligated, to make such
repairs or perform such maintenance on behalf of or for the account of Tenant.
In such event, such work shall be paid for by Tenant promptly upon demand.
15.3 Landlord shall keep in good order, condition and repair the
foundations and structural elements of the exterior walls (excluding the
interior of all walls and any exterior or interior of any windows, doors,
plateglass and display windows) of the Buildings.
15.4 Tenant hereby grants to Landlord the right to enter upon the
Premises at any time in order to make emergency repairs.
15.5 Tenant agrees upon the expiration or earlier termination of this
Lease to surrender the Premises to Landlord in good order, condition and
repair, ordinary wear and tear excepted. Tenant hereby waives the right to
make repairs at Landlord's expense under the provisions of any law permitting
repairs by a tenant at the expense of the Landlord to the extent allowed by
law, in that Landlord and Tenant have by this Lease made specific provision
for such repairs and have defined their respective obligations relating
thereto.
16. ALTERATIONS
16.1 Tenant shall make no alterations, repairs, additions or
improvements in, to or about the Premises (collectively "Tenant Alterations"),
without the prior written consent of Landlord, and Landlord may impose as a
condition to such consent such requirements as Landlord, in its sole
discretion, may deem necessary or desirable, including without limitation, (a)
the right to approve the plans and specifications for any work, (b) the right
to require insurance satisfactory to Landlord, (c) the right to require
1852:18521430 _ 10-
security for the full payment for any work, including performance bonds, (d)
requirements as to the manner in which or the time or times at which work may
be performed and (e) the right to approve the contractor or contractors to
perform Tenant Alterations. All Tenant Alterations shall be completed in
accordance with Landlord's requirements and all applicable rules, regulations
and requirements of governmental authorities and insurance carriers. Tenant
shall pay to Landlord Landlord's actual costs for reviewing and inspecting all
Tenant Alterations to assure full compliance with all of Landlord's
requirements. If requested by Landlord, Tenant shall provide Landlord with
copies of all contracts, receipts, paid vouchers, arid any other documentation
in connection with the construction of such Tenant Alterations. Tenant shall
promptly pay all costs incurred in connection with all Tenant Alterations and
shall not permit the filing of any mechanic's lien or other lien in connection
with any Tenant Alterations. if a mechanic's lien or other lien is filed
against the Premises or the Complex or any portion thereof as a result of
Tenant Alterations by Tenant, Tenant shall discharge or cause to be discharged
such lien within ten (10) days after 'Tenant receives notice of the filing
thereof. Any increase in any tax, assessment or charge levied or assessed as
a result of any Tenant Alterations shall be payable by Tenant in accordance
with Section 8.2 hereof.
16.2 All Tenant Alterations attached to, or built into, the Premises,
including without limitation, floor coverings, draperies, wall coverings,
paneling, molding, doors, vaults, plumbing systems, electrical systems,
mechanical systems, lighting systems, sound insulation equipment,
communication systems and outlets for the systems mentioned above arid for all
telephone, radio, telegraph and television purposes, and any special ceiling
installations, shall become the property of Landlord and shall be surrendered
with the Premises, as a part thereof, at the end of the term of this Lease;
provided, however, Landlord may, by written notice to Tenant at least thirty
(30) days prior to the end of the term of this Lease, require Tenant to remove
any Tenant Alterations designated by Landlord to be removed, and to repair any
damage to the Premises caused by such removal, all at Tenant's sole expense.
16.3 Any articles of personal property, including business and trade
fixtures not attached to, or built into, the Premises, machinery and
equipment, freestanding cabinet work, furniture and movable partitions, which
were installed by Tenant in the Premises at Tenant's sole expense arid which
were not installed in connection with a credit or allowance granted by
Landlord or in replacement for an item which Tenant would not have been
entitled to remove, shall be and remain the property of Tenant and may be
removed by Tenant at any time durinq the term of this Lease as long as Tenant
is not in default hereunder and provided that Tenant repairs any damage to the
Premises, the Village Retail Center or any other part of the Complex caused by
such removal.
17. RIGHT OF ENTRY
After prior oral notice to Tenant, Landlord and its agents and
representatives shall have the right, at all reasonable times, but in such
manner as to cause as little disturbance to Tenant as reasonably practicable,
to enter the Premises for purposes of inspection, to post notices of
non -responsibility, to protect the interest of Landlord in the Premises, to
supply any services to be provided by Landlord hereunder, to perform all
required or permitted work therein, including the erection of scaffolding,
props and other mechanical devices for the purpose of making alterations,
repairs or additions to the Premises or any portion of the Village Retail
Center which are provided for in this Lease or required by law. Landlord and
its agents and representatives shall also have the right, at all reasonable
times, to show the Premises to prospective tenants (during the last two (2)
years of the term of this Lease), lessors of superior leases, mortgagees,
prospective mortgagees or prospective purchasers of the Village Retail Center
or Complex. No such entry shall be construed under any circumstances as a
forcible or unlawful entry into, or a detainer of, or an eviction of Tenant,
and Tenant hereby waives any claim against Landlord or its agents or
representatives for damages for any injury or inconvenience to or interference
with, Tenant's business or quiet enjoyment of the Premises.
18. DAMAGE AND DESTRUCTION
18.1 In the event the Premises are damaged by fire or other casualty
and if said damage can be fully repaired within one hundred eighty (180) days
1852:18521430 - 11-
after notice to Landlord of the occurrence of the damage, Landlord shall
repair such damage with reasonable diligence after receipt of insurance
proceeds and in a manner consistent with the provisions of any Underlying
Mortgage, as hereinafter defined. In the event any part of -the Premises is
rendered untenantable for the conduct of Tenant's business, the Minimum Annual
Rental shall be reduced and abated in proportion to the part of the Premises
which is so rendered untenantable until the damaged portion of the Premises
have been made tenantable for the conduct of Tenant's business or until the
term of this Lease expires or terminates, whichever occurs first; provided
that ( a ) there shall be no abatement of rent with respect to any portion of
the Premises which is rendered unusable for a period of five (5) days or less,
(b) there shall be no abatement of rent if Landlord provides other space in
the Village Retail Center or the Complex to Tenant which is reasonably suited
for the temporary conduct of Tenant's business, (c) there shall be no
abatement of rent whatsoever with respect to any damage caused in whole or in
part by the negligence or willful act of Tenant, its agents, employees,
contractors, licensees or invitees.
18.2 If the Premises are damaged by fire or other casualty so that the
repair of the Premises cannot, in Landlord's reasonable opinion, be completed
within one hundred eighty (180) days after notice to Landlord of the
occurrence of the damage, Landlord shall have the option, to be exercised by
written notice to Tenant within thirty (30) days after Landlord receives
notice of the occurrence of the damage, either (a) to make such repairs within
a reasonable time after receipt of insurance proceeds, in which event this
Lease shall continue in full force and effect and the rent shall be abated in
the manner and to the extent provided in Section 18.1 above or (b) to
terminate this Lease as of a date not less than thirty (30) days or more than
sixty (60) days after Landlord's notice to Tenant.
18.3 If the village Retail Center is totally destroyed or is so
extensively damaged that the repair thereof cannot, in Landlord's reasonable
opinion, be completed within one hundred eighty (180) days after the
occurrence of the damage or destruction, or if substantial alteration or
reconstruction of the Village Retail Center is required, in Landlord's
reasonable opinion, as a result of the damage, then Landlord shall have the
option, to be exercised by written notice to Tenant within ninety (90) days
after the occurrence of the damage or destruction, either (a) to terminate
this Lease as of a date not less than thirty (30) days nor more than sixty
(60) days after Landlord's notice to Tenant or (b) to repair and rebuild the
Village Retail Center within a reasonable time after receipt of insurance
proceeds, in which event this Lease shall continue in full force and effect.
18.4 In the event Landlord terminates this Lease pursuant to the terms
of Section 18.2 or 18.3, this Lease and the estate and interest of the Tenant
in the Premises shall terminate and expire on the date specified in Landlord's
notice of termination and the rent payable hereunder shall be prorated as of
such date, subject to rent abatement, if any, to the extent provided in
Section 18.1.
18.5 Subject to Section 12 hereof, nothing contained in Sections 18.1.,
18.2 and 18.3 shall relieve, discharge or any way affect Tenant's liability to
Landlord in connection with any damage or destruction to the Premises, the
Village Retail Center or any other portion of the Complex arising out of the
negligent or willful acts or omissions of Tenant, its agents, employees,
contractors, licensees and invitees.
18.6 Landlord shall not be liable for any loss of business,
inconvenience or annoyance arising from any repair or restoration of any
portion of the Premises, the Village Retail Center or other portions of the
Complex as a result of any damage from fire or other casualty. Furthermore,
in the event of such damage from fire or other casualty, Landlord shall have
no obligation to expend any amount for the repair of the Premises.
18.7 The provisions of this Lease, including this Section 18 constitute
an express agreement between Landlord and Tenant with respect to any and all
damage to, or destruction of, all or any part of the Premises, the Village
Retail Center or any other portion of the Complex, and any statute, caselaw,
or regulation of the State of Texas with respect to any rights or obligations
concerning damage or destruction in the absence of an express agreement
between the parties, and any other statute, case or regulation, now or
hereafter in effect, shall to the maximum extent permitted by law have no
1852!18521430 -12
application to this Lease or any damage or destruction to all or any part of
the Premises, the Village Retail Center, or any portion of the Complex.
19. EMINENT DOMAIN
19.1 If all of the Premises are condemned or taken in any manner for
public or quasi -public use or are sold or transferred to the condemning party
either under the threat of condemnation or while legal proceedings are
pending, this Lease shall automatically terminate as of the date of the
vesting of title as a result of such condemnation or other taking. If a part
of the Premises are so condemned, taken, sold or transferred, this Lease shall
automatically terminate as to the portion of the Premises so taken as of the
date of t ' lie vesting of title as a result of such condemnation or taking. If
such portion of the Village Retail Center or Complex is condemned or otherwise
taken, sold or transferred, so as to require, in the opinion of Landlord, a
substantial alteration or reconstruction of the remaining portions thereof,
this Lease may be terminated by Landlord, as of the date of the vesting of
title as a result of such condemnation or taking, by written notice to Tenant
within sixty (60) days following notice to Landlord of the date on which said
vesting will occur. If such portion of the Premises is taken, sold or
transferred, as to render the remaining portion untenantable and unusable by
Tenant, this Lease may be terminated by Tenant as of the date of the vesting
of title as a result of such condemnation or taking, by written notice to
Landlord within sixty (60) days following notice to Tenant of the date on
which said vesting will occur.
19.2 Landlord shall be entitled to the entire award in any condemnation
proceeding or other proceeding for taking for public or quasi -public use,
including without limitation, any award made for the value of the leasehold
estate created by this Lease. No award for any partial or entire taking shall
be apportioned, and Tenant hereby assigns to Landlord any award which may be
made in such condemnation or other taking, together with any and all rights of
Tenant now or hereafter arising in or to the same or any part thereof;
provided, however, that nothing contained herein shall be deemed to give
Landlord any interest in or to require Tenant to assign to Landlord any award
made to Tenant for its relocation expenses or the taking of personal property
and fixtures belonging to Tenant.
19.3 In the event of a partial condemnation or other taking which does
not result in a termination of this Lease as to the entire Premises, the
Minimum Annual Rental shall be abated in proportion to the portion of the
Premises taken by condemnation or other taking.
19.4 If all or any portion of the Premises are condemned or otherwise
taken for public or quasi -public use for a limited period of time, this Lease
shall remain in full force and effect and Tenant shall continue to perform all
of the terms, conditions and covenants of this Lease, including without
limitation, the payment of Minimum Annual Rental and all other amounts
required hereunder. Tenant shall be entitled to receive the entire award made
in connection with any such temporary condemnation or other taking
attributable to any period within the term of this Lease. Landlord shall be
entitled to the entire award for any such -temporary coridemnation or other
taking which relates to a period after the expiration of the term of this
Lease. Tenant shall restore the Premises as nearly as possible to the
condition prior to the condemnation or other taking, at Tenant's sole cost and
expense; provided that, Tenant shall receive the portion of the award
attributable to such restoration.
19.5 This Section 19 constitutes the total agreement between the
parties regarding condemnation.
20. ASSIGNMENT AND SUBLETTING
20.1 Tenant shall not assign this Lease, or allow it to be assigned, in
whole or in part, directly or indirectly, voluntarily or by operation of law
or otherwise (including without limitation by transfer of a majority interest
of stock, merger or dissolution) or mortgage or pledge the same, or permit the
Premises to be occupied or used by anyone other than Tenant, or sublet the
Premises, or any part thereof, without the prior written consent of Landlord.
No assignee or sublessee of the Premises or any portion thereof may assign or
sublet the Premises or any portion thereof.
1852:18521430 -13-
20.2 If Tenant desires to assign or sublet all or any part of the
Premises, it shall so notify Landlord at least sixty (60) days in advance of
the date on which Tenant desires to make such assignment or sublease. Tenant
shall provide Landlord with a copy of the proposed assignment or sublease, and
such information as Landlord might request concerning the proposed sublessee
or assignee to allow Landlord to make informed judgments as to the financial
condition, reputation, operations and general desirability of the proposed
subtenant(s) or assignee(s). Within thirty (30) days after Landlord's receipt
of Tenant's proposed assignment or sublease, and all required information
concerning the proposed subtenant(s) or assignee(s), Landlord shall in its
sole discretion have the option to:
a. Cancel the Lease as to the Premises or portion thereof
proposed to be assigned or sublet; or,
b. Consent to the proposed assignment or sublease, in which
event, however, if the rent due and payable by any assignee or
sublessee tinder any such permitted assignment or sublease (or
a combination of the rent payable under such assignment or
sublease plus any bonus or any other consideration therefor or
any payment, incident thereto) exceeds the Rent payable under
the Lease for such space, Tenant shall pay to Landlord
seventy-five percent (750) of such excess rent and other
excess consideration within ten (10) days following receipt
thereof by Tenant; or,
c. Refuse its consent to the proposed assignment or sublease,
which option shall be deemed to be elected unless Landlord
gives Tenant written notice providing otherwise.
20.3 No consent by Landlord to any assignment or sublease by Tenant
shall relieve Tenant of any obligation to be performed by Tenant under this
Lease, whether arising before or after the assignment or sublease. The
consent by Landlord to any assignment or sublease shall not relieve Tenant
from the obligation to obtain Landlord's express writ -ten consent to any other
assignment or sublease. Any assignment or sublease which is not in compliance
with this Section 20 shall be voidable and, at the option of Landlord, shall
constitute a material default by Tenant under this Lease. The acceptance of
rent by Landlord from a proposed assignee or sublessee shall not constitute
the consent to such assignment or sublease by Landlord.
20.4 Any sale or other transfer, including by consolidation, merger or
reorganization, of a majority of the voting stock of Tenant, if Tenant is a
corporation, or any sale or other transfer of a majority in interest (whether
of profits, losses, capital or voting power) or a majority of the persons
composing the manager of the partnership, if Tenant is a partnership, shall be
an assignment for purposes of this Section 20, if the leasehold estate of
Tenant under this Lease constitutes all or substantially all of the assets of
Tenant as of the date of the sale or other transfer.
20,5 Each assignee, sublessee, mortgagee, pledgee, or other transferee,
other than Landlord, shall assume, as provided in this Section 20.5, all
obligations of Tenant under this Lease (including without limitation those
contained in this Section 20 on subletting, assignment, transfer,
hypothecation, sale and encumbrance), and shall be and remain liable jointly
and severally with Tenant for the payment of the rent and the obligation to
maximize percentage rent, and for the performance of all the terms, covenants,
conditions and agreements herein contained on Tenant's part to be performed
for the term of this Lease; provided, however, that the assignee, sublessee,
mortgagee, pledgee or other transferee shall be liable to Landlord for rent
only in the amount set forth in the assignment or sublease. No assignment
shall be binding on Landlord unless the assignee or Tenant shall deliver to
Landlord a counterpart of the assignment and an instrument in recordable form
which contains a covenant of assumption by the assignee satisfactory in
substance and form to Landlord, consistent with the requirements of this
Section 20.5, but the failure or refusal of the assignee to execute such
instrument of assumption shall not release or discharge the assignee from its
liability as set forth above.
20.6 If this Lease
provisions of the Federal
subsequently amended (the
is assigned to any person
Bankruptcy Code, 11 U.S.C.
"Bankruptcy Code"), any
1852:18521430 -14-
or entity pursuant to the
section 101, et seq., as
and all monies or other
considerations payable or otherwise to be delivered in connection with such
assignment will be paid or delivered to Landlord, will be and remain the
exclusive property of Landlord and will not constitute property of Tenant
within the meaning of the Bankruptcy Code. Any and all monies or other
considerations constituting Landlord's property under the preceding sentence
not paid or delivered to Landlord will be held in trust for the benefit of
Landlord and be promptly paid to or turned over to Landlord. For purposes of
Section 365(f) (2) of the Bankruptcy Code "adequate assurances of future
performance" will include, but not be limited to, a security deposit, net
worth, and creditworthiness equal to that of Tenant on the date of this Lease.
Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, will be deemed without further act or deed
to have assumed all of the obligations arising under this Lease on and after
the date of such assignment. Any such assignee will upon demand execute and
deliver to Landlord an instrument confirming such assumption.
21. TRANSFER OF LANDLORD'S INTEREST
21.1 In the event of any sale or other transfer of Landlord's interest
in the Village Retail Center, other than a transfer for security purposes
only, the Landlord shall be automatically relieved of any and all obligations
and liabilities on the part of Landlord accruing from and after the date of
such transfer.
21.2 Landlord shall have the unrestricted right to transfer, in whole
or in part, its interest in the Village Retail Center, the building, Project,
or Complex without Tenant approval.
22. DEFAULTS AND REMEDIES
22.1 The occurrence of any of the following shall constitute a material
default and breach of this Lease by Tenant:
(a) The failure by Tenant to pay the rent or make any other
payment required to be made by Tenant hereunder as and when due.
(b) The abandonment or vacation of the Premises by Tenant or the
cessation of the conduct of business by Tenant from the Premises.
(c) The failure by Tenant to observe or perform the provisions
of Section 4 where such failure continues and is not remedied within
forty-eight (48) hours after notice thereof from Landlord to Tenant.
(d) The failure of Tenant to observe or perform the provisions
of Section 16 where such failure continues and is not remedied within
forty-eight (48) hours after notice thereof by Landlord to Tenant, provided
however, if such default cannot reasonably be cured within such period, Tenant
shall not be in default if Tenant shall within such period commence such cure
and diligently prosecute the same to completion within ten (10) days after the
notice.
(e) Any attempted assignment or subletting of part or all of the
Premises by Tenant in contravention of Section 20.
(f) The failure by Tenant to observe or perform any other
provision of this Lease, including but not limited to the Rules and
Regulations attached hereto as Exhibit "E," to be observed or performed by
Tenant, where such failure continues for thirty (30) days after notice thereof
by Landlord to Tenant; provided, however, that if the nature of such default
is such that the same cannot reasonably be cured within such thirty -day (30)
period, Tenant shall not be deemed to be in default if Tenant shall within
such period commence such cure and thereafter diligently prosecute the same to
completion.
(g) Any action taken by or against Tenant pursuant to any
statute pertaining to bankruptcy or insolvency or the reorganization of Tenant
(unless, in the case of a petition filed against Tenant, the same is dismissed
within thirty (30) days); 'the making by Tenant of any general assignment for
the benefit of creditors; the appointment of a trustee or receiver to take
possession of all or any portion of Tenant's assets located at the Premises or
of Tenant's interest in this Lease, where possession is not restored to Tenant
1852:18521430 -15-
within thirty (30) days; or the attachment, execution, or other judicial
seizure of all or any portion of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where such seizure is not discharged within
thirty (30) days.
22.2 In the event of any such default by Tenant, then, in addition to
any other remedies available to Landlord at law, in equity or as provided
specifically herein, which remedies are cumulative, Landlord shall have the
immediate option to terminate this Lease and all rights of Tenant hereunder by
giving Tenant five (5) days written notice of such election to terminate. In
the event Landlord shall elect to so terminate this Lease, Landlord may
recover from Tenant:
(a) The cost of recovering the Premises; plus
(b) The unpaid rent earned at the time of termination plus
interest thereon; Plus
(c) Late charges on unpaid rent and accrued interest thereon;
plus
(d) The present worth of the balance of the rent for the
remainder of the term; plus
(e) Cost of reletting and refurbishing the Premises; and
(f) Any other reasonable amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease.
The term "rent" or "rental" as used herein shall be deemed to be and to
mean the Minimum Annual Rental, rent adjustments pursuant to Sections 6.3, 7
and 8 and all other amounts required to be paid by Tenant pursuant to the
terms of this Lease. All such amounts shall be computed on the basis of the
monthly amount thereof payable on the date of Tenant's default; except that
Percentage Rental shall be computed on the basis of the monthly average of all
Percentage Rental received by or payable to Landlord during the period that
Tenant was conducting Tenant's business in the Premises in the manner and to
the extent required by this Lease, or on the basis of the monthly amount
thereof payable on the date of Tenant's default, if greater.
22.3 In the event of any such default by Tenant, Landlord shall also
have the right, with or without terminating this Lease, to reenter the
Premises and remove all persons and property therefrom by summary proceedings
or otherwise; such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant, provided Landlord
shall have a lien against all personal property located in the Premises in the
amount which is due Landlord hereunder, which lien may be satisfied out of
proceeds of the public sale of such personal property by Landlord.
22.4 In the event of the vacation or abandonment of the Premises by
Tenant, or in the event that Landlord elects to reenter as provided in
Section 22.3 or takes possession of the Premises pursuant to legal proceeding
or pursuant to any notice provided by law, and if Landlord does not elect to
terminate this Lease, then Landlord may from time to time, without terminating
this Lease, either recover all rent as it becomes due or relet the Premises or
any part thereof for such term or terms and at such rent and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable,
with the right to make alterations and repairs to the Premises.
In the event that Landlord shall elect to so relet, then rentals
received by Landlord from such reletting shall be applied: First, to the
payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any cost of such reletting including
without limitation broker's commissions, attorneys' fees, expenses of
remodeling the Premises required by reletting and like costs; third, to the
payment of the cost of any alterations and repairs to the Premises; fourth, to
the payment of rent due and unpaid hereunder; and the remainder, if any, shall
be held by Landlord and applied in payment of future rent as the same may
become due and payable hereunder. Should that portion of such rentals
received from such reletting during any month, which is applied to the payment
of rent hereunder, be less than the rent payable during that month by Tenant
1852:18521.430 -16-
hereunder, then Tenant shall pay such deficiency to Landlord. Such deficiency
shall be calculated and paid monthly. Tenant shall also pay to Landlord, as
soon as ascertained, any costs and expenses incurred by Landlord in such
reletting or in making such alterations and repairs not covered by the rentals
received from such reletting.
22.5 No reentry or taking possession of the Premises by Landlord
pursuant to this Section 22 shall be construed as an election to terminate
this Lease unless a written notice of such intention to be given to Tenant or
unless the termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any reletting without termination by Landlord
because of any default by Tenant, Landlord may at any time after such
reletting elect to terminate this Lease for any such default.
22.6 As used in this Section 22 and in Section 23, the term "Tenant"
shall be deemed to include all persons or entities named as Tenant under this
Lease, or each and every one of them. If this Lease has been assigned, the
term "Tenant", as used in this Section 22 and in Section 23 shall be deemed to
include both the assignee and the assignor.
23. BANKRUPTCY PRIOR TO COMMENCEMENT DATE
If, at any time prior to the Commencement Date, (i) any action is taken
by or against Tenant in any court pursuant to any statute pertaining to
bankruptcy or insolvency or the reorganization of Tenant, (ii) Tenant makes
any general assignment for the benefit of creditors, (iii) a trustee or
receiver is appointed to take possession of substantially all of Tenant's
assets or of Tenant's interest in this Lease, (iv) or there is an attachment,
execution or other judicial seizure of substantially all of Tenant's assets or
of Tenant's interest in this Lease, then this Lease shall ipso facto be
canceled and terminated and be of no further force or effect. In such event,
neither Tenant nor any person claiming through or under Tenant or by virtue of
any statute or of any order of any court shall be entitled to possession of
the Premises or any interest in this Lease and Landlord shall, in addition to
any other rights and remedies under this Lease, be entitled to retain any
rent, security deposit or other monies received by Landlord from Tenant as
liquidated damages.
24. SUBORDINATION
24.1 This Lease is subject and subordinate to all mortgages or trust
deeds (the "Underlying Mortgages") which may now or hereafter be executed
affecting the Village Retail Center and to all renewals, modifications,
consolidations, replacements and extensions of any such leases, mortgages or
trust deeds. This clause shall be self -operative and no further instrument of
subordination need be required by any mortgagee or beneficiary, affecting any
Underlying Mortgage in order to make such subordination effective. Tenant,
however, shall execute promptly any certificate or document that Landlord may
request to effectuate, evidence or confirm such subordination. If Tenant
fails to execute and deliver any such certificate or document, Tenant
irrevocably constitutes and appoints Landlord Tenant's special
attorney-in-fact to execute and deliver any such certificate or document.
24.2 If Landlord's interest in the Complex, Land and/or the Village
Retail Center is sold or conveyed upon the exercise of any remedy provided for
in any Underlying Mortgage, or otherwise by operation of law, the person or
entity succeeding to the interest of Landlord in the Complex, Land and/or the
Village Retail Center (a) shall not be liable for any act or omission of
Landlord under this Lease occurring prior to such sale or conveyance, (b)
shall not be subject to any offset, abatement or reduction of rent because of
any default of Landlord under this Lease occurring prior to such sale or
conveyance, and (c) shall not be liable for the return of any security deposit
paid by Tenant except to the extent that the security deposit has actually
been paid to such person or entity.
24.3 Tenant covenants and agrees that if Landlord's interest tinder this
Lease is terminated by foreclosure of any mortgage or deed of trust, summary
proceedings, voluntary agreement or otherwise, this Lease will not be affected
in any way and Tenant will attorn to and recognize the owner which so acquires
Landlord's interest as Tenant's Landlord under this Lease, unless such owner
shall elect to terminate this Lease and the rights of Tenant hereunder.
Tenant further agrees to execute and deliver at any time upon request of
1852:18521430 -17-
Landlord or any person, entity, firm or corporation which shall succeed to the
interest of Landlord tinder this Lease, an instrument to evidence such
attornment.
24.4 Tenant shall give written notice to the holder of any underlying
Mortgage whose name and address have been previously furnished to Tenant of
(a) any act or omission by Landlord which Tenant asserts as giving Tenant the
right to terminate this Lease or to claim a partial or total eviction or any
other right or remedy under this Lease or provided by law and (b) of any other
matter or event with respect to which Tenant is required or permitted to give
written notice to Landlord.
25. SURRENDER OF PREMISES AND REMOVAL OF PROPERTY
25.1 The voluntary or other surrender of this Lease by Tenant, or a
termination hereof, shall not constitute a merger, and shall at the option of
Landlord, operate as an assignment to Landlord of any or all subleases or
subtenancies affecting the Premises.
25.2 Upon the expiration of the term of this Lease, or upon any earlier
termination hereof, Tenant shall quit and surrender possession of the Premises
to Landlord in as good order and condition as the Premises are now or
hereafter may be improved by Landlord or Tenant, reasonable wear and tear and
repairs which are Landlord's obligation excepted, and shall, without expense
to Landlord, remove or cause to be removed from the Premises all debris and
rubbish, all furniture, equipment, business and trade fixtures, freestanding
cabinet work, movable partitioning and other articles of personal property
owned by Tenant or installed or placed by Tenant at its expense in the
Premises, and all similar articles of any other persons claiming under Tenant
unless Landlord exercises its option to have any subleases or subtenancies
assigned to Landlord, and Tenant shall repair all damage to the Premises
resulting from such removal. Tenant shall indemnify and hold harmless
Landlord from and against any and all liability, damage, costs, fees
(including reasonable attorneys' fees) arising out of Tenant's failure to
vacate and surrender the Premises in a timely fashion, including any
compensable damages incurred by a subsequent tenant.
25.3 In the event of the expiration or termination of this Lease or
other reentry of the Premises by Landlord as provided in this Lease, any
property of Tenant not removed by Tenant upon the expiration of the term of
this Lease, or within forty-eight (48) hours after termination by reason of
Tenant's default, shall be considered abandoned and Landlord may remove any or
all of such property and dispose of the same in any manner or store the same
in a public warehouse or elsewhere for the account of, and at the expense and
risk of, Tenant. If Tenant shall fail to pay the costs of storing any such
property after it has been stored for a period of thirty (30) days or more,
Landlord may sell any or all of such property at public or private sale, in
such manner and at such times and places as Landlord, in its sole discretion,
may deem proper, without notice to or demand upon Tenant. In the event of
such sale, Landlord shall apply the proceeds thereof, first, to the cost and
expense of sale, including reasonable attorneys' fees; second, to the payment
of the cost of removal and storage; third, to the payment of any other sums
which may then or thereafter be due to Landlord from Tenant tinder any of the
terms of this Lease, and, fourth, the balance, if any, to Tenant.
25.4 All fixtures, equipment, alterations, additions, improvements
and/or appurtenances attached to or built into the Premises prior to or during
the term hereof, whether by Landlord at its expense or at the expense of
Tenant, or both, shall be and remain part of the Premises and shall not be
removed by Tenant at the end of the term of this Lease unless such removal is
required by Landlord pursuant to the provisions of Section 16 hereof. Such
fixtures, equipment, alterations, additions, improvements and/or appurtenances
shall include without limitation, floor coverings, draperies, wall coverings,
paneling, molding, doors, vaults, plumbing systems, electrical systems,
lighting systems, sound installation equipment, communication systems, and
outlets for the systems mentioned above and for all telephone, radio,
telegraph and television purposes, and any special flooring or ceiling
installations.
1852:18521430 _18-
26. HOLDING OVER
In the event Tenant holds over after the expiration of the term of this
Lease, with or without the express or implied consent of Landlord, such
tenancy shall be from month-to-month only, and not a renewal hereof or an
extension for any further term, and such month-to-month tenancy shall be
subject to each and every term, covenant and agreement contained herein;
provided, however, that Tenant shall pay as Minimum Annual Rental during any
holding over period, an amount equal to two times the Minimum Annual Rental
payable immediately preceding the expiration of the term of this Lease.
Nothing in this Section 26 shall be construed as a consent by Landlord to any
holding over by Tenant and Landlord expressly reserves the right to require
Tenant to surrender possession of the Premises upon the expiration of the term
of this Lease or upon the earlier termination hereof and to assert any remedy
in law or equity to evict Tenant and/or collect damages in connection with
such holding over.
27. LANDLORD'S RIGHT TO PERFORM
27.1 All covenants and agreements to be performed by Tenant under any
of the terms of this Lease shall be performed by Tenant at Tenant's sole
expense and without abatement of rent. If Tenant shall fail to observe and
perform any covenant, condition, provision or agreement contained in this
Lease or shall fail to perform any other act required to be performed by
Tenant, Landlord may, upon notice to Tenant, without obligation, and without
waiving or releasing Tenant from any default or obligations of Tenant, make
any such payment or perform any such obligation on Tenant's part to be
performed. All sums so paid by Landlord and all costs incurred by Landlord,
including attorneys' fees, together with interest at the highest rate
permitted by law shall be payable to Landlord on demand and Tenant covenants
to pay any such sums, and Landlord shall have (in addition to any other right
or remedy hereunder) the same rights and remedies in the event of the
non-payment thereof by Tenant as in the case of default by Tenant in the
payment of rent.
27.2 If Tenant shall fail to make any payment of rent within ten (10)
days after the date it is due under this Lease, Tenant shall pay to Landlord
as a late charge and in consideration of the additional costs incurred by
Landlord and the additional record keeping required to be performed by
Landlord, an additional sum equal to ten percent (10%) of the amount of rent
due and owing from Tenant. Furthermore, additional interest may be assessed
by Landlord against Tenant at the maximum interest rate that an individual is
permitted by law to charge. The assessment or payment of such late charge,
however, shall not excuse or be deemed to cure any default by Tenant
hereunder.
28. CHANGES IN THE COMPLEX
28.1 Subject to the provisions of Section 3, Landlord reserves the
right, in its sole discretion, and without obligation or liability to Tenant,
to at any time make such changes, alterations, additions, improvements or
replacements in or to the Village Retail Center and any other portion of the
Complex, and the fixtures and equipment thereof, as well as in service areas
or to the street entrances, halls, passages, courtyards, stairways, parking
areas or garages and any other improvement contained in the Village Retail
Center or in any other portion of the Complex.
28.2 Landlord may adopt any name for the Village Retail Center and/or
the Complex and Landlord reserves the right to change the name and/or the
address of the Village Retail Center and/or the Complex or any part thereof at
any time.
29. Intentionally deleted.
30. EXAMINATION OF LEASE
The submission of this instrument for signature by Tenant, Tenant's
agents or attorneys, does not constitute a reservation of, or an option to
lease, and this instrument shall not be effective or binding as a lease or
otherwise until its execution and delivery by both Landlord and Tenant.
1852:18521430 _19-
31. Intentionally deleted.
32. RULES AND REGULATIONS
The Rules and Regulations attached hereto as Exhibit "E" are hereby
incorporated herein and made a part of this Lease. Tenant agrees to abide by
and comply with each and every of said Rules and Regulations and any
amendments, modifications and/or additions thereto as may hereafter be adopted
by Landlord for the safety, care, security, good order and cleanliness of the
Premises, the Village Retail Center or any other portion of the Complex.
Landlord shall have the right to amend, modify or add to the Rules and
Regulations in its sole discretion. Landlord shall not be liable to Tenant
for any violation of any of -the Rules and Regulations by any other tenant or
for the failure of Landlord to enforce any of the Rules and Regulations.
33. NOTICES
Whenever under this Lease a provision is made for any demand, notice or
declaration of any kind or where it is deemed desirable or necessary by either
party to give or serve any such notice, demand or declaration to the other, it
shall be in writing and either served personally or sent by registered mail or
certified mail, return receipt requested, with postage prepaid, addressed as
set forth in Section 1.12. Either party may by like notice at any time and
from time to time designate a different address to which notices shall be
sent. Such notices, demands or declarations shall be deemed sufficiently
served or given for all purposes hereunder at the time they shall be mailed by
United States mail, as aforesaid.
34. ADVERTISING AND SIGNS
Tenant shall not (a) display within the Premises in a manner visible
from outside the Premises; nor (b) affix or maintain upon the glass panes and
supports of the show windows (and within 24 inches of any window), doors and
the exterior walls of the Premises, any signs, advertising placards, names,
insignia, trademarks, descriptive material or any other such like item or
items except such as shall have first received the written approval of the
Landlord as to size, type, color, location, copy, nature and display
qualities. Landlord hereby approves any legal notices approved by Tenant, its
Board of Alderman, Planning and zoning Commission or other commission, board
or committee of the Tenant. Anything to the contrary in this Lease
notwithstanding, the Tenant shall riot affix any sign to the roof or exterior
of the Premises without Landlord's prior written consent. In addition, no
advertising medium shall be utilized by Tenant which can be heard or
experienced outside the Premises, including without limiting the generality of
the foregoing, flashing lights, searchlights, loudspeakers, phonographs,
radios or television. Tenant shall not display, paint or place or cause to be
displayed, painted or placed, any handbills, bumper stickers or other
advertising devices on any vehicle parked in the parking area of the Complex,
whether belonging to Tenant, or to Tenant's agent, or to any other person, nor
shall Tenant distribute, or cause to be distributed, in the Complex, any
handbills or other advertising devices without the prior written consent of
Landlord. Without the prior written consent of Landlord, Tenant shall not use
the name "Solana" or any other name of the Complex or Village Retail Center
which may be designated by Landlord from time to time, except as an indication
of location in any advertising or promotional material.
35. Intentionally deleted.
36. Intentionally deleted.
37. MISCELLANEOUS
37.1 One or more waivers of a breach of any covenant, term or condition
of this Lease by either party shall not be construed by the other party as a
waiver of a subsequent breach of the same covenant, term or condition. The
consent or approval of either party to or of any act by the other party of a
nature that required consent or approval shall not be deemed to waive or
render unnecessary consent -to or approval of any subsequent act.
37.2 Nothing herein contained, either in the method of computing rent
or otherwise, shall create between the parties hereto, or be relied upon by
others as creating, any relationship of partnership, association, joint
1852:18521430 -20-
venture, or otherwise. The sole relationship of the parties hereto shall be
that of landlord and tenant.
37.3 The laws of the State of Texas shall govern the validity,
performance and enforcement of this Lease. Although the provisions of this
Lease were drawn by Landlord, this Lease shall not be construed either for or
against Landlord or Tenant, but this Lease shall be interpreted in accordance
with the general tenor of the language herein.
37.4 In the event that at any time during the term of this Lease either
Landlord or Tenant shall institute any action or proceeding against the other
relating to the provisions of this Lease, or any default thereunder, then, and
in that event, the unsuccessful party in such action or proceeding agrees to
reimburse the successful party herein for the reasonable attorneys' fees and
costs of suit incurred by the successful party.
37.5 The word "Tenant" shall be deemed and taken to mean each and every
person or party mentioned as a tenant herein, be the same one or more; and if
there shall be more than one tenant, each shall be jointly and severally
liable hereunder, and any notice required or permitted by the terms of this
Lease may be given by or to any one thereof, and shall have the same force and
effect as if given by or to all thereof. The use of the neuter singular
pronoun to refer to Tenant shall be deemed a proper reference even though
Tenant may be an individual, a corporation, a corporation or a group of two or
more individuals or corporations. The necessary grammatical changes required
to make the provisions of this Lease apply in the plural sense where there is
more than one Tenant and to either corporations, associations, partnerships or
individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
37.6 The terms and agreements as contained in this Lease shall apply
to, run in favor of and shall be binding upon and inure to the benefit of the
parties hereto, and their respective heirs, executors, administrators,
personal representatives and assigns and successors in interest, subject at
all times nevertheless to the provisions of Section 20 of this Lease.
37.7 It is understood that there are no oral agreements or
representations between the parties hereto affecting this Lease, and this
Lease supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements or representations and understandings, if any, between
the parties hereto or displayed by Landlord to Tenant with respect to the
subject matter thereof, and none thereof shall be used to interpret or
construe this Lease. There are no other representations or warranties between
the parties and all reliance with respect to representations is solely upon
the representations and agreements contained in this document.
37.8 The titles of Sections herein are for convenience only and do not
in any way define, limit or construe the contents of such Sections.
37.9 It is agreed that if any provision of this Lease shall be
determined to be void by any court of competent jurisdiction, then such
determination shall not affect any other provision of this Lease and all such
other provisions shall remain in full force and effect; and it is the
intention of the parties hereto that if any provision of this Lease is capable
of two constructions, one of which would render the provision void and the
other of which would render the provision valid, the provision shall have the
meaning which renders it valid.
37.10 Any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, acts of God, inability to obtain labor or materials or reasonable
substitutes therefor, governmental restrictions, governmental regulations,
governmental controls, enemy or hostile governmental action, civil commotion,
fire or other casualty, and other causes beyond the reasonable control of the
party obligated to perform any term, covenant or condition of this Lease,
shall excuse the performance by such party for a period equal to any such
prevention, delay or stoppage except the obligations imposed with regard to
rental and other charges 'to be paid by Tenant pursuant to this Lease.
37.11 Time is of the essence of this Lease and each provision hereof in
which time of performance is established.
1852:18521430 -21
38. CONFIDENTIALITY
Landlord and Tenant acknowledge and agree that the terms of this Lease
are confidential and constitute proprietary information of Landlord and
Tenant. Disclosure of the terms hereof could adversely affect the ability of
Landlord to negotiate other leases with respect to the Village Retail Center
and impair Landlord's relationship with other tenants of the Village Retail
Center. Each of Landlord and Tenant agree that they, and their respective
partners, officers, directors, employees and attorneys shall not disclose the
terms and conditions of this Lease to any other person without the prior
written consent of the other party hereto. The foregoing shall not extend to
disclosure by Landlord of the terms of this Lease to the holder of any
Underlying Mortgage, or any portion thereof, or to any prospective purchaser
of the Village Retail Center or the Complex, or any interest therein, nor to
disclosure by either party to the independent accountants who audit their
respective financial statements or the parties' other professional advisors on
a "need to know" basis. It is understood and agreed that damages would be an
inadequate remedy for the breach of this provision by any party hereto and
each of the parties hereto shall have the right to specific performance of
this provision and to injunctive relief to prevent its breach or continued
breach.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
date and at the place indicated below.
TENANT
BY: THE TOWN OF WESTLAKE, a Texas
municipal corporation
9a`l-jE(wfiite-, Mayor
Date: 3 (5 /? /
LANDLORD
BY: MAGUIRE/THOMAS PARTNERS - WESTLAKE/
SOUTHLAKE PARTNERSHIP, a Texas
General Partnership
By: MAGUIRE/THOMAS PARTNERS
DALLAS, LTD., a California
Limited Partnership,
a General Partner
By: MAGUIRE/THOMAS PARTNERS,
1852:18521430 -22-
DIA -l"
Lot 1, Block 2, Of Westlake/Saithlake Raxk Addition No. 1, Town of 'Westlake,
Texas, as filed in Vobjme 388-214, Page 78-79 of the Map and Plat Records of
Tarrant Qmnty, Toms.
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ACCEPTANCE OF PREMISES MEMORANDUM
This Memorandum is made and entered into as of , 1991, by and
between MAGUIRE/THOMAS PARTNERS - WESTLAKE/SOUTHLAKE PARTNERSHIP (the
"Landlord") and THE TOWN OF WESTLAKE (the "Tenant") with respect to that
certain Lease Agreement between Landlord and Tenant dated as of
— (the "Lease").
Landlord and Tenant hereby agree that:
1. Except for those items shown on the attached "punch list," which Land-
lord will complete as soon as reasonably practicable, Landlord has fully
completed the construction work required under the terms of the Lease.
2. The Premies are tenantable, the Landlord has no further obligation for
construction and Tenant acknowledges that both the Building and the Pre-
mises are satisfactory in all respects.
3. The Commencement Date of the Lease is hereby agreed to be the
day of —, 1991.
4. The Expiration Date of the Lease is hereby agreed to be the day
of r 19--.
5. Notwithstanding anything to the contrary expressed or implied herein,
Tenant acknowledges that Landlord makes no warranties regarding the Pre-
mises except as specifically provided in this Lease and Tenant hereby
expressly disclaims the implied warranty that the Premises are suitable
for their intended commercial purpose. Tenant has had a full and fair
opportunity to inspect the Premises and finds that the Premises suit
Tenant's purposes. Tenant has knowledge of the Premises and with this
knowledge has voluntarily agreed to disclaim the implied warranty of
suitability.
All other terms and conditions of the Lease are hereby ratified and acknowl-
edged to be unchanged.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum as of
the date set forth in the first paragraph above.
LANDLORD:
MAGUIRE/THOMAS PARTNERS - WESTLAKE/SOUTHLAKE PARTNERSHIP
a Texas General Partnership
By: MAGUTRE/THOMAS PARTNERS - DALLAS LTD,
a California Limited Partnership
a General Partner
By: MAGUIRE/THOMAS PARTNERS, INC.
a California Corporation
Its General Partner
By: _
Tom Allen
Its:
TENANT:
By: THE TOWN OF WESTLAKE, a Texas
municipal corporation
Dale White, Mayor
06:12830216.90 Page Solo
RULES AND REGULATIONS
1. The sidewalks, halls, passages, exits, entrances, elevators,
arcades and stairways of the Village Retail Center or other portion of the
Complex shall not be obstructed by Tenant or used by it for any purpose other
than for ingress to and egress from the Premises. The halls, passages, exits,
entrances, elevators, arcades, and stairways are not for the use of the gen-
eral public, and Landlord shall in all cases retain the right to control and
prevent access thereto of all persons whose presence in the judgment of Land-
lord would be prejudicial to the safety, character, reputation and interests
of the Complex and its tenants, provided that nothing herein contained shall
be construed to prevent such access to persons with whom Tenant normally deals
in the ordinary course of its business, unless such persons are engaged in
illegal activities. Tenant shall riot go upon the roof of the Village Retail
Center or the Building, except in areas that Landlord may allow in writing
from time to time.
2. No awning, canopy or other projection of any kind over or around
the windows or entrances of the Premises shall be installed by Tenant, except
as otherwise provided in Landlord's Agreement for Construction or in the
Lease, and only such window coverings as are approved by Landlord shall be
used in the Premises.
3. The Premises shall not be used for lodging or sleeping, and,
unless ancillary to a restaurant or other food service use specifically autho-
rized in Tenant's lease, no cooking shall be done or permitted by Tenant on
the premises, except that the preparation of coffee, tea, hot chocolate and
similar items and microwave reheating of small food items for Tenant and its
employees shall be permitted.
4. All janitorial work for the Premises shall be paid for by Tenant.
Any person or persons employed by Tenant to do janitorial work shall be sub-
ject to and under the control and direction of the Landlord or its property
manager while in the Complex and outside the Premises.
5. Landlord will furnish Tenant with two (2) keys to the Premises,
free of charge. No additional locking devices shall be installed without the
prior written consent of Landlord. Landlord may make reasonable charge for
any additional lock or any bolt installed on any door of the Premises without
the prior consent of Landlord. Tenant shall in each case furnish Landlord
with a key for any such lock. Tenant, upon the termination of its tenancy,
shall deliver to Landlord all keys to doors in the Premises that shall have
been furnished to Tenant.
G. Tenant shall not use or keep in the Premises or elsewhere in the
Village Center any kerosene, gasoline or flammable or combustible fluid or
materials (except as may be required in the ordinary course of Tenant's busi-
ness in the Premises, subject to the provisions of Article 4 of the Lease) or
use any method of heating or air conditioning other than that permitted in
writing by Landlord. Tenant shall not use, keep or permit or suffer the Pre-
mises to be occupied or used in a manner offensive or objectionable to Land-
lord or other occupants of the Village Center by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having busi-
ness in the Village Center.
7. Tenant shall see that the doors of the Premises are closed and
securely locked at such times as Tenant's employees leave the Premises.
8. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were con-
structed, no foreign substance of any kind whatsoever shall be deposited
therein, and any damage resulting to same from Tenant's misuse shall be paid
for by Tenant.
9. Except with the prior consent of Landlord, Tenant shall. not sell,
or permit the sale from the Premises of, or use or permit the use of any side-
walk or arcade adjacent to the Premises for the sale of newspapers, magazines,
periodicals or any other goods, merchandise or service, nor shall Tenant carry
1852:18521431
on, or permit or allow any employee or other person to carry on, business in
or from the Premises for the service or accommodation of occupants of any
other portion of the Village Center, nor shall the Premises be used for manu-
facturing of any kind, or for any business or activity other than that specif-
ically provided for in Tenant's lease.
10. Except as expressly provided otherwise in the Lease, Tenant shall
not install any radio or television antenna, loud speaker or other device on
the roof or exterior walls of the Building or the Village Retail Center.
11. Tenant shall not use in any space, or in the common areas of the
Village Center, any handtrucks except those equipped with rubber tires and
side guards or such other material handling -equipment as Landlord may approve.
No other vehicles of any kind shall be brought by Tenant into the Village
Retail Center or kept in or about the Premises.
12. Tenant shall store all its trash and garbage within the Premises
until daily removal of same by Tenant to such location in the Village Center
as may be designated from time to time by Landlord. No material shall be
placed in the Village Center trash boxes or receptacles if such material is of
such nature that it may not be disposed of in the ordinary and customary man-
ner of removing and disposing of trash and garbage in the Town of Westlake
without being in violation of any law or ordinance governing such disposal.
13. All loading and unloading of merchandise, supplies, materials,
garbage and refuse and delivery of same to the Premises shall be made only
through such entryways and at such times as Landlord may designate. In its
use of the loading areas designated by Landlord, Tenant shall not obstruct or
permit the obstruction of said loading areas, and at no time shall Tenant park
vehicles therein except for loading and unloading. For deliveries to Tenants
on the second story of the Village Retail Center, Tenant shall (i) coordinate
such deliveries with Landlord and (ii) provide padding for the elevator to
preclude damage to such elevator.
14. Canvassing, soliciting, peddling or distribution of handbills or
any other written material in the Complex is prohibited and Tenant shall coop-
erate to prevent same.
15. Except as expressly provided otherwise in the Lease, Tenant shall
not permit the use or the operation of any vending machines or pay telephones
on the Premises.
16. Landlord may direct the use of all pest extermination and scaven-
ger contractors at such intervals as Landlord may reasonably require.
17. Landlord reserves the right to select the name of the Complex and
the Village Center and the buildings therein and to make such change or
changes of name as it may deem appropriate from time to time, and Tenant shall
not refer to the Complex and the buildings therein by any name other than:
(i) the names as selected by Landlord (as same may be changed from time to
time), and (ii) the postal address, approved by the United States Post Office.
Tenant shall not use the name of the Complex and the buildings therein in any
respect other than as an address of its operation in the Complex without the
prior written consent of Landlord.
18. Tenant shall not allow any pets or other animals within the Pre-
mises, the Village Retail Center or the Complex.
19. The requirements of Tenant will be attended to only upon applica-
tion by telephone or in person at the office of the Complex. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless under special. instructions from Landlord.
20. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of these Rules and Regulations in
favor of any other tenant or tenants, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any and all of the tenants of
the Village Center.
21. Wherever the word "Tenant" occurs in these Rules and Regulations,
it is understood and agreed that it shall mean the Tenant and Tenant's
1352:18521431 -2-
associates, agents, clerks, employees and visitors. Wherever the word "Land-
lord" occurs in these Rules and Regulations, it is understood and agreed that
it shall mean Landlord and Landlord's assigns, agents, clerks, employees and
visitors.
22. These Rules and Regulations are in addition to, and shall not be
construed in any way to modify, alter or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease in the Complex.
23. Landlord reserves the right to make such other reasonable rules
and regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Complex, and for the preservation of good
order therein.
1852:18521431 -3-