HomeMy WebLinkAboutEDCRes2016.11.02ANNA ECONOMIC DEVELOPMENT CORPORATION
RESOLUTION NO.9t 1& 11-C9, CL��
A RESOLUTION OF THE ANNA ECONOMIC DEVELOMENT CORPORATION
APPROVING A LEASE AGREEMENT WITH NETWORKING U, LLC DBA INC-CUBE
AND AUTHORIZING THE LEASE UNDER SAID AGREEMENT FOR PROPERTY
LOCATED AT 312 NORTH POWELL PARKWAY
WHEREAS, the EDC wishes to enter into a Lease Agreement with Networking U, LCC
DBA INC-CUBE, for property owned by the EDC located at 312 N Powell Parkway
NOW, THEREFORE, BE IT RESOLVED BY THE ANNA ECONOMIC DEVELOPMENT
CORPORATION THAT:
Section 1. Recitals Incorporated
The recitals set forth above are incorporated herein for all purposes as if set forth in full.
Section 2. Approval of Agreement
The EDC hereby approves the Lease Agreement ("Agreement"), attached hereto as
EXHIBIT A, incorporated herein for all purposes, and authorizes the EDC President to
execute same on its behalf, subject to approval as to form by legal counsel for the EDC,
final content by the EDC Chief Administrative Officer.
PASS D AND APPROVED by the Anna Economic Development Corporation on this
, day of k OVewd. ef"; 2016.
ATTEST:
J/v r4, 1� Z10
6? all
Constance Stum
EDC President
EDC OF ANNA, TEXAS RESOLUTION NO.
APPROVED:
Sherilyn
EDC Se
4 J" ( 0 ) PAGE 1 OF 1
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is entered into by and between ANNA
ECONOMIC DEVELOPMENT CORPORATION, a Type A corporation created pursuant
to the Texas Development Corporation Act of 1979, as amended and codified
(`Landlord") and Networking U, LLC, a Texas limited liability company ("Tenant").
For valuable consideration the parties agree and act as follows:
SECTION 1. Definitions. The following terms have the meanings set forth
below:
(a) Effective Date. The effective date of this Lease is the day of
/U ale i ] , 2016.
(b) Landlord. The Anna Economic Development Corporation.
(c) Leased Space. A certain portion (the "Leased Space") of the one-story
building that is approximately 2,784 total square feet and nonexclusive use of the
parking lot located on real property at 312 N. Powell Parkway, Anna, Texas 75409
(collectively, the "Premises") located in the City of Anna, Collin County, Texas,
described in the legal description and survey attached hereto as Exhibit A and in
the building floor plan and sketches attached hereto as Exhibit A-1, together with
nonexclusive use of (i) any and all common improvements of the building and on
the Premises now or hereafter situated on the Premises("Improvements"), (ii) any
and all appurtenances, easements and privileges pertaining to the Premises, the
Improvements and/or the items listed in clauses (i) and (ii) above. Said Lease
Space are those portions of the Premises marked building on the Premises as
marked and labeled on Exhibit A-2 attached hereto. Notwithstanding any other
provision of this Lease, the Common Area shall be shared with and used by any
other tenant(s) leasing any space on the Premises.
(d) Lease Year. Each 12-month period commencing on the first day of the
first full month of the Term of this Lease following the Effective Date, or
anniversary of such date, if this Lease is renewed under Section 2(c) below.
(e) Permitees. All partners, officers, directors, employees, agents,
contractors, customers, visitors and invitees of Tenant at the Leased Space.
(f) Permitted Exceptions. The conditions, restrictions, easements and
encumbrances, if any, affecting title to the Premises set forth in the title policy
attached hereto as Exhibit B.
(g) City Council. The City Council of the City of Anna, Texas.
LEASE AGREEMENT PAGE 1 OF 15
SECTION 2. Demise. Terns.
(a) Demise and Grant of Leased Space. Landlord hereby leases to Tenant
and Tenant accepts from Landlord under the terms, provisions and conditions of
this Lease the Leased Space commencing on the Effective Date hereof and
continuing until the expiration or earlier termination of the Term as hereinafter
provided.
(b) Term. The primary term ("Primary Term") of this Lease shall
commence as of the Effective Date hereof, and shall expire on the last day of the
twelfth full month following the Effective Date, subject to earlier termination as
provided elsewhere in this Lease and to the Renewal Option described in Section
2(g) below. The Primary Term and any Renewal Term or extension thereof pursuant
to Section 2(c) or 2(g) below is referred to in this Agreement as the "Term".
(c) Renewal. This Lease shall automatically renew for 12-month periods
beginning immediately after the end of each successive Lease Year ---subject to
earlier termination that may occur under the terms of this Lease —unless, subject to
Tenant's Renewal Option in Section 2(g) below, either Landlord or Tenant delivers
written notice, one to the other, at least 90 days in advance of the end of the
current Lease Year, of the intent that this Lease be terminated, in which case this
Lease shall terminate at the end of said Lease Year.
(d) Quiet Enjoyment, Upon Tenant's payment of all Rent hereunder as
same becomes due and observance and performance of all of the covenants, terms
and conditions to be observed and performed by Tenant pursuant to this Lease,
Tenant shall have throughout the Term, peaceful, quiet and undisturbed use and
possession of the Leased Space and all rights and privileges appertaining thereto,
subject to the terms, conditions and provisions of this Lease.
(e) Landlord's Title, Subordination. Landlord covenants, represents and
warrants to Tenant as follows:
(1) Title. Landlord hereby represents and warrants that it owns good
and indefeasible fee simple title in and to the Premises, subject only to the
Permitted Exceptions, and has full right and authority to make this Lease. This
Lease shall not be recorded.
(2) No Actions. There are no actions, suits or proceedings pending or
to the best of Landlord's knowledge, threatened against Landlord and affecting any
portion of the Premises, at law or in equity, or before any federal, state, municipal
or other governmental court, department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
(3) Authority. The execution and consummation of this Lease by
Landlord has been duly authorized and does not result in a breach of any of the
LEASE AGREEMENT PAGE 2 of 15
terms or provisions of, or constitute a default under, any indenture, agreement,
instrument or obligation to which Landlord is a party or by which the Premises or
any portion thereof is bound. However, notwithstanding the foregoing or any term
or provision of this Lease, and all rights and obligations of Landlord and Tenant
hereunder are subject to and shall not be effective unless and until there has been
formal approval by the City Council of this Lease at a duly noticed public meeting.
(f) Condition of Leased Space. TENANT ACKNOWLEDGES THAT TENANT
HAS INSPECTED THE LEASED SPACE AND ACCEPTS THE LEASED SPACE AS STATED
IN THE CERTIFICATION ATTACHED HERETO AS EXHIBIT C AND DELIVERED BY
TENANT TO LANDLORD. FURTHER, IF AT ANY TIME THIS LEASE SHALL BE FOUND
OR DECLARED NULL, VOID, ILLEGAL OR OTHERWISE INVALID FOR ANY REASON
BY A COMPETENT COURT OR TRIBUNAL WITH PROPER JURISDICTION, TENANT
EXPRESSLY COVENANTS AND WARRANTS THAT IT SHALL CEASE ALL OPERATIONS
AND VACATE AND SURRENDER THE LEASED SPACE FORTHWITH IN ACCORDANCE
WITH THE SURRENDER REQUIREMENTS UNDER SECTION 10(e) AND OTHER
APPLICABLE PROVISIONS OF THIS LEASE AND AGREES THAT LANDLORD SHALL
NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR
OTHER DAMAGES CAUSED BY ANY SUCH FINDING OR DECLARATION OF NULLITY,
VOIDNESS, ILLEGALITY OR INVALIDITY.
(g) Tenant's Renewal Option. Tenant shall have the option (the "Renewal
Option") to extend the Primary Term of this Lease upon the same terms, covenants
and conditions as those contained in this Lease, for one (1) additional period of
twelve (12) months (the "First Renewal Term"), which First Renewal Term shall
commence on the date immediately succeeding the expiration of the Term of this
Lease, provided that as of the expiration of the Term this Lease shall not have been
previously terminated, and no Event of Default shall have been committed by
Tenant and remain uncured after notice and the applicable cure period. Such
Renewal Option may be exercised with respect to the entire Premises only and shall
be exercisable by Tenant delivering the Renewal Notice to Landlord at least thirty
(30) days prior to the expiration of the Term. The Tenant may exercise the First
Renewal Option under this Section 2(g) only once to extend the Primary Term for
twelve months. Any subsequent renewals shall be pursuant to Section 2(c) and not
subject to this Section 2(g).
(h) Reception Area and Conference Room_. Tenant's Leased Space
comprises is the reception area/lobby of the building that includes said Leased
Space. Notwithstanding any other provision of this Lease, Tenant shall not interfere
with the use of the Leased Space by other tenants and the Leased Space shall be
considered to be part of the Common Area; provided, however, that other tenants'
use of the Leased Space is limited to use as a waiting area for said tenants'
respective customers, contractors and other authorized guests as well as for access
to enter and leave the building, said right of access to be extended to tenant and
tenant's respective customers, contractors and other authorized guests. The room
labeled "Conference Room" on Exhibit A-2 is part of the Common Area and shall be
shared with other tenants in accordance with this subsection. Use of the Conference
LEASE AGREEMENT PAGE 3 of 15
Room shall be scheduled by reserving its use by providing all other tenants of the
Premises with advance written notice at least 24 hours in advance of the time of
such reservation. Reservations shall be scheduled in hourly periods. The notice that
is made first in time shall control in the event of any conflict. Any dispute regarding
the use of the conference room shall be submitted to the Landlord for final decision
in Landlord's sole discretion. Landlord reserves the right to require certain
procedures for scheduling use of the Conference Room and said procedures shall be
deemed to be binding and material requirements under this Lease.
SECTION 3. Rent and Taxes. Tenant shall pay Landlord the following
amounts:
(a) Rent. Tenant shall pay $1.00 per month as rent ("Rent") for the area
identified as "Leased Space" and "Common Area" on the attached Exhibit A-2 at the
Premises, which shall be due within ten (10) business days of the first day of the
each month.
(b) Taxes. Landlord and Tenant acknowledge and agree that to the extent
this Lease results in any part of the Premises being subject to ad valorem taxes
(""Taxes"), Tenant shall be liable to pay for any such Taxes as they become due and
upon receipt of any tax statement or invoice for same, subject to the following. If
during the Term of this Agreement, Taxes shall become due and owing concerning
the Premises or any portion thereof, Tenant shall thereafter pay directly to the
applicable taxing entity, if permitted by such taxing entity, or, in the alternative, to
Landlord, the Taxes assessed against the Premises or any part thereof for any prior,
current or subsequent Lease Year during any Term of the Lease. In such event, any
such Taxes shall be paid prior to the delinquency date for such Taxes, but in no
event earlier than ten days after written notice of the Tax due is delivered to
Tenant, along with copies of statements of assessed value and tax statements
applicable to each Lease Year to which such taxes apply. Tenant shall have the first
and prior right to contest the amount or validity of the taxes pertaining to the
Premises by appropriate administrative and legal proceedings brought either in its
own name, Landlord's name, or jointly, as Tenant deems appropriate. Landlord
shall reasonably cooperate with Tenant in its efforts to minimize the taxes to the
lowest possible level but Landlord shall not be required to incur any cost or expense
in connection therewith. Landlord shall from time -to -time execute and deliver to
Tenant whatever documents may be reasonably required by governmental
authorities to evidence Tenant's authority to contest taxes attributable to the
Premises. Landlord will send Tenant copies of any assessed values and statements
received by Landlord promptly upon receipt and Tenant shall have the right, at its
own expense, in good faith, to contest any such values, Taxes or payments in lieu
of taxes and permit the items so contested to remain unpaid during the period of
contest and any appeal therefrom, provided that prior to the date the taxes would
become delinquent, Tenant provides a bond or Other security required by applicable
law and otherwise reasonably satisfactory to Landlord in the full amount of the
unpaid taxes, together with any penalties, interest or fees attributable thereto that
LEASE AGREEMENT PAGE 4 OF 15
are due or are reasonably anticipated to accrue between the date thereof and the
date of final payment of the taxes. Tenant shall be solely responsible for any taxes
due and owing with respect to Tenant's personal property. Landlord shall be
responsible for payment of any and all taxes attributable to any income of Landlord
related to the Premises.
SECTION 4. ImRrovernents, Signs, Additions and Reaairs.
(a) Delivery of Leased Space. Landlord shall deliver exclusive possession of
the Leased Space to Tenant upon the Effective Date, with renovations completed,
suitable for commercial office use, empty, broom clean, and with working HVAC,
subject only to the provisions and terms of this Lease and the Permitted Exceptions.
(b) Alterations and Improvements. with the exception of signs erected in
conformance with applicable laws and ordinances, and construction of
Improvements as approved in writing by Landlord, approval not to be unreasonably
withheld, and, if required under City ordinance(s), set forth on one or more site
plans submitted to and formally approved by the City Council during a duly posted
meeting, and constructed in accordance with construction plans submitted to and
approved in writing by the City or City staff, Tenant may not at any time construct,
alter, change, and/or demolish any signs or Improvements now or hereafter
situated on the Premises. If any such construction by Tenant is at any time
approved:
(1) All such work shall be performed in a good and workmanlike
manner, in accordance with accepted standards of engineering and architecture, if
applicable, and in accordance with local, state and federal law, including but not
limited to the Americans with Disabilities Act;
(2) Such construction, alteration, additions, changes or
demolishment shall be in compliance with all applicable building codes, zoning,
rules, regulations and ordinances affecting construction of such alterations,
additions, and changes and shall be commenced only after Tenant has been duly
granted all applicable permits for same; and
(3) At Landlord's election, Landlord may serve as the general
contractor for the construction of the Tenant Improvements. In such event,
Landlord and Tenant shall enter into a construction contract on terms and
conditions mutually acceptable to each of them pursuant to which Landlord agrees
to construct the Tenant Improvements, Tenant agrees to pay all third -party costs
approved by Tenant with respect to such construction with no additional costs to be
charged to Landlord and with reasonable fees being payable by Tenant to Landlord
for its services as general contractor, and Tenant agrees to indemnify, defend
(using counsel acceptable to Landlord in its reasonable discretion), and hold
harmless Landlord from and against any liability, damages and third -party costs it
may incur as a result of its so acting as the general contractor for the Tenant
Improvements.
LEASE AGREEMENT PAGE 5 OF 15
(c) No Mechanic's Liens. Tenant shall not permit any mechanic's or
materialman's liens to be filed against Landlord's interest in the Premises arising
out of the Tenant Improvements (unless the same are fully bonded so as to cause
same to be removed in accordance with applicable law), and Tenant shall
indemnify, defend (using counsel acceptable to Landlord in its reasonable
discretion), and hold harmless Landlord from and against any costs, liability or
expense, including attorney fees, attributable to any such liens. Tenant's obligations
under this Section shall expressly survive the expiration or earlier termination
of this Lease.
(d) Environmental. Tenant will conduct its business in a lawful manner and
will not make or permit any unlawful use of the Leased Space. Tenant will, at its
own expense, promptly comply with all laws, regulations, and ordinances affecting
the Leased Space and the cleanliness, safety, occupancy, and use thereof. TENANT
SHALL INDEMNIFY, DEFEND (USING COUNSEL ACCEPTABLE TO LANDLORD IN ITS
REASONABLE DISCRETION) AND HOLD HARMLESS LANDLORD FROM AND AGAINST
ANY COST, LIABILITY OR EXPENSE ARISING OUT OF OR ATTRIBUTABLE TO ANY
CLAIMS, DEMANDS, CAUSES OF ACTION, FINES, PENALTIES, LIABILITY OR
EXPENSES (INCLUDING ATTORNEY FEES AND COURT COSTS) ARISING OUT OF OR
RELATED TO THE EXISTENCE, REMOVAL OR DISPOSAL OF ANY TOXIC OR
HAZARDOUS SUBSTANCES OR MATERIALS WITHIN OR UPON THE LEASED SPACE
CAUSED BY TENANT, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES DURING
THE TERM OF THIS LEASE FOLLOWING THE EFFECTIVE DATE. FOR PURPOSES
HEREOF, THE PHRASE "TOXIC OR HAZARDOUS SUBSTANCES OR MATERIALS"
SHALL INCLUDE ITEMS COVERED BY THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, 42 U.S.C. §§9601-
75(1986), AS AMENDED BY THE SUPERFUND AMENDMENT AND REAUTHORIZATION
ACT, PUB. L. NO. 99-499, 100 STAT. 1613 (1986) ("CERCLA"r), THE TOXIC
SUBSTANCES CONTROL ACT, 15 U.S.C. §2601 ET SEQ., THE CLEAN WATER ACT,
33 U.S.C. §1251 ET SEQ., THE SAFE DRINKING WATER ACT, 42 U.S.C. §§300(f)-
300(j), AND OTHER FEDERAL, STATE AND LOCAL LAWS NOW OR HEREAFTER IN
EFFECT GOVERNING THE EXISTENCE, REMOVAL OR DISPOSAL OF TOXIC OR
HAZARDOUS SUBSTANCES OR MATERIALS. Tenant's obligations under this Section
4(d) shall expressly survive the expiration or earlier termination of this Lease.
(e) Repairs. Landlord shall, at its sole cost and expense, perform all repairs
and preventative maintenance necessary to maintain the Leased Space in good
condition and repair, including but not limited to the HVAC system, roof, structural
portions, foundation, exterior portions, windows, interior and exterior walls and
moldings, floors, doors, carpeting, attached light fixtures, plumbing, electrical
wiring, switches and circuitry, exterior grounds and parking areas, all to be repaired
and maintained in a condition suitable for commercial office use, and keep the
Leased Space in compliance with applicable law throughout the Term. Tenant is
otherwise responsible for maintaining the interior of the Leased Space in good
condition, reasonable wear and tear excepted. The foregoing shall not in any way
impair or limit Tenant's right to make alterations or additions to the Leased Space
LEASE AGREEMENT PAGE 6 OF 15
as set forth in Section 4(b) above. Landlord may charge Tenant for reasonable
third party charges for repair of damage to the Leased Space, other than Ordinary
wear and tear, caused by Tenant's negligence, willful misconduct or breach of this
Lease Agreement.
(f) Tenant's Fixtures. Tenant may install in or upon the Leased Space such
trade fixtures and equipment as Tenant deems desirable, provided that Tenant does
so in accordance with a written plan demonstrating the size and configuration of
such fixtures and equipment upon the Leased Space, with said written plan having
been approved in advance by Landlord in writing, said approval not to be
unreasonably withheld. All of said items shall remain Tenant's property whether or
not affixed or attached to the Leased Space. Tenant may remove such items from
the Leased Space at any time during the Term.
(g) Platting, Site Plans, Approvals. Landlord and Tenant acknowledge that
it may be necessary, from time -to -time, for Landlord or Tenant to seek
governmental approvals with respect to platting, zoning, site plans, permitting
and/or obtaining other permits in connection with its use and occupancy of the
Leased Space for the uses permitted hereby (collectively, "Approvals"). Landlord
agrees to reasonably cooperate with Tenant with respect to its obtaining the
Approvals and to execute such documents as may be required of the owner of fee
title to the Leased Space in order for Tenant to obtain the Approvals, provided that
Landlord shall not incur any costs or liabilities in connection therewith, and Landlord
does not guarantee or make any representations with regard to Tenant's ability to
actually obtain the Approvals. Tenant expressly understands and agrees that
approval by the City Council of this Lease does not constitute the City Council's
granting of an Approval and does not bind the City Council to grant or approve any
other Approvals.
SECTION 5. Utilities. Landlord shall at its own expense arrange with the
appropriate utility suppliers for services to the Leased Space, pay all connection,
meter and service charges required to connect utilities to the Leased Space, and
pay such utility suppliers directly for such services; and Tenant shall accept
Landlord's reasonable and customary arrangement for the provision of utilities to
the Leased Space suitable for commercial office use.
SECTION 6. Use. Transfers, or Assignments.
(a) Tenant's Use. Except as prohibited or restricted by the Permitted
Exceptions, Tenant may use the Leased Space for any lawful purpose, including
commercial office use, provided that such purpose is otherwise in conformity with
all applicable site plans, zoning, and Approvals, and other restrictions set forth in
this Lease and which may otherwise apply to the Leased Space. Landlord
represents that the Leased Space are zoned and otherwise appropriate for
commercial office use.
LEASE AGREEMENT PAGE 7 OF 15
(b) Assignment, Subletting. Tenant shall not assign all or any part of this
Lease or sublet all or any part of the Leased Space without Landlord's written
consent, which shall not be unreasonably withheld. In the case of any assignment
or sublease permitted by Landlord, Tenant shall not be released from liability under
this Lease. All assignments and subleases must be in writing and must be binding
on Tenant and the assignee or subtenant. No assignment or sublease may become
effective before Landlord has approved in writing the terms of such written
assignment or sublease.
SECTION 7►. Indemnification, Insurance.
(a) Indemnification. IN ADDITION TO ANY OTHER PROVISIONS OF THIS
LEASE, TENANT SHALL INDEMNIFY, HOLD HARMLESS, AND, AT LANDLORD'S
OPTION, DEFEND (USING COUNSEL ACCEPTABLE TO LANDLORD IN ITS
REASONABLE DISCRETION) LANDLORD AND ITS OFFICERS, DIRECTORS, AGENTS
AND EMPLOYEES (COLLECTIVELY, THE "INDEMNIFIED PARTIES") FROM AND
AGAINST ANY AND ALL LIABILITY, LIENS, CLAIMS, DEMANDS, DAMAGES,
EXPENSES, FEES, COSTS, REASONABLE ATTORNEY FEES AND LITIGATION COSTS,
FINES, PENALTIES, SUITS, PROCEEDINGS, ACTIONS AND CAUSES OF ACTION OF
ANY AND EVERY KIND AND NATURE ARISING OUT OF TENANT'S USE, OCCUPANCY,
CONSTRUCTION, MANAGEMENT OR CONTROL OF THE LEASED SPACE,
IMPROVEMENTS OR TENANT'S OPERATIONS, CONDUCT OR ACTIVITIES, UNLESS
AND TO THE EXTENT THE SAME IS DUE TO THE GROSS NEGLIGENCE OR
INTENTIONAL ACTS OR OMISSIONS OF LANDLORD, ITS AGENTS, EMPLOYEES OR
CONTRACTORS. TENANT'S OBLIGATIONS UNDER THIS SECTION 7(a) SHALL
SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THE LEASE TERM.
FOREGOING INDEMNIFICATIONS ARE EXPRESSLY INTENDED AND SHALL
OPERATE TO PROTECT AND INURE TO THE BENEFIT OF THE INDEMNIFIED
PARTIES EVEN IIF SOME OR ALL OF LIABILITIES ARE ALLEGED OR PROVEN
TO HAVE BEEN CAUSED BY THE NEGLIGENCE OR STRICT LIABILITY OF ANY
ONE OR MORE OF THE INDEMNIFIED PARTIES.
(b) Tenant's Insurance. Tenant shall, at its expense, obtain comprehensive
general liability insurance against all claims on account of bodily injury, personal
injury or property damage, for which Tenant may, as a result of its business
operations or other use of the Leased Space, become liable, with limits of not less
than (1) $1,000,000.00 for bodily injury to or death of any one person,
(2) $2,000,000.00 for any one occurrence for bodily injury to or death of one or
more persons arising out of any one occurrence, and (3) $1,000,,000.00 per
occurrence with respect to any property damage; with a $5,000,000.00 umbrella
policy in addition to the foregoing policies. All polices of insurance to be maintained
by Tenant hereunder may be maintained by way of "blanket policies" insuring the
Leased Space and other premises and/or property owned or operated by Tenant or
its Affiliates, and shall be subject to such self -insured retention as may be included
in Tenant`s policies, all in accordance with Texas law.
LEASE AGREEMENT PAGE 8 of 15
(c) Workers Compensation. Tenant shall maintain workers compensation or
similar insurance affording not less than Texas statutory coverage minimums and
providing not less than statutory limits or benefits for all employees of Tenant
employed at the Leased Space.
(d) Scope. Each insurance or risk policy to be provided by Tenant
hereunder shall name Landlord or its designee as additional insured and shall also
contain a provision whereby the insurer agrees that such policy shall not be
cancelled except after 30 days' written notice to Landlord or its designee. The
insurance policies or duly executed certificates thereof, together with satisfactory
evidence that the premium has been paid, shall be provided to Landlord on or
before the Effective Date of this Lease; and, thereafter, evidence of continuing
insurance and premium payment shall be delivered to Landlord not less than
30 days prior to the expiration of each policy required to be in force hereunder. If
Tenant fails to maintain the required insurance or to deliver evidence of same,
Landlord may, but shall not be obligated to, obtain such insurance and be
reimbursed by Tenant upon demand.
(e) Waiver of Subrogation. Landlord shall not be liable by way of
subrogation or otherwise to Tenant or to any insurance company insuring Tenant
for any loss or damage to any of the property of the Landlord or Tenant covered by
insurance even though such loss or damage might have been occasioned by the
negligence of: (1) Landlord or its officers, directors, employees, agents,
contractors, customers, or visitors and invitees of Landlord at the Premises; or (2)
Tenant or its Permittees. This waiver shall be in effect only so long as the applicable
insurance policies shall contain a clause or endorsement to the effect that the
waiver shall not affect the right of the insured to recover under such policies.
Tenant shall use its best efforts, including payment of any additional premium, to
have its insurance policies contain the standard waiver of subrogation clause. In the
event Tenant's insurance carrier declines to include in such carrier's policies a
standard waiver of subrogation clause, Tenant shall promptly notify Landlord.
SECTION S. Destruction, Condemnation.
(a) Destruction.
(1) Cancellation. Subject to subsection (2), below, if any portion of
the Improvements situated on the Leased Space shall be damaged or destroyed to
the extent that Tenant can no longer peaceably enjoy the Leased Space after
Landlord has had at least 30 days after written notice from Tenant to cure any such
damage or destruction, then this Lease shall terminate at Tenant's sole option and
discretion indicated by written notice from Tenant within 30 days following such
damage or destruction.
(2) Restoration. In the event of damage or destruction not caused by
Tenant's or Landlord's intentional misconduct or breach of this Agreement, and in
the event Tenant has elected not to terminate the lease, Landlord shall, at its sole
LEASE AGREEMENT PAGE 9 OF 15
discretion: (1) remove any debris and cause the Leased Space to be repaired or
restored as Tenant may deem necessary or desirable, but in any event the Leased
Space shall be repaired or restored by Landlord to a safe and sightly condition in
compliance with all applicable laws; or (2) terminate this Lease as indicated by
written notice from Landlord within 30 days following such damage or destruction.
(3) Insurance Proceeds. Subject to any contrary provision of Section
7 above, all of Tenant's insurance proceeds, if any, payable with respect to damage
or destruction of the improvements situated on the Leased Space shall be retained
by and be the property of Tenant.
(b) Condemnation.
(1) Taking of Parkina or Access. In the event of a taking by the
power of eminent domain or conveyance in Lieu thereof (""Taking") of the whole or
any part of the Premises, this Lease shall terminate.
(2) Awards. All compensation awarded for any Taking of the Leased
Space (other than a Taking initiated or consummated by the city of Anna, Texas),
including any interest of Landlord or Tenant therein, shall be the property of
Landlord, and Tenant hereby assigns to Landlord all of Tenant's rights, title and
interest in and to any and all such compensation.
SECTION 9. Default.
(a) Events of Default. The following are events of default ("Events of
Default")
(1) Obli ations. Either party (""Defaulting Party") fails to perform any
obligation, covenant or condition or to comply with any provisions of the Lease and
such failure continues for 30 days after written notice from the other party ("Non -
Defaulting Party"), unless said default requires more than 30 days to cure and the
Defaulting Party commences a cure within 30 days after written notice and
thereafter maintains a diligent effort to complete the cure.
(2) Bankruptcy. Either party files in any court pursuant to any statute
a petition in bankruptcy or insolvency or for reorganization or arrangement or
makes an assignment for the benefit of creditors or any such petition is filed
against a party and a receiver or trustee of all or any portion of that party's
property is appointed and such proceeding is not dismissed or the trusteeship
discontinued within 90 days after such appointment.
(b) Remedies. Upon the occurrence of an Event of Default by either party,
the Non -Defaulting Party shall have the right to terminate this Lease due to the
other's default and has the additional right to pursue a cause of action at law or in
equity. In the event of early termination as a remedy to default, Tenant shall be
liable to Landlord for a prorated portion of the rent and any utility amounts that
would normally be due up and until the date that Tenant surrenders the Leased
LEASE AGREEMENT PAGE 10 of 15
Space in accordance with this Lease, subject to offset for any damages at law or in
equity.
SECTION 10. General Provisions.
(a) Notice. "Notice" shall mean any notice, notification, consent, approval,
request, designation, submission, specification, election or other communication
required or permitted under this Lease. All Notices shall be in writing and shall be
deemed to have been given and received the earlier of (1) the date the Notice is
delivered by one party to the other party personally or delivered to the party's
address by a party or by a delivery service which records delivery dates, or
(2) three days after the Notice is placed in the mail addressed to the other party at
the party"s address, properly stamped, certified or registered mail, return receipt
requested. A party's address shall be as follows or as set forth in a written !Notice to
the other party:
Landlord: Chief Administrative Officer
Anna Economic Development Corporation
111 N. Powell Parkway
Anna, Texas 75409
Fax: 972-924-2620
with a copy to: City Manager
City of Anna, Texas
111 N. Powell Parkway
Anna, Texas 75409
Fax: 972-924-2620
and to: Clark McCoy
Wolfe, Tidwell & McCoy, LLP
2591 Dallas Parkway, Suite 205
Frisco, Texas 75034
Fax: 972-712-3540
Tenant: Debra Pope
Networking University
312 North Powell Parkway
Anna, Texas 75409
(b) Entire Agreement. This Lease embodies the entire agreement and
understanding between the parties as to the lease of the Leased Space by Tenant
and supersedes all prior negotiations, agreements and understandings pertaining to
such lease. Any provision of this Lease may be modified, waived or discharged only
by an instrument in writing signed by the party against which enforcement of such
modification, waiver or discharge is sought. This Lease is not intended to be nor
shall it be construed as a service contract or contract for the sale of goods by
LEASE AGREEMENT PAGE 11 OF 15
Tenant to Landlord. Landlord does not by entering into this Lease waive any
immunities it may have under common law or statute.
(c) Commission. Tenant and Landlord hereby represent to each other that
neither has entered into any agreement or understanding that would give rise to a
real estate commission being owed in connection with this Lease, and each of
Landlord and Tenant shall indemnify and hold the other harmless against any
commission, payment, interest or participation claimed on account of this Lease
with any party under any alleged agreement or understanding entered into on that
party's behalf with the person or entity claiming the commission, payment, interest
or participation.
(d) Force Maieure. Each party shall be excused from performing an
obligation or undertaking provided for in this Lease for so long as such performance
is prevented, delayed, retarded or hindered by an Act of God, fire, earthquake,
flood, explosion, action of the elements, war, invasion, insurrection, riot, mob
violence, sabotage, strike, lockout, action of labor unions, requisitions, laws, or
orders of government or civil or military authorities.
(e) Surrender. Upon the expiration of the Term or earlier termination of
this Lease, Tenant shall surrender the Leased Space to Landlord. Tenant shall
remove all Personal Property, which are not fixtures (other than fixtures installed by
Tenant pursuant to Section 4(f) above, which Tenant may remove at Tenant's
expense), and shall return any area altered by Tenant for use into its previous
condition, subject to Landlord's election to allow any specific items to remain "as
is," which election Tenant may secure only in writing from Landlord. All other
installations or improvements, including all infrastructure, structures, buildings,
HVAC equipment, paneling, decorating, partitions, railings, mezzanine floors, and
galleries made by either party shall be and become upon installation, the property
of Landlord and shall be surrendered with the Leased Space at the expiration or
termination of this Lease unless Landlord notifies Tenant to the contrary in writing,
in which event Tenant may remove such property at its expense. Any property not
promptly removed by Tenant under the provisions of this subsection may, at
Landlord's option, be deemed to have been abandoned by Tenant and may be
retained by Landlord without any claim by Tenant. Tenant shall in any event repair
any damage to the Leased Space caused by Tenant's removal of any property.
(f) Applicable Law, Construction. The laws of the State of Texas shall
govern the validity, performance and enforcement of this Lease. The invalidity or
unenforceability of any provision of this Lease shall not affect or impair any other
provision. If any provision of this Lease is capable of two constructions, one of
which would render the provision invalid and the other of which would make the
provision valid, the provision shall have the meaning which renders it valid. The
submission of this document for examination does not constitute an offer to lease,
this document being effective only upon the conditions stated herein.
LEASE AGREEMENT PAGE 12 of 16
(g) Time of the Essence. Time is of the essence with respect to each
provision, term and covenant of this Lease.
(h) Capti_. ons. The captions are for convenience and do not limit or define
the provisions of this Lease.
(i) Gender, Number. Whenever the sense of this Lease requires it, the use
of (1) singular number shall be deemed to include the plural, (2) the masculine
gender shall be deemed to include the feminine or neuter gender, and (3) the
neuter gender shall be deemed to include the masculine and feminine gender.
(j) Counterparts. This Lease may be executed in multiple counterparts,
each of which shall be an original, but all of which shall constitute one instrument.
(k) Contract Interpretation. This Lease is the result of negotiation between
the parties, and shall, in the event of any dispute over the meaning or application
of any portion thereof, be interpreted fairly and reasonably, and not to be more
strictly construed against one party than another, regardless of which party
originally drafted the language in dispute.
(1) No Joint Venture. It is acknowledged and agreed by the parties that the
terms hereof are not intended to and shall not be deemed to create a partnership
or joint venture among the parties.
(m) Binding_ Effect. All provisions of this Lease shall be binding upon and
inure to the benefit of the parties and their respective successors and permitted
assigns.
LEASE AGREEMENT PAGE 13 OF 15
SIGNATURES:
LANDLORD:
ANNA ECONOMIC DEVELOPMENT CORPORATION
ff;
By:2!' r
Name: Constance Stump
Title: President
STATE OF TEXAS § =� Lauretta Kay 8lacketer
§ *! jj:� My Commission Expires
COUNTY OF COLLIN § `��rrofvvv oaiov2o»
This instrument was a knowledged before me on the 'oI4�day of
2016, by �',- �'��c� .5�, .,,, President of Anna Economic Development
Corporation, a Type A corporation created pursuant to the Texas Development
Corporation Act of 1979, as amended and codified, on behalf of said Type A
corporation.
4Notar�'
��C. �iCJ!•� Public/State of Texas
LEASE AGREEMENT PAGE 14 OF 15
Networking U, LLC, a Texas limited liability company
'
-�-66bra K. Pope, its President
By: STATE C)FTEXAS §
/2017
§ ED
C{)UNTYC)FCOLLIN 6 REmmission Expires
This nowledgedb8fnrerneonthe/»
�2day nf
2O1O,by .
4Noary Public/State df Tex�s
LEASE AGREEMENT PAGE150F15
EXHIBITS
Exhibit A
- Legal Description and Survey of Premises
Exhibit A -'I
- Building Floor Plan and Sketches
Exhibit A-2
- Building Floor Plan Showing Leased Space and Common Areas
Exhibit B
- Permitted Exceptions as shown in Title Policy
Exhibit C
- Tenant's As -Is Certificate and Agreement
EXHIBIT A
LEGAL DESCRIPTION AND SURVEY OF PREMISES
LEGAL DESCRIPTION
BEING a tract of land situated in the Henry Brantley Survey, Abstract No. 71, City
of Anna, Collin County, Texas, and being all of a 0.359 acre tract as conveyed to Russell
Lambert and wife Carolyn Lambert and recorded in Volume 4624, Page 1949, Deed Records of
Collin County, Texas and being more particularly described by metes and bounds as
follows:
BEGINNING at a capped 1/2" iron rod set for corner at the intersection of the east
Right Of Way line of Powell Parkway / State Highway No. 5 (80' ROW) and the South Right
Of Way line of 1st Street (80' ROW) ;
THENCE S 88010155" E following the south ROW line of 1st Street a distance of
125.04' to a capped 1/2" iron rod set for corner;
THENCE S 00025116" W a distance of 125.04' to a capped 1/2" iron rod set for corner;
THENCE N 88010155" W a distance of 125.04' to a capped 1/2" iron rod set for corner
in the east ROW line of Powell Parkway / S.H. No. 5;
THENCE N 00025116" E following the east ROW line of Powell Parkway / S.H. No. 5 a
distance of 125.04' to the POINT OF BEGINNING and containing 15,630 square feet or 0.359
acres of land.
SURVEY (see attached)
| | | |
L____l_____________l____�
01�
i
"V I ,
Exhibit A-2
| ----
| | i
-------------
EXHIBIT B
TITLE POLICY AND PERMITTED EXCEPTIC�Hs
Any and all easements and encumbrances of any kind recorded in the Collin
County, Texas land records pertaining to the Premises or granted or conveyed by
Landlord in accordance with applicable provisions of the Lease.
EXHIBIT C
TENANT'S CERTIFICATE AND AGREEMENT
THIS TENANT'S AS -IS CERTIFICATE AND AGREEMENT (this
"Agreement"), is made as the day of , 2016 by ANNA
ECONOMIC DEVELOPMENT CORPORATION, a Type A corporation created
pursuant to the Texas Development Corporation Act of 1979, as amended and
codified ("Landlord") and Networking Q. LLC (""Tenant"),
RECITALS
WHEREAS, pursuant to the terms of that certain Lease Agreement, effective as
the day of , 2016, by and between Landlord and Tenant (as
the same may have been amended or modified, the "Lease"), Landlord agreed to
lease to Tenant, inter alia, that certain Premises legally described on Exhibit A
attached thereto and incorporated herein by this reference, the improvements
located thereon and certain rights appurtenant thereto, all as more particularly
described in the Lease. Initially capitalized terms not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Lease; and
WHEREAS, the Lease requires, inter alia, that, as a condition precedent to
Landlord's obligations under the Lease, Tenant shall execute and deliver this
Agreement to Landlord at Closing.
NOW, THEREFORE, in consideration of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Tenant hereby certifies and agrees as follows:
1. For purposes of this Agreement, the following terms shall have the following
meanings:
"Assumed Liabilities" shall mean any and all Liabilities attributable to the
physical condition of the Leased Space, other than latent defects or conditions
unknown to Tenant at the Effective Date, or conditions giving rise to work or repairs
agreed to be done by Landlord, arising on or after the date hereof and attributable
to events or circumstances which may hereafter occur, including, without limitation,
(a) all Liabilities with respect to the condition of the Leased Space for which Tenant
is to be responsible for repairs or maintenance under this Lease; (b) all Liabilities
relating to the release of or the presence, discovery or removal of any Hazardous
Materials caused by Tenant in, at, about or under the Leased Space, or for,
connected with or arising out of any and all claims or causes of action based upon
CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, 42 U.S.C. §§9601 et seq., as amended by SARA (Superfund Amendment
and Reauthorization Act of 1986) and as may be further amended from time to
time), the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§6901 et
seq., or any related claims or causes of action or any other Federal, State or
municipal -based statutory or regulatory causes of action for environmental
contamination at, in, about or under the Leased Space to the extent that any of the
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 1 of 7
foregoing causes of actions or claims arise from or relate to any environmental
contamination or violation of Environmental Laws caused or committed by Tenant
during Tenant's occupancy of the Leased Space; and (c) any tort claims made or
brought with respect to the Leased Space arising out of the use or operation thereof
by Tenant or its invitees and not arising from Landlord's breach of its obligations
under this Lease or with respect to the Leased Space. Notwithstanding the
foregoing, however, "Assumed Liabilities" shall not include any Liabilities arising out
of or in connection with:
(1) any claims made or causes of action brought by any governmental authority
as a result of any violations of any applicable laws that were caused by
Landlord or by persons other than Tenant, or its invitees during the Lease
term, during the time that Landlord owned title to the Premises; and/or
(ii) any and all Liabilities relating to the release of or the presence, discovery or
removal of any Hazardous Materials introduced or installed by Landlord or by
persons other than Tenant, or its invitees during the Lease term, during or
prior to Landlord's period of ownership of the Premises to, in, at, about or
under the Leased Space, or for, connected with or arising out of any and all
claims or causes of action based upon CERCLA (Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.
§§9601 et seq., as amended by SARA (Superfund Amendment and
Reauthorization Act of 1986) and as may be further amended from time to
time), the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
§§6901 et seq., or any related claims or causes of action or any other
Federal, State or municipal -based statutory or regulatory causes of action for
environmental contamination (collectively "Environmental Laws") at, in,
about or under the Leased Space to the extent that any of the foregoing
causes of actions or claims arise from or relate to any environmental
contamination or violation of Environmental Laws caused by Landlord, or any
person other than Tenant or its invitees, during or prior to Landlord's period
of ownership of the Premises.
(iii)any and all Liabilities relating to, arising from or based upon latent defects,
or conditions giving rise to work required to be done by Landlord under the
Lease.
The items listed in clauses (i)-(iii) above are referred to collectively as the
"Excluded Liabilities".
"Tenant's Representatives" shall mean Tenant and any officers, directors and
senior employees of Tenant involved with the negotiation of the Lease.
"deemed to know" (or words of similar import) shall have the following
meaning:
(a)Tenant shall be "deemed to know" of the existence of a fact or circumstance
to the extent that:
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 2 OF 7
(i) any Tenant's Representative has actual knowledge of such fact or
circumstance, or
(H) such fact or circumstance is disclosed by the Lease, or any other
Document' delivered to any of Tenant's Representatives.
(b) Tenant shall be "deemed to know" that any of Landlord's warranties or
representations is untrue, inaccurate or incorrect to the extent that:
(i) any Tenant's Representative has actual knowledge of information which
is inconsistent with any of Landlord's Warranties, or
(ii) the Lease or any Document contains information, which is inconsistent
with any of Landlord's warranties or representations.
"Documents" shall mean the documents and instruments applicable to the
Leased Space or any portion thereof that any of the Landlord Parties deliver or
make available to any Tenant's Representative prior to the date hereof or which are
Otherwise obtained by any Tenant's Representative prior to the date hereof,
including, but not limited to, the Title Commitment, the Survey, the Title
Documents, and the Leased Space Documents.
"Due Diligence" shall mean examinations, inspections, investigations, tests,
studies, analyses, appraisals, evaluations and/or investigations with respect to the
Premises or Leased Space, the Documents, and other information and documents
regarding the Premises or Leased Space, including, without limitation the physical
condition of the Premises or Leased Space.
"Hazardous Materials" shall mean any substance, chemical, waste or material
that is or becomes regulated by any Federal, State or local governmental authority
because of its toxicity, infectiousness, radioactivity, explosiveness, ignitability,
corrosiveness or reactivity, including, without limitation, asbestos or any substance
containing more than 0.1 percent asbestos, the group of compounds known as
polychlorinated biphenyls, flammable explosives, oil, petroleum or any refined
petroleum product.
"Liabilities" shall mean, collectively, any and all losses, costs, damages, claims,
liabilities, expenses, demands or obligations of any kind or nature whatsoever.
"Leased Space Documents" shall mean, collectively, any documents or
instruments which constitute, evidence or create or relate to any portion of the
Leased Space.
I Tenant is deemed to have knowledge if any fact or circumstance is disclosed by any
Documents (a broadly defined term) delivered or made available to Tenant, whether or not
Tenant has actual conscious awareness of a particular fact.
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 3 OF 7
"Landlord Parties" shall mean and include, collectively, (a) Landlord; (b) its
legal counsel; and (c) any third -party consultants engaged by Landlord to evaluate
the feasibility of the Lease.
2. Tenant acknowledges and agrees that, prior to the date hereof: (a) Landlord
has made available to Tenant, or otherwise allowed Tenant access to, the Leased
Space; (b) Tenant has conducted (or has waived its right to conduct) all Due
Diligence as Tenant considered necessary or appropriate; (c) Tenant has reviewed,
examined, evaluated and verified the results of its Due Diligence to the extent it
deems necessary or appropriate with the assistance of such experts as Tenant
deemed appropriate; and (d) except for, and only to the extent of, Landlord's
warranties and representations contained in the Lease, is acquiring the Leased
Space based exclusively upon its own Due Diligence,
3. Tenant acknowledges and agrees that, except for, and only to the extent of,
Landlord's warranties and representations under the Lease:
(a) The Leased Space is being demised, and Tenant is accepting possession of
the Leased Space on the date hereof, "AS IS, WHERE IS, WITH ALL FAULTS",
with no right of setoff or reduction in any payment of Rent or Additional Rent
which may become due under the Lease, excepting any Excluded Liabilities,
latent defects, or work required to be done by Landlord under the Lease.
(b) Except as stated in this Lease, none of the Landlord Parties have or shall be
deemed to have made any verbal or written representations, warranties,
promises or guarantees (whether express, implied, statutory or otherwise) to
Tenant with respect to the physical condition of the Leased Space, any
matter set forth, contained or addressed in the Documents (including, but
not limited to, the accuracy and completeness thereof) or the results of
Tenant's Due Diligence.
(c) Tenant has confirmed independently all information that it considers material
to its acceptance of the Leased Space.
(d)Tenant is not relying on (and Landlord and each of the other Landlord Parties
does hereby disclaim and renounce) any representations or warranties of any
kind or nature whatsoever, whether oral or written, express, implied,
statutory or otherwise, from any of the Landlord Parties, as to:
(i) the operation or performance of the Leased Space, the income potential,
economic status, uses, or the merchantability, habitability or fitness of
any portion of the Leased Space for a particular purpose other than for
commercial office use;
(ii) the physical condition of the Leased Space or the condition or safety of
the Leased Space or any component thereof, including, but not limited
to, plumbing, sewer, heating, ventilating and electrical systems, roofing,
air conditioning, foundations, soils and geology, including Hazardous
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 4 OF 7
Materials, lot size, or suitability of the Leased Space or any component
thereof for a particular purpose other than for commercial office use;
(ill) the presence or absence, location or scope of any Hazardous Materials
in, at, about or under the Leased Space;
(v) whether the improvements are structurally sound, in good condition, or
in compliance with applicable Laws, other than that the Leased Space
have been delivered by the Landlord empty and broom clean, that the
HVAC system is in working order at the time of delivery, and that the
Leased Space are suitable for commercial office use;
(vi) the dimensions of the Leased Space or the accuracy of square footage,
sketches, or revenue or expense projections related to the Leased
Space;
(vii)the locale of the Leased Space, the leasing market for the Leased Space,
or the market assumptions Tenant utilized in its analysis of the Leased
Space and determination of the Rent amount; and
(viii)whether the Leased Space is or would likely constitute a target of
terrorist activity or other acts of war.
(e) Except as otherwise set forth in the Lease, Landlord is under no duty to
make any affirmative disclosures or inquiry regarding any matter, which may
or may not be known to any of Landlord Parties regarding the physical
condition of the Leased Space, and Tenant, for itself and for its successors
and assigns, hereby specifically waives and releases each of the Landlord
Parties from any such duty that otherwise might exist.
4. Except as may be provided in the Lease regarding any repairs agreed to be
done by Landlord, any repairs or work required by Tenant are the sole responsibility
of Tenant, and Tenant agrees that there is no other obligation on the part of
Landlord to make any changes, alterations or repairs to the Leased Space,
including, without limitation, to cure any violations of Law, comply with the
requirements of any insurer or otherwise. Except as may be provided in the Lease,
Landlord is solely responsible for obtaining any certificate of occupancy or any other
approval or permit necessary for the transfer or occupancy of the Leased Space;
provided further, Landlord is responsible for any repairs or alterations necessary to
obtain the same, at Landlord's sole cost and expense.
5. Tenant (i) having inspected the Leased Space as described above, (ii) having
conducted, reviewed, examined, evaluated and verified the results of all Due
Diligence to the extent Tenant deems appropriate as described above, (ill) having
notified Landlord of any changes, alterations or repairs required to be made to the
Leased Space that Tenant has discovered as a result of such Due Diligence at the
time of the signing of this Lease, and (iv) having determined that Tenant shall
accept the Leased Space based exclusively upon its own Due Diligence (except for,
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 6 OF 7
and only to the extent of, Landlord's warranties and representations under the
Lease), then, accordingly, Tenant agrees with Landlord that Tenant is in fact
accepting the Leased Space based exclusively upon its own Due Diligence, except
for, and only to the extent of, Landlord's warranties and representations under the
Lease, and to evidence the foregoing, Tenant agrees to release Landlord as set
forth below. Accordingly, except as expressly provided hereinbelow in this
Section 5, Tenant, for Tenant and Tenant's successors and assigns, hereby releases
each of the Landlord Parties from, and waives any and all Assumed Liabilities
against each of the Landlord Parties for or attributable to or in connection with the
Leased Space, whether arising or accruing before, on or after the date hereof and
whether attributable to events or circumstances, which have heretofore or may
hereafter occur.
Notwithstanding the foregoing, the release and waiver set forth in this Section 5 is
not intended and shall not be construed as (I) affecting or impairing any rights or
remedies that Tenant may have against Landlord as a result of a breach of any of
Landlord's warranties and representations under the Lease, or (ii) shifting to Tenant
any obligation, responsibility or liability for any Liability that does not constitute an
Assumed Liability. Landlord hereby confirms it takes responsibility and liability for
the Excluded Liabilities.
6. Tenant hereby assumes and takes responsibility and liability for all Assumed
Liabilities. Notwithstanding the foregoing, nothing in this Section 6 shall be
construed to affect or limit Tenant's rights or remedies against Landlord as a result
of Landlord's breach of Landlord's warranties and representations under the Lease.
7. Tenant expressly understands and acknowledges that it is possible that
unknown Assumed Liabilities may exist with respect to the Leased Space and that
Tenant explicitly took that possibility into account in determining and agreeing to
accept the Leased Space, and that a portion of such consideration, having been
bargained for between parties with the knowledge of the possibility of such
unknown Assumed Liabilities has been given in exchange for a full accord and
satisfaction and discharge of all such Assumed Liabilities, except for Assumed
Liabilities arising as a result of Landlord's breach of Landlord's warranties and
representations under the Lease.
8. Tenant acknowledges and agrees that the provisions of this Agreement were
a material factor in Landlord's agreement to lease the Leased Space to Tenant and,
while Landlord has provided the Documents and cooperated with Tenant, Landlord
is unwilling to lease the Leased Space unless the Landlord Parties are expressly
released as set forth in Section 5 and Tenant assumes the obligations specified in
Section 6.
9. This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
10. If any term or provision of this Agreement or the application thereof to any
persons or circumstances shall, to any extent, be invalid or unenforceable, the
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 6 OF 7
remainder of this Agreement or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby, and each term and provision of this Agreement shall
be valid and enforced to the fullest extent permitted by law.
IN WITNESS WHEREOF, Tenant has executed this Agreement as of the date
first set forth hereinabove.
By:
Name:
Title:
STATE OF TEXAS §
COUNTY OF COLLIN §
This instrument was acknowledged before me on the day of ,
2016, by .
Notary Public/State of Texas
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 7 of 7