Below you will find the form Lease of Site for Telecommunications Facilities approved March 22, 1997 by the Executive Vice Chancellor for Business Affairs. The lease form has numerous blanks that you must complete before the lease is signed. Therefore, preceding the lease is list of questions and instructions to assist you in completing the lease form. You may skip this list and go directly to the form Lease if you wish.
Introductory Paragraph
Article 1
To what address and to whose attention should notices to the tenant be
addressed? (NOTE: The party to whose attention the notices should be sent
should be given as a title, rather than a name of an individual.)
__________________________________________
Section 4.2
Section 8.1
Section 9.1
Exhibits
1. Attach the following exhibits:
A - The legal description for the real property on which the building or tower sits.
B - A detailed description of the tenant's equipment to be placed on the premises.
C - The description of the premises (this description could be a floor plan on which the tenant's leased premises are highlighted or otherwise indicated.)
D - A detailed description (probably a drawing) of the location of the non-exclusive easement to be granted to the tenant for placement of conduits, cabling, etc. If no easement is intended to be granted to the tenant, do not attach an Exhibit D.
For a list of questions and instructions to assist in completing this form, see the Lease Preparation Form.
FORM APPROVED: March 22, 1997
Modifications or additions to this form
require the approval of the U.T. Executive
Vice Chancellor for Business AffairsLEASE OF SITE FOR TELECOMMUNICATIONS FACILITIES
TABLE OF CONTENTS
Definitions and Certain Basic Provisions
Lease of Premises
Rent and Security Deposit
Early Termination
Use and Care of Premises
Maintenance and Repair of Premises
Leasehold Improvements/Alterations
Access
Utilities
Indemnity and Public Liability Insurance
Eminent Domain
Casualty
Assignment and Subletting
Taxes and Assessments
Default by Tenant and Remedies
Holding Over
Notices
Miscellaneous
| STATE OF TEXAS | § |
| § | |
| COUNTY OF_____ | § |
This Lease of Site for Telecommunications Facilities (this "Lease") is entered into as of the first day on which both parties hereto have executed same, by and between the BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM, for the use and benefit of THE UNIVERSITY OF TEXAS __________________________________ ("Landlord"), and _________________________, a _______________________ ("Tenant").
1. Definitions and Certain Basic Provisions
1.1 The following definitions and basic provisions apply to this Lease:
Facility: [give name and address of building or tower]
Landlord's Facilities: All equipment, machinery, facilities, and other personal property located in the Facility or on the Land and/or used in connection with the operation or maintenance of the Facility, or any part thereof.
Effective Date: The date that this Lease has been signed by both parties.
Landlord's Address: The University of Texas ______________________________
__________________________________________________
__________________________, Texas _________________
Attention: _________________________________________
Land: The parcel of real property more particularly described on the attached Exhibit A.
Lease Term: The ___-month period (the "Primary Term") commencing on ________________, 199__ (the "Commencement Date"), and ending on ______________, ____. The term "Lease Term," as used herein, shall include all valid renewals or extensions of the term of this Lease unless the context clearly indicates to the contrary.
Lease Year: The first twelve (12) calendar months of the term of this Lease shall constitute the first Lease Year of this Lease. The second Lease Year and each succeeding Lease Year shall consist of the twelve (12) months immediately following the expiration of the immediately preceding Lease Year.
Permitted Use: Tenant shall use the Premises only for the purpose of housing and operating certain telecommunications equipment, which equipment is more particularly described in the attached Exhibit B ("Tenant's Equipment") and for no other purpose.
Premises: The portion of the Facility to be leased, as shown on the attached Exhibit C, containing approximately ______ square feet.
Project: The Land, the Facility, the Landlord's Facilities and all appurtenances pertaining to the foregoing.
Rental: Payment of Rental shall commence on the Commencement Date. For the Primary Term, Tenant shall pay rental in the amount of____________________________________ and __/100 DOLLARS U.S. ($________ U.S.) per month, payable in advance on the Commencement Date and on or before the first day of each succeeding calendar month throughout the Lease Term. Rent for any partial month upon the commencement or termination of the Lease Term shall be prorated based on 1/30th of the monthly rental for each day of that partial month.
Security Deposit: $__________________________ U.S.
Tenant's Address:______________________________________
____________________________________________________
____________________________________________________
Attention: ____________________________________________
2. Lease of Premises
2.1. Landlord, in consideration of the Rental and other charges to be paid and the other covenants and agreements to be performed by Tenant, hereby demises and leases to Tenant, and Tenant hereby takes from Landlord, the Premises commencing on the Commencement Date and ending on the last day of the Lease Term unless sooner terminated as herein provided.
2.2 The Premises are delivered to Tenant and are being leased "AS IS" and "WITH ALL FAULTS," and Landlord makes no representation or warranty of any kind, expressed or implied, with respect to the condition of the Premises (including habitability, fitness or suitability for particular purpose of the Premises). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD HEREBY DISCLAIMS, AND TENANT WAIVES THE BENEFIT OF, ANY AND ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF HABITABILITY, FITNESS OR SUITABILITY FOR TENANT'S PURPOSE. TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY AGENT OF LANDLORD HAS MADE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE PREMISES OR WITH RESPECT TO THE SUITABILITY OF SAME FOR THE PURPOSE HEREIN INTENDED. BY OCCUPYING THE PREMISES, TENANT SHALL BE DEEMED TO HAVE ACCEPTED THE SAME AS SUITABLE FOR THE PURPOSE HEREIN INTENDED.
2.3. Tenant shall peaceably and quietly hold and enjoy the Premises for the Lease Term, without hindrance from Landlord or Landlord's successors or assigns, subject to the terms and conditions of this Lease including the performance by Tenant of all of the terms and conditions of this Lease to be performed by Tenant and including the payment of Rental and other amounts due hereunder.
2.4 This Lease shall be subject to any and all easements, rights-of-way, covenants, liens, conditions, restrictions, and outstanding mineral or royalty interests, if any, relating to the Premises, to the extent, and only to the extent, the same still may be in force and effect and either shown of record in the Office of the County Clerk of the county in which the Land is located, or apparent on the Project.
3. Rent and Security Deposit
3.1 In consideration of this Lease, Tenant promises and agrees to pay to Landlord at Landlord's Address stated or at such other address as Landlord may designate by notice in writing to Tenant, the Rental, without demand, deduction or set-off, for each month of the Lease Term.
3.2 If Tenant fails to pay to Landlord when due any installment of Rental or any other sum to be paid to Landlord that may become due hereunder, Landlord will incur additional expenses in an amount not readily ascertainable and that have not been elsewhere provided for between Landlord and Tenant. If Tenant fails to pay Landlord when due any installment of Rental or any other sum to be paid hereunder, Tenant will pay Landlord on demand a late charge of five percent (5%) thereof. Failure to pay such late charge upon demand shall be an event of default hereunder. Provision for such late charge shall be in addition to all other rights and remedies available to Landlord hereunder or at law or in equity and shall not be construed as liquidated damages or limiting Landlord's remedies in any manner.
3.3 Simultaneously with the execution of this Lease by Tenant, Tenant shall deposit with Landlord the Security Deposit. The Security Deposit shall be security for the payment and performance by Tenant of all of Tenant's obligations, covenants, conditions and agreements under this Lease. Landlord shall have the right, but shall not be obligated, to apply all or any portion of the Security Deposit to cure any default by Tenant, in which event Tenant shall be obligated to promptly deposit with Landlord the amount necessary to restore the Security Deposit to its original amount. If Tenant fails to perform its obligations under this Lease, the Security Deposit shall not be deemed liquidated damages and Landlord may apply the Security Deposit to reduce Landlord's damages. Such application of the Security Deposit shall not preclude Landlord from recovering from Tenant all additional damages incurred by Landlord. To the fullest extent allowed by law, Tenant hereby waives any applicable law now or in the future requiring the placement of such monies in a separate escrow account or an interest bearing account. In the event Tenant fully and faithfully complies with all terms, covenants, and conditions of this Lease, the Security Deposit shall be returned to Tenant within thirty (30) days following the expiration or earlier termination of this Lease and Tenant's surrender of the Premises in accordance with the terms of this Lease. Landlord shall deliver the Security Deposit to any purchaser or other successor or assignee of Landlord's interest in the Premises, in which event Landlord shall be discharged and released from all further liability with respect to the Security Deposit and Tenant agrees to look solely to the successor or other new landlord for the return of the Security Deposit. No holder of a mortgage or deed of trust to which this Lease is subordinate shall be responsible in connection with the Security Deposit unless the mortgagee or holder of the deed of trust actually received the Security Deposit.
4. Early Termination
4.1 Tenant may terminate this Lease if, after installation of Tenant's Equipment, Tenant's Federal Communications Commission authorization to operate Tenant's Equipment is revoked, canceled, not renewed, or otherwise forfeited by Tenant. Tenant shall give notice of its intended date of termination to Landlord and shall continue to make its rental payments as due through the date of termination. In addition, Tenant shall pay, no later than the date of termination, an amount equal to three (3) months rent as liquidated damages for early termination of the Lease. Tenant shall have no other liability for such early termination.
4.2 Landlord may terminate this Lease without cause at any time upon providing 365 days written notice to Tenant of Landlord's intent to terminate this Lease. Landlord's option to terminate this Lease shall not be exercised prior to the commencement of the ______ Lease Year.
4.3 Throughout the Lease Term, Landlord will not knowingly grant a lease to any other party for use of all or any part of the Facility if such use would adversely affect or interfere with Tenant's operation of its telecommunications system. Tenant's sole remedy for Landlord's breach of the foregoing obligation shall be Tenant's right to terminate this Lease upon thirty (30) days notice to Landlord if another user of the Facility causes interference with Tenant's operations that has not been corrected within thirty (30) days after notice to Landlord, or if new structures are built nearby that block or partially block Tenant's transmissions in a manner that significantly interferes with Tenant's operations.
5. Use and Care of Premises
5.1 The Premises may be used only for the Permitted Use, and for no other purpose or purposes without the prior written consent of Landlord.
5.2 Tenant, at its sole cost, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the Premises or the use thereof, including all applicable zoning ordinances, building codes and environmental laws. Tenant shall not occupy or use the Premises or permit any portion of the Premises to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by Landlord to be disreputable in any manner or extra hazardous on account of fire. Tenant shall operate its business in a reputable manner.
5.3 Tenant shall take good care of the Premises and keep the Premises neat, clean and free from dirt, rubbish, insects, and pests at all times. Tenant shall arrange for the pick-up and removal of all trash and garbage at Tenant's expense. Tenant shall not operate an incinerator or burn trash or garbage on the Premises.
5.4 Tenant shall procure, at its sole expense, any permits or licenses required for Tenant's use of the Premises.
5.5. Tenant shall not cause electrical interference to Landlord or to any other tenant or user of the Project who is occupying or using a portion of the Project as of the Commencement Date.
5.6 Tenant shall not bring or permit to remain on the Premises any asbestos containing materials, petroleum, explosives, toxic materials, or substances defined as hazardous wastes, hazardous materials, or hazardous substances under any federal, State, or local law or regulation ("Hazardous Materials"), except ordinary products commonly used in connection with the Permitted Use and stored in the usual manner and quantities. Tenant's violation of the foregoing prohibition shall constitute a material breach and default hereunder and Tenant shall indemnify, hold harmless and defend Landlord from and against any claims, damages, penalties, liabilities, and costs (including reasonable attorneys' fees and court costs) caused by or arising out of (i) a violation of the foregoing prohibition or (ii) the presence or any release of any Hazardous Materials on, under, or about the Premises during Tenant's occupancy or control of the Premises. Tenant shall clean up, remove, remedy and repair any soil or ground water contamination and damage caused by the presence and any release of any Hazardous Materials in, on, under, or about the Premises during Tenant's occupancy of the Premises in conformance with the requirements of applicable law. Tenant shall immediately give Landlord written notice of any suspected breach of this Section, upon learning of the presence or any release of any Hazardous Materials, and upon receiving any notices from governmental agencies pertaining to Hazardous Materials which may affect the Premises. The obligations of Tenant hereunder shall survive the expiration or earlier termination, for any reason, of this Lease.
6. Maintenance and Repair of Premises
6.1 Landlord shall have no obligation to repair or maintain the Premises and Landlord shall have no liability for any damages or injury arising out of any condition or occurrence causing a need for such repairs.
6.2 Tenant, at its sole cost and expense, shall repair or replace any damage or injury done to the Project, or any part thereof, by Tenant or Tenant's agents, employees, invitees or visitors, including any damage occasioned by the installation, operation, maintenance or removal of Tenant's Equipment. If any repairs required to be made by Tenant hereunder are not made within thirty (30) days after written notice delivered to Tenant by Landlord, Landlord may, at its option, make such repairs without liability to Tenant for any loss or damage that may result by reason of such repairs, and Tenant shall pay to Landlord within five (5) days after demand as additional rental hereunder the cost of such repairs plus ten percent (10%) of the amount thereof to cover overhead.
7. Leasehold Improvements / Alterations
7.1 Except as contemplated in Exhibit C, Tenant shall not make or permit to be made any alterations, additions or improvements to the Premises or paint, install lighting or decorations, or install any signs, window or door lettering or advertising media of any type on or about the Premises without the prior written consent of Landlord. Upon Landlord's written request, at the termination of this Lease Tenant shall restore those portions of the Premises that Tenant altered, added to or improved to the condition in which they existed on the Commencement Date. Tenant's Equipment and all furniture, movable trade fixtures and equipment installed in the Premises by Tenant may be removed by Tenant at the termination of this Lease if Tenant so elects, and shall be so removed if required by Landlord, or if not so removed shall, at the option of Landlord, become the property of Landlord without compensation to Tenant. In the event of any such removal, Tenant shall, at its expense, repair and restore to the condition in which it existed on the Commencement Date any portion of the Project that is damaged by such removal.
7.2 All construction work done by Tenant within the Premises shall be performed in a good and workmanlike manner, in compliance with all governmental requirements. Tenant agrees to indemnify Landlord and hold it harmless against any loss, liability or damage resulting from such work, and Tenant shall, if requested by Landlord, furnish a bond or other security satisfactory to Landlord against any such loss, liability or damage.
7.3 Tenant will not permit any mechanic's lien or other liens to be placed upon the Premises, or any portion thereof, caused by or resulting from any work performed, materials furnished or obligation incurred by or at the request of Tenant, and in the case of the filing of any such lien, Tenant will immediately pay, obtain the release of, or bond around same (such bond to be in the form and amount prescribed by the Texas Property Code). If any lien is not removed (or bonded around) within thirty (30) days, Landlord shall have the right and privilege at Landlord's option of paying the same or any portion thereof without inquiry as to the validity thereof, and any amounts so paid, including expenses and interest, shall be so much additional rent hereunder due from Tenant to Landlord and shall be repaid to Landlord (together with interest at the lesser of the rate of eighteen percent (18%) per annum or the maximum rate permitted by law from the date paid by Landlord) within ten (10) days after Tenant's receipt of a statement from Landlord therefor.
8. Access
8.1 Landlord shall provide access to the Premises to Tenant's employees, when accompanied by facility management personnel, between the hours of ______ a.m. and ______ p.m. Monday through Friday for the purposes of installation, inspection, operation, maintenance and removal of Tenant's Facilities. Tenant shall not allow access to the Premises by third parties without prior knowledge and consent of facility management. Landlord shall provide emergency access to the Premises to Tenant as necessary before ____ a.m. or after ____ p.m., Monday through Friday, or any time on holidays or weekends upon request by Tenant and when accompanied by facility management personnel.
8.2 Landlord shall have the right to enter upon the Premises at any time in the event of an emergency and at any reasonable time for any reasonable purpose, including without limitation, inspecting same or showing the Premises to prospective purchasers, lessees or lenders.
9. Utilities
9.1. [USE THIS OPTION IF TENANT IS TO PAY UTILITY PROVIDER DIRECTLY] Landlord makes no representation with regard to utility services available to the Premises. Tenant shall pay promptly and before delinquency all charges for electricity, water, gas, telephone service, sewerage service, and other utilities furnished to the Premises and shall pay promptly any maintenance charges therefore. Such payments shall be made directly to the provider of the utility service.
9.1 [USE THIS OPTION IF TENANT IS TO PAY LANDLORD FOR ELECTRICAL SERVICES] Landlord shall make available to Tenant electric current to the Premises sufficient to furnish power for Tenant's Equipment, and Tenant shall pay the amount of $________ per annum, payable in equal monthly installments of $______ on or before the first day of each calendar month, together with the Rental due hereunder, for such utility services; provided, however, that such amount is based on current utility rates and Tenant's initial intended use of the Premises, and may be adjusted by Landlord in the event utility rates increase or Tenant's Equipment or use of the Premises changes. Landlord shall give Tenant written notice of any such adjustment and Tenant shall pay the new amount of the monthly installments payable for utility services due hereunder beginning on or before the first day of the calendar month that is at least ten (10) days after Tenant's receipt of such written notice from Landlord. At Landlord's option and within 30 days after Tenant's receipt of a written request from Landlord, Tenant, at Tenant's sole cost, shall install a meter to measure electric consumption by Tenant.
9.1 [USE THIS OPTION IF THE COST OF ELECTRICAL SERVICE IS INCLUDED IN THE RENT] In consideration of Tenant's payment of the Rental, Landlord shall furnish electric current to the Premises sufficient to furnish power for Tenant's Equipment; provided, however, that the Rental is based, in part, on current utility rates and Tenant's initial intended use of the Premises, and may be adjusted by Landlord in the event utility rates increase or Tenant's Equipment or use of the Premises changes. Landlord shall give Tenant written notice of any such adjustment and Tenant shall pay the new amount of the monthly installments payable for Rental hereunder beginning on or before the first day of the calendar month that is at least ten (10) days after Tenant's receipt of such written notice from Landlord. At Landlord's option and within 30 days after Tenant's receipt of a written request from Landlord, Tenant, at Tenant's sole cost, shall install a meter to measure electric consumption by Tenant.
9.2 Tenant, at Tenant's sole cost, shall install, maintain and repair all wiring, conduits, facilities, equipment and cabling necessary to connect the Premises and/or Tenant's Equipment to the utility service providers and connections.
9.3 If Exhibit D is attached to this Lease, Landlord hereby grants Tenant a non-exclusive easement (the "Easement") as described on Exhibit D for the purposes of installation, operation, maintenance, repair, replacement and removal of all wiring, conduits, facilities, equipment and cabling necessary to connect Tenant's Equipment or the Premises to utility services. Landlord reserves the right to cross the Easement and use and grant the use of other easements in, under, on, over, through and across, the Easement to others for any uses or purposes, except that no such other grants shall permit or allow unreasonable interference with the Easement herein granted to Tenant. Landlord shall have the right, at Landlord's sole expense, to relocate the Easement to Tenant, provided such new location shall not materially and adversely interfere with Tenant's operations within the Premises. The Easement shall be for a term commencing on the Commencement Date of this Lease and shall automatically terminate on the expiration or earlier termination of this Lease. Provided, however, that Tenant agrees in such event to execute and deliver to Landlord, its successors or assigns, a termination of easement, duly executed and acknowledged by Tenant, on the request of Landlord.
9.4 Landlord shall not be liable for any interruption or failure in utility services arising from any cause whatsoever other than Landlord's gross negligence or intentional misconduct, nor shall any such interruption or failure be construed as an eviction of Tenant or work an abatement of rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof, nor render Landlord liable in any respect for damages to either person, property or business. Provided, however, if Landlord is providing electrical service to Tenant, Landlord shall use reasonable efforts to resume said service in a timely manner and Landlord shall use reasonable diligence to repair any equipment or machinery furnished by Landlord, but Tenant shall have no claim for abatement of rent or damages on account of any interruption in service occasioned thereby or resulting therefrom.
10. Indemnity and Public Liability Insurance
10.1 FROM AND AFTER THE EFFECTIVE DATE, LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE TO TENANT FOR ANY LOSS OR DAMAGE TO ANY PROPERTY OR PERSON OCCASIONED BY THEFT, ACT OF GOD, PUBLIC ENEMY, INJUNCTION, RIOT, STRIKE, INSURRECTION, WAR, COURT ORDER, REQUISITION OR ORDER OF GOVERNMENTAL BODY OR AUTHORITY OR ANY SIMILAR MATTER OR BY THE PREMISES BEING OUT OF REPAIR OR BY DEFECT IN OR FAILURE OF EQUIPMENT, PIPES, OR WIRING, OR BROKEN GLASS, OR BY GAS, WATER, STEAM, ELECTRICITY OR OIL LEAKING, ESCAPING, OR FLOWING INTO THE PREMISES. LANDLORD SHALL NOT BE LIABLE TO TENANT, OR TO TENANT'S AGENTS, SERVANTS, EMPLOYEES, CUSTOMERS OR INVITEES AND TENANT SHALL INDEMNIFY, DEFEND, AND HOLD LANDLORD HARMLESS FROM AND AGAINST ANY AND ALL FINES, SUITS, CLAIMS, DEMANDS, LOSSES, LIABILITIES, ACTIONS, AND COSTS (INCLUDING COURT COSTS AND ATTORNEYS' FEES) ARISING FROM (I) ANY INJURY TO PERSON OR DAMAGE TO PROPERTY CAUSED BY ANY ACT, OMISSION, OR NEGLECT OF TENANT, TENANT'S AGENTS, SERVANTS, EMPLOYEES, CUSTOMERS OR INVITEES, (II) TENANT'S USE OF THE PREMISES OR THE CONDUCT OF TENANT'S BUSINESS, (III) ANY ACTIVITY, WORK, OR THING DONE, PERMITTED OR SUFFERED BY TENANT IN OR ABOUT THE PROJECT, (IV) ANY BREACH OR DEFAULT IN THE PERFORMANCE OF ANY OBLIGATION ON TENANT'S PART TO BE PERFORMED UNDER THE TERMS OF THIS LEASE, OR (V) THE DESIGN OR CONSTRUCTION OF TENANT'S EQUIPMENT OR ANY OTHER IMPROVEMENTS CONSTRUCTED ON THE PREMISES.
10.2 Tenant shall, at Tenant's expense, maintain a policy or policies of comprehensive general liability insurance with limits of not less than $1,000,000 with respect to bodily injury or death to any number of persons in any one accident or occurrence, nor less than $250,000 with respect to property damage in any one accident or occurrence, throughout the Lease Term.
10.3 All policies of insurance that Tenant is required to maintain hereunder shall be issued by and binding upon solvent insurance companies licensed to do business in Texas, shall name Landlord as an additional insured, and shall contain a provision to the effect that Landlord, although named as an insured, shall nevertheless be entitled to recovery under said policy for any loss occasioned to Landlord, its servants, agents, and employees by reason of the acts, omission, and/or negligence of Tenant. Prior to entering upon the Premises, Tenant shall furnish to Landlord either (i) a copy of Tenant's insurance policies or (ii) evidence of insurance verifying Tenant's compliance with the insurance coverage requirements of this Article10 and indicating the exclusions from coverage, if any. Any insurance company providing insurance required hereunder shall notify Landlord at least thirty (30) days prior to cancellation or material change of any such insurance. All insurance required by this Article 10 shall be primary and noncontributing with any insurance that may be carried by Landlord.
10.4. Each party hereto hereby waives any cause of action it might have against the other party on account of any loss or damage that is required to be insured against by it under this Lease. Each party hereto agrees that it will obtain from its insurance carrier endorsements to all applicable policies waiving the carrier's rights of recovery under subrogation or otherwise against the other party.
11. Eminent Domain
11.1 If all of the Premises is taken for any public or quasi-public use under any government law, ordinance or regulation or by right of eminent domain or by private purchase in lieu thereof, this Lease shall terminate and the rent shall abate during the unexpired portion of this Lease, effective on the date physical possession is taken by the condemning authority.
11.2 If a portion of the Premises is taken as aforesaid, and such taking does not substantially interfere with Tenant's use of the Premises for the purposes stated in Section hereof or deprive Tenant of access to the Premises, then this Lease shall not terminate; however, the Rental payable hereunder during the unexpired portion of this Lease shall be reduced in proportion to the area taken, effective on the date physical possession is taken by the condemning authority. Notwithstanding the foregoing, if such a partial taking substantially interferes with Tenant's use of the Premises for the purposes stated in Section hereof or deprives Tenant of access to the Premises, Tenant shall have the option to terminate this Lease effective on the date physical possession is taken by the condemning authority, and the Rental will abate effective as of the date of termination.
11.3 All compensation awarded for any taking (or the proceeds of private sale in lieu thereof) of the Premises shall be the property of Landlord, and Tenant hereby assigns Tenant's interest in any such award to Landlord; provided, however, Landlord shall have no interest in any award made to Tenant for loss of business or for the taking of Tenant's Equipment and Tenant's other property if a separate award for such items is made to Tenant.
12. Casualty
12.1 If substantially all of the Facility is destroyed by fire, tornado or other casualty or if the Premises or the Facility is so damaged that rebuilding or repairs cannot, in the reasonable judgment of Landlord, be completed within one hundred eighty (180) days after the date of such damage, Landlord may at its option terminate this Lease, in which event, this Lease shall terminate effective as of the date of such damage. If the Premises or the Facility is damaged by fire, tornado or other casualty covered by Landlord's insurance, if any, but only to such extent that rebuilding or repairs can, in the reasonable judgment of Landlord, be completed within one hundred eighty (180) days after the date of such damage, or if the damage is more serious but Landlord does not elect to terminate this Lease, in either such event Landlord shall within thirty (30) days after the date of such damage commence to rebuild or repair the Premises and/or the Facility and shall proceed with reasonable diligence to restore same to substantially the same condition in which it was immediately prior to the happening of the casualty, except that Landlord shall not be required to rebuild, repair or replace any part of Tenant's Equipment or other equipment, fixtures and improvements that may have been placed by Tenant or other tenants within the Premises or the Project. Landlord shall allow Tenant a diminution of Rental during the time the Premises are unfit for the purposes herein intended, which diminution shall be based upon the diminished usefulness of the Premises to Tenant. In the event any mortgagee under a deed of trust, security agreement or mortgage on all or a portion of the Project requires that the insurance proceeds be used to retire the mortgage debt, then Landlord, at Landlord's option, may elect not to rebuild and this Lease shall terminate upon Tenant's receipt of a notice from Landlord to that effect. Any insurance that may be carried by Landlord or Tenant against loss or damage to the Premises or to the Project shall be for the sole benefit of the party carrying such insurance and under its sole control.
13. Assignment and Subletting
13.1. Tenant shall not assign or in any manner transfer this Lease or any estate or interest therein, or sublet the Premises or any part thereof, or grant any license, concession, or other right to occupy any portion of the Premises without the prior written consent of Landlord.
13.2 Consent by Landlord to one or more assignments or sublettings shall not operate as a waiver of Landlord's rights as to any subsequent assignments or sublettings. Notwithstanding any assignment or subletting, Tenant shall at all times remain fully responsible and liable for the payment of the rental herein specified and for compliance with all of Tenant's other obligations under this Lease.
13.3 Landlord shall have the right to transfer and assign, in whole or in part, all of Landlord's rights and obligations hereunder and in the Premises or the Project, and in such event and upon assumption by the transferee of Landlord's obligations under this Lease (any such transferee to have the benefit of, and be subject to, the provisions of this Lease), no further liability or obligation shall thereafter accrue against Landlord hereunder, and Tenant agrees to look solely to such successor in interest of Landlord for performance of such obligations.
13.4 Tenant may mortgage, pledge or otherwise encumber Tenant's leasehold interest in the Premises, but in no event shall Tenant mortgage, pledge or otherwise encumber Landlord's interest in the Premises, the Project or any improvements thereon.
14. Taxes and Assessments
14.1 Tenant shall be liable for all taxes levied against Tenant's Equipment and any other improvements, personal property or trade fixtures placed by Tenant on the Premises, all taxes levied or assessed on Tenant's leasehold interest in the Premises, and any other levies, assessments, fees, or business or other taxes of any kind levied or accruing because of Tenant's occupancy of the Premises or on the business or income of Tenant generated from the Premises. Tenant shall pay the same directly to the tax assessing authority prior to delinquency.
14.2 Upon Landlord's request and following Tenant's failure to pay such taxes, levies, assessments or fees prior to delinquency, Tenant shall pay to Landlord additional monthly installments of Rental in an amount sufficient to pay all taxes and assessments that are Tenant's obligation and that accrue during the then current Lease Year.
15. Default by Tenant and Remedies
15.1 The following events shall be deemed to be events of default by Tenant under this Lease:
a. Tenant fails to pay when due any installment of Rental or any other sum payable by Tenant under this Lease.
b. Tenant fails to comply with any other term, provision or covenant of this Lease within fifteen (15) days after written notice thereof to Tenant; provided, however, that if the nature of Tenant's obligation is of such a nature that it cannot reasonably be cured within said fifteen-day period, Tenant shall not be deemed in default so long as Tenant commences curing such failure within said fifteen-day period and diligently prosecutes same to completion.
c. Tenant or any guarantor of Tenant's obligation hereunder becomes insolvent, or makes any transfer in fraud of creditors, or makes an assignment for the benefit of creditors.
d. Tenant or any guarantor of Tenant's obligations hereunder files a petition under any section or chapter of any applicable federal or state bankruptcy or insolvency law, or is adjudged bankrupt or insolvent in proceedings filed against Tenant or such guarantor.
e. A receiver or trustee is appointed for all or substantially all of the assets of Tenant or any guarantor of Tenant's obligations hereunder.
f. Tenant does or permits to be done anything that creates a lien upon the Premises and the lien is not removed or bonded around within thirty (30) days after written notice thereof from Landlord to Tenant.
15.2 Upon the occurrence of any event of default specified in this Lease, Landlord shall have the option to pursue any and all remedies that Landlord then may have hereunder or at law or in equity, including, without limitation, any one or more of the following, in each case, without any further notice or demand whatsoever:
a. Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy that Landlord may have for possession or arrearage in rent, enter upon and take possession of the Premises by any lawful means, including by picking or changing locks if necessary, and lock out, expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor. Tenant agrees to pay to Landlord on demand the amount of all loss and damage that Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise.
b. Enter upon and take possession of the Premises by any lawful means, including by picking or changing locks if necessary, and lock out, expel or remove Tenant and any other person who may be occupying the Premises or any part thereof without being liable for prosecution or any claim for damages therefor, and if Landlord so elects, relet all or any part of the Premises on such terms as Landlord shall deem advisable and receive the rent therefor, and Tenant agrees to pay to Landlord on demand any deficiency that may arise by reason of such reletting for the remainder of the Lease Term or any extension thereof (if the event of default occurs during such extension term). Tenant shall be liable immediately to Landlord for all costs Landlord incurs in repossessing and reletting the Premises, including, without limitation, brokers' commissions, reasonable attorneys' fees incurred in connection with the reletting or in connection with Tenant's default hereunder, expenses of repairing, altering, and remodeling the Premises required by the reletting and like costs. In no event shall Tenant be entitled to receive any excess in the rental received by Landlord following a reletting over the amounts owed by Tenant to Landlord hereunder.
c. Make such payments, and/or take such action (including entering the Premises by picking or changing locks if necessary, without being liable for prosecution or any claim for damages therefor), and pay or perform whatever Tenant is obligated to do under the terms of this Lease. Tenant agrees to reimburse Landlord on demand for any expenses that Landlord may incur in thus effecting compliance with Tenant's obligations under this Lease (including reasonable attorneys' fees), and Tenant further agrees that Landlord shall not be liable for any damages resulting to Tenant from such action.
15.3 No re-entry or taking possession of the Premises by Landlord shall be construed as an election on its part to terminate this Lease, unless a written notice of such intention be given to Tenant. Notwithstanding any such reletting or re-entry or taking possession, Landlord may at any time thereafter elect to terminate this Lease for a previous default. Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other remedies herein provided or any other remedies provided by law, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of the violation of any of the terms, provisions, and covenants herein contained. Landlord's acceptance of rent following an event of default hereunder shall not be construed as Landlord's waiver of such event of default. No waiver by Landlord of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or default. No payment by Tenant or receipt by Landlord of any amount less than the amounts due by Tenant hereunder shall be deemed to be other than on account of the amounts due by Tenant hereunder, nor shall any endorsement or statement on any check or document accompanying any payment be deemed an accord and satisfaction.
15.4 In the event of termination for an event of default, Landlord shall not have any obligation to relet or attempt to relet the Premises, or any portion thereof, or to collect rental after reletting; and in the event of reletting, Landlord may relet the whole or any portion of the Premises for any period, to any tenant, and for any use and purpose.
15.5 Landlord shall not be deemed to be in default in the performance of any obligation required to be performed by Landlord hereunder unless and until Landlord has failed to perform such obligation within thirty (30) days after written notice by Tenant to Landlord specifying wherein Landlord has failed to perform such obligation; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for Landlord's performance, then Landlord shall not be deemed to be in default if Landlord shall commence such performance within such thirty-day period and thereafter diligently prosecute the same to completion. Unless and until Landlord fails to so cure any default after such notice, Tenant shall not have any remedy or cause of action by reason thereof. To the extent permitted by applicable law, Tenant hereby waives the provisions of §91.004(b) of the Texas Property Code (or any successor thereto) and any other laws that may grant to Tenant a lien upon any of Landlord's property or upon any rental due to Landlord.
15.6 In the event that Landlord shall have taken possession of the Premises pursuant to the authority herein granted, then Landlord shall have the right to keep in place and use all of the improvements, furniture, fixtures, and equipment at the Premises, including that which is owned or leased to Tenant, at all times prior to any foreclosure thereon by Landlord or repossession thereof by a lessor thereof or third party having a lien thereon. Landlord shall also have the right to remove from the Premises (without the necessity of obtaining a distress warrant, writ of sequestration or other legal process) all or any portion of such furniture, fixtures, equipment, and other property located thereon and place same in storage at any premises within the county in which the Premises are located; and in such event, Tenant shall be liable to Landlord for costs incurred by Landlord in connection with such removal and storage and shall indemnify and hold Landlord harmless form all loss, damage, cost, expense and liability in connection with such removal and storage. Landlord shall also have the right to relinquish possession of all or any portion of such furniture, fixtures, equipment, and other property to any person ("Claimant") claiming to be entitled to possession thereof who presents to Landlord a copy of any instrument represented to Landlord by Claimant to have been executed by Tenant (or any predecessor of Tenant) granting Claimant the right under various circumstances to take possession of such furniture, fixtures, equipment, or other property, without the necessity on the part of Landlord to inquire into the authenticity of said instrument's copy of Tenant's or Tenant's predecessor's signature thereon and without the necessity of Landlord's making any nature of investigation or inquiry as to the validity of the factual or legal basis upon which Claimant purports to act; and Tenant agrees to indemnify and hold Landlord harmless from all cost, expense, loss, damage and liability incident to Landlord's relinquishment of possession of all or any portion of such furniture, fixtures, equipment, or other property to Claimant. The rights of Landlord herein stated shall be in addition to any and all other rights which Landlord has or may hereafter have at law or in equity; and Tenant stipulates and agrees that the rights herein granted Landlord are commercially reasonable.
15.7 The provisions of this Article shall supersede §93.002 of the Texas Property Code (or any successor to such statute).
16. Holding Over
16.1 If Tenant remains in possession of the Premises after the expiration of this Lease and without the execution of a new lease, it shall be deemed to be occupying the Premises as a tenant at will at a rental equal to the Rental herein provided plus one hundred percent (100%) of such amount calculated on a daily basis and otherwise subject to all the conditions, provisions, and obligations of this Lease insofar as the same are applicable to a tenancy at will.
17. Notices
17.1 Wherever any notice is required or permitted hereunder, such notice shall be in writing. Any notice or document required or permitted to be delivered hereunder shall be deemed to be delivered whether actually received or not when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to the parties hereto at the respective addresses set out in Section 1.1, or at such other addresses as they have hereafter specified by written notice.
17.2 If and when included within the term "Tenant" as used in this instrument there are more than one person, firm or corporation, all shall arrange among themselves for their joint execution of such notices specifying some individual at some specific address for the receipt of notices and payments to Tenant. All parties included within the term "Tenant" shall be bound by notices and payments given in accordance with the provisions of this Article to the same effect as if each had received such notice or payment.
18. Miscellaneous
18.1 Nothing contained in this Lease shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of Rental, nor any other provisions contained herein, nor any acts of the parties hereto, shall be deemed to create any relationship between the parties hereto other than the relationship of Landlord and Tenant. Whenever herein the singular number is used, the same shall include the plural, and words of any gender shall include each other gender.
18.2 Except as expressly set forth in this Lease, Landlord shall not be required to make any expenditure, incur any obligation, or incur any liability of any kind whatsoever in connection with this Lease or the financing, ownership, construction, maintenance, operation, or repair of the Premises.
18.3 The captions used herein are for convenience only and do not limit or amplify the provisions hereof.
18.4 One or more waivers of any covenant, term or condition of this Lease by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party to any act of the other party requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.
18.5 Whenever a period of time is herein prescribed for action to be taken by either party hereto, such party shall not be liable or responsible for and there shall be excluded from the computation of any such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations or restrictions or any other causes of any kind whatsoever which are beyond the reasonable control of such party. This provision shall not excuse or extend the time for payment of any monetary obligation of Tenant to Landlord. At any time when there is outstanding a mortgage, deed of trust or similar security instrument covering Landlord's interest in the Premises, and Tenant is given written notice thereof, including the address of the holder of the indebtedness secured thereby, Tenant may not exercise any remedies for default by Landlord hereunder unless and until the holder of the indebtedness secured by such mortgage, deed of trust or similar security instrument shall have received written notice of such default and a reasonable time for curing such default shall thereafter have elapsed.
18.6 This Lease and the exhibits attached hereto contain the entire agreement between the parties, and no agreement shall be effective to change, modify or terminate this Lease in whole or in part unless such agreement is in writing and duly signed by the party against whom enforcement of such change, modification or termination is sought.
18.7 Tenant warrants that it has had no dealing with any broker or agent in connection with the negotiation or execution of this Lease. If any agent or broker shall make a claim for a commission or fee as a result of the actions or alleged actions of Tenant, Tenant shall be responsible for payment thereof and hereby indemnifies and holds Landlord harmless from such claim for commission or fees.
18.8 If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the Lease Term, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added as a part of this Lease a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible in order to make such clause or provision legal, valid and enforceable.
18.9 Tenant warrants that it has the full right, power and authority to enter into this Lease and to carry out Tenant's obligations under this Lease, and the person signing this Lease on behalf of Tenant has been duly authorized by Tenant to execute this Lease.
18.10 The terms, provisions and covenants contained in this Lease shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors in interest and legal representatives except as otherwise herein expressly provided.
18.11 Notwithstanding anything contained in this Lease to the contrary, Landlord does not warrant or represent that the Premises contains any particular number of square feet, and the Rental specified in this Lease shall not vary based upon the actual number of square feet contained in the Premises.
18.12 The submission of this Lease to Tenant for examination does not constitute an offer, reservation or option in favor of Tenant, and Tenant shall have no rights with respect to this Lease or the Premises unless and until Landlord shall execute a copy of this Lease and deliver the same to Tenant.
18.3 Nothing herein expressed or implied is intended, or shall be construed, to confer upon or give to any person or entity, other than the parties hereto, any right or remedy under or by reason of this Lease.
Executed on the dates set forth below.
| LANDLORD: |
| BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM, for the use and benefit of THE UNIVERSITY OF TEXAS |
| _______________________________ |
Date:______________________
| By:_____________________________ |
| Name:___________________________ |
| Title:____________________________ |
| Approved as to Content: |
| _______________________________ |
| Name:__________________________ |
| Title:___________________________ |
| TENANT: |
| _______________________________ |
| _______________________________ |
Date:____________________
| By:_____________________________ |
| Name:__________________________ |
| Title:____________________________ |
List of Exhibits to be Attached:
A - Land
B - Tenant's Equipment
C - Premises
D - Non-exclusive Easement (This exhibit is to be attached only if a non-exclusive easement is intended to be granted to the Tenant.)
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Last updated April 2, 1997