Texas-Houston-1147 Brittmoore Road Office Lease - Brittmoore Interests and Chelsea Market Systems LLC
OFFICE LEASE
THIS LEASE, effective September 15, 2000 ("Lease"), is made by and
between Brittmoore Interests, a partnership with principal offices at 9211 Reid
Lake Drive, Houston, Texas 77064 (hereinafter referred to as "Lessor"), and
Chelsea Market Systems, LLC, a limited liability corporation formed in the state
of Delaware and with its principle offices at 1147 Brittmoore, Road Houston,
Texas 77043-5003 (hereinafter referred to as "Lessee").
WITNESSETH: That the said Lessor hereby leases and demises unto the
said Lessee the following described premises: the office building located at
1147 Brittmoore Road, Houston, Texas 77043-5003, which includes 9,700 square
feet of office building ("Premises") and the surrounding parking area and
grounds
TO HAVE AND TO HOLD the Premises from September 15, 2000, for the term of
one (1) year thereafter, the said Lessee paying to the Lessor the monthly rent
of eight thousand two hundred forty-five dollars ($8,245), [$ 98,940 per year],
or eighty-five cents ($.85) per square foot first being due on September 15,
2000, (prorated for the first partial month) which said sum is to be paid
concurrent with the execution of this document and acknowledged herein, and the
remaining eleven payments, in equal amounts, due on the 1st day of each
succeeding month during the term of this Lease, subject to the following
covenants:
1. Lessor grants to Lessee four (4) options to extend the term of this Lease
for a period of one (1) year each ["Extension Term(s)"]. Lessee shall
provide written notice of its intention to extend the term at least ninety
(90) days prior to the expiration of the then-current term. All terms and
conditions of this Lease shall continue in full force and effect during any
Extension Term, excepting only that monthly rent shall be increased,
effective the first day of each Extension Term, to: the product, obtained
by multiplying the monthly rent in effect during the last month of the
then-current term by a fraction, the numerator of which is the Index
published nearest but prior to the commencement date of the recently
exercised Extension Term, and the denominator of which is the Index
published nearest but prior to the commencement of the prior term.
The term "Index" means the Consumer Price Index for Urban Wage Earners and
Clerical Workers, published by the Bureau of Labor Statistics of the United
States Department of Labor for the Greater Houston, Texas Metropolitan
Area.
2. The Lessee hereby covenants with the Lessor that the Lessee will pay the
rent herein reserved at the times and in the manner aforesaid, and will
pay, directly to providers in a timely manner, all charges for utilities,
services, maintenance, and repairs, including but not limited to gas,
electricity, water, security, landscaping/lawn care, trash disposal,
extermination, telephone, and taxes imposed against the Premises. Should
said rent or charges herein provided for at any time remain due and unpaid
for a period of ten (10) days following receipt of written notice of
non-payment, Lessor may at Lessor's option, consider Lessee a Lessee at
sufferance and immediately re-enter upon the Premises and the entire rent
for the monthly rental period then next ensuing shall at once be due and
payable and may be immediately collected by distress or otherwise. The
Lessee will not use or permit the
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Premises to be used for any illegal or improper purposes, nor permit the
disturbance, noise or annoyance whatsoever, detrimental to the Premises or
to the comfort of the other Lessees, if any, of said building or its
neighbors; and will not sublet or assign this lease nor any part thereof
without the written consent of the Lessor, which consent shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, Lessee
may, upon notice to but without the consent of Lessor, assign or sublet
this Lease in the following circumstances: (i) in the event of a sale or
other transfer of all or substantially all of the stock and/or assets of
Lessee; (ii) in the event of a merger or consolidation; and/or (iii) an
assignment or sublet to a parent, subsidiary or affiliated entity.
3. The Lessee will keep the non-structural interior of the Premises, and all
windows, doors, fixtures, interior walls, pipes, and other appurtenances,
together with the parking lot and landscaping surrounding the Premises
(except as set forth below) in good and substantial repair and in clean
condition, damage by fire, storm or other casualty excepted; and will
exercise all reasonable care in the use of halls, stairs, bathrooms,
closets, and other fixtures and parts of the Premises; and will also permit
the Lessor or Lessor's agents or employees, at all reasonable times upon
reasonable notice, to enter into the Premises and inspect the condition
thereof, and make such repairs as may be necessary; and will at the
expiration of said term, without demand, quietly and peaceably deliver up
the possession of the said Premises in good state and condition, normal
wear and tear, damage or destruction by Lessor, fire, storm or other
casualty excepted.
4. The Lessor shall keep, at its sole cost and expense, all structural
portions of the Premises, the walls, foundation, roof and roof components
and utilities to and under the floor slab of the Premises, plumbing,
mechanical, electrical and HVAC systems in good condition and repair.
Additionally, Lessor shall, at its sole cost and expense, replace the
parking lot, perform any major resurfacing required thereof, and replace
any and all landscaping, as necessary.
5. The Lessor hereby covenants with the Lessee that in case the building in
which the Premises is located and/or the Premises or any part thereof,
shall at any time be destroyed or so damaged by fire,storm or other
casualty as to render same unfit for occupation or use, said Lessor shall
have the option to terminate this Lease, or to repair and rebuild the
Premises refunding or foregoing the rents hereby reserved, or a fair and
just portion thereof, according to the damage sustained, until the Premises
are repaired and fit for occupancy and use; and that the Lessee may quietly
hold and enjoy the Premises without any interruption by the Lessor or any
person claiming under the Lessor.
6. Insurance.
A. Liability Insurance.
(1) Lessee shall, at Lessee's expense, obtain and keep in
force during the term of this Lease a policy of combined
single limit, general commercial liability insurance
covering bodily injury and property damage insuring Lessee
(and Lessor and Lessor's mortgagee as additional insureds)
against any liability arising out of the use or, occupancy
of the Premises. Such insurance shall be a combined
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single limit policy in an amount not less than One Million
Dollars ($1,000,000) per occurrence. Lessee shall maintain
Worker's Compensation insurance at least in amounts required
by the State of Texas. Lessee may carry such insurance in a
blanket form of coverage.
(2) Lessor shall maintain general commercial liability
insurance covering bodily injury and property damage with
minimum limits of Two Million Dollars ($2,000,000.00) per
occurrence for the Premises and the surrounding parking lot
and grounds. Such coverage may be carried in the form of
primary and any other secondary coverage carried by Lessor
including Lessor's umbrella policy, but which shall at all
times total a minimum of Two Million Dollars
($2,000,000.00).
B. Property Insurance.
(1) Lessor shall obtain and keep in force during the term of
this Lease a policy or policies of insurance covering loss
or damage to the Premises, in the amount of the full
replacement value thereof, as the same may exist from time
to time, but in no event less than ninety percent (90%) the
total amount required by lenders having liens on the
Premises, insuring the Premises against all perils included
within the classification of fire, extended coverage,
vandalism, malicious mischief, flood (in the event same is
required by a lender having a lien on the Premises), and
special extended perils ("all risk" as such term is used in
the insurance industry). Said insurance shall provide for
payment of loss thereunder to Lessor or to the holders of
mortgages or deeds of trust on the Premises.
(2) Lessee shall maintain property insurance on all of
Lessee's personal property in the Premises; provided,
however, that Lessee may self-insure plate glass or any
other insurance required under this provision. Lessee shall
replace all damaged plate glass except that damaged by
Lessor or its agents or replace any other personal property
at Lessee's sole cost, excepting for costs incurred for any
damage, if caused by Lessor or its agents.
C. Mutual Waiver of Subrogation. Lessee and Lessor each hereby release
and relieve the other, and waive their entire right of recovery
against the other for loss or damage arising out of or incidental to
the perils insured against under this paragraph, which perils occur
in, on or about the Premises and/or the surrounding parking lot and
grounds, whether due to the negligence of the other party or their
respective agents, employees, contractors and/or invitees. Lessee and
Lessor shall, upon obtaining the policies of insurance required
hereunder, give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
7. Indemnity.
(a) Except for the negligence or willful misconduct of
Lessor or its agents, Lessee shall indemnify and hold
harmless Lessor, its members, agents, contractors, employees
and invitees, from and against any and all claims arising
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from Lessee's use of the Premises, or from the conduct of
Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises and
shall further indemnify and hold harmless Lessor, its
members, agents, contractors, employees, and invitees, from
and against any and all claims arising from any breach or
default in the performance of any obligation on Lessee's
part to be performed under the terms of this Lease, or
arising from any negligence or willful misconduct of the
Lessee, or any of Lessee's agents, contractors, or
employees, and from and against all costs, attorney's fees,
expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon; and in
case any action or proceeding be brought against Lessor by
reason of any such claim, Lessee, upon written notice from
Lessor, shall defend the same at Lessee's expense;
alternatively, Lessee may select its own counsel, at
Lessor's expense; such indemnity shall survive the
expiration or earlier termination of this Lease. Excepting
claims arising out of the negligence or willful misconduct
of Lessor or its agents, Lessee, as a material part of the
consideration to Lessor, hereby assumes all risk of damage
to the Premises or injury to person, in, upon or about the
parking area and ground surrounding the Premises arising
from any cause and Lessee hereby waives all claims in
respect thereof against Lessor.
(b) Except for the negligence or willful misconduct of
Lessee or its agents, Lessor shall indemnify and hold
harmless Lessee, its shareholders, officers, directors,
members, agents, contractors, employees, and invitees, from
and against any and all claims arising from Lessor's use or
ownership of the The parking and landscaped area surrounding
the Premises, or from activity, work or things done
permitted or suffered by Lessor in or about the common areas
of the The parking and landscaped area surrounding the
Premises and shall further indemnify and hold harmless
Lessee from and against any an all claims arising from any
breach or default in the performance of any obligation on
Lessor's part to be performed under the terms of this Lease,
or arising from any negligence or willful misconduct of the
Lessor, or any of Lessor's agents, contractors, or
employees, and from and against all costs, attorney's fees,
expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon; and in
case of action or proceeding be brought against Lessee by
reason of any such claim, Lessor, upon written notice from
Lessee, shall defend the same at Lessor's expense;
alternatively, Lessee may select its own counsel, at
Lessor's expense; such indemnity shall survive the
expiration or earlier termination of this Lease. Excepting
claims arising from the negligence or willful misconduct of
Lessee or its agents, Lessor, as a material part of the
consideration to Lessee, hereby assumes all risk of damage
to The parking and landscaped area surrounding the Premises
or injury to persons, in, upon or about the Common Areas
arising from any cause and Lessor hereby waives all claims
in respect thereof against Lessee.
8. Insurance Requirements. All of the foregoing policies required pursuant to
the provisions hereinabove shall be written with companies with at least a
Best's rating of A-:VIII and each such company shall be licensed and
qualified to do business in the State of Texas
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and shall provide that the other party hereto shall be given a minimum of
ten (10) days written notice by any such insurance company prior to
cancellation or termination of such coverage.
9. Lessor Defaults. Except in the case of an emergency, in which event
immediate action shall be required by Lessor, Lessor shall not be in
default unless Lessor fails to perform obligations required of Lessor
within thirty (30) days after written notice by Lessee to Lessor and to the
holder of any mortgage or deed of trust covering the Premises and/or The
parking and landscaped area surrounding the Premises whose name and address
shall have theretofore been furnished to Lessee in writing; provided,
however, that if the nature of Lessor's obligations is such that more than
thirty (30) days are required for performance, then Lessor shall not be in
default if Lessor commences performance within such thirty (30) day period
and thereafter diligently prosecutes the same to completion. If the default
by Lessor has not been cured within the time limits prescribed herein,
Lessee may, along with any other remedies available at law or in equity,
terminate the Lease as a result of Lessor's default, or cure the default
and offset any claimed amount, plus interest at eighteen percent (18%) per
annum (provided, however, that such interest rate shall not exceed the
maximum rate allowed by law) against any minimum or additional Rent as it
becomes due.
10. Condemnation. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs. If twenty percent (20%)
of the Premises or more than twenty-five percent (25%) of the The parking
and landscaped area surrounding the Premises is taken by condemnation,
Lessor or Lessee may, at its respective option, by electing in writing
within thirty (30) days after Lessor shall have given Lessee written notice
of such taking (or in the absence of such notice, within thirty (30) days
after the condemning authority shall have taken possession), to terminate
this Lease as of the date the condemning authority takes such possession.
Notwithstanding the foregoing, Lessee shall be entitled to an abatement of
Rent in the event any entry by Lessor or Lessor Work required with respect
to a partial condemnation of the Premises interferes with Lessee's
operations, to the extent Lessee is required to close and such abatement
shall continue until Lessee can resume operating.
If Lessor or Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the
portion of the Premises remaining, except that the Rent shall be
proportionately reduced. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat
of the exercise of such power shall be property of Lessor, whether such
award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Lessee shall be entitled to any award for relocation costs
and loss of or damage to Lessee's trade fixtures and removable personal
property. In the event that this Lease is not terminated by reason of such
condemnation, Lessor shall to the extent of severance damages received by
Lessor in connection with such condemnation, repair any damage to the
Premises caused by such
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condemnation except to the extent that Lessee has been reimbursed therefore
by the condemning authority. In addition, Lessee shall be entitled to claim
any other award allowed under law provided such claim does not diminish or
adversely affect Lessor's award.
11. Lessee's Rights. If Lessor fails to perform Lessor's obligations under this
Paragraph 6, or under another Paragraph of this Lease, within thirty (30)
days after receipt of written notice of such default (except in the case of
an emergency, in which case no notice shall be required); provided, however
if such default is not capable of being cured within such thirty (30) day
period, so long as Lessor is diligently attempting to obtain a cure, Lessor
shall have such additional time to attempt to obtain such cure, Lessee may
at its option (but shall not be required to) perform such obligations on
Lessor's behalf and put the same in good order, condition and repair, and
the cost thereof shall be due and payable by Lessor within ten (10) days
after written notice to Lessor, or, in the alternative, Lessee may offset
said amounts against Rent.
12. The parties hereto waive trail by jury and agree to submit to the personal
jurisdiction and venue of a court of subject matter jurisdiction located in
Harris County, Texas.
13. Except in the case of an emergency, in which event immediate action shall
be required by Lessor, Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within thirty (30) days after
written notice by Lessee to Lessor and to the holder of any mortgage or
deed of trust covering the Premises whose name and address shall have
theretofore been furnished to Lessee in writing; provided, however, that if
the nature of Lessor's obligations is such that more than thirty (30) days
are required for performance, then Lessor shall not be in default if Lessor
commences performance within such thirty (30) day period and thereafter
diligently prosecutes the same to completion. If the default by Lessor has
not been cured within the time limits prescribed herein, Lessee may, along
with any other remedies available at law or in equity, terminate the Lease
as a result of Lessor's default, or cure the default and offset any claimed
amount, plus interest at eighteen percent (18%) per annum (provided,
however, that such interest rate shall not exceed the maximum rate allowed
by law) against any base or additional rent as it becomes due.
14. Any notice required or permitted to be given hereunder shall be in writing
and may be given by personal delivery, courier or expedited mail service or
by certified mail, and if given personally or by mail, shall be deemed
sufficiently given if addressed to Lessee or to Lessor at the address noted
below. Either party may by notice to the other specify a different address
for notice purposes. A copy of all notices required or permitted to be
given to Lessor or Lessee hereunder shall be concurrently transmitted to
such party or parties at such address as Lessor or Lessee may from time to
time hereafter designate by notice to the other party.
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Notices to Lessee shall be sent to the following address:
Chelsea Market Systems, LLC
1147 Brittmoore Road
Houston, Texas 77043-5003
Notices to Lessor shall be sent to the following address:
Brittmoore Interests
9211 Reid Lake Drive
Houston, Texas 77064
15. Neither party may assign this Lease without the written consent of the
other party. Notwithstanding the foregoing, Lessee may assign this Lease
upon notice to but without Lessor's consent in the event of a merger,
consolidation or sale or other transfer of all or substantially all of the
membership interests of Lessee.
16. Holding Over. If Lessee, with Lessor's consent, remains in possession of
the Premises or any part thereof after the expiration of the term hereof,
such occupancy shall be a tenancy from month to month upon all the
provisions of the Lease pertaining to the obligations of Lessee. Options
granted under the terms of this Lease shall be deemed terminated and be of
no further effect during said month to month tenancy.
17. Binding Effect; Choice of Law. This Lease shall bind the parties, their
personal representatives, successors and assigns. This Lease shall be
governed by the laws of the state wherein the Premises are located.
18. Attorney's Fees. If either party named herein brings an action to enforce
the terms hereof or declare the rights hereunder, the prevailing party in
any such action shall be entitled to its reasonable attorney's fees to be
paid by the losing party, as fixed by the court.
19. Quiet Possession. Upon Lessee paying the Rent for the Premises and
observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have
quiet possession of the Premises for the entire term hereof subject to all
of the provisions of this Lease.
20. Force Majeure. Lessor and/or Lessee shall be excused for the period of
delay in the performance of any of their respective obligations hereunder,
excepting Lessor's obligation to pay a penalty for late delivery pursuant
to Paragraph 3.3 hereof, and excepting Lessee's monetary obligations
hereunder, and shall not be considered in default, when prevented from so
performing due to a labor strike, riot, war, fire or other casualty, or
through Acts of God.
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The parties hereto have executed this Lease on the dates specified
immediately below their respective signatures.
LESSOR LESSEE
Brittmoore Interests Chelsea Market Systems, LLC
a Texas partnership a Delaware Limited Liability Corporation
By: /s/ JAY CONLIN By: /s/ HARRY LEVY
------------------ -------------------
Jay Conlin Harry Levy
Partner President
Dated: March 22, 2001 Dated: March 22, 2001.