Exhibit 10.25
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Northcreek Place II
00000 X. Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
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OFFICE LEASE
Between
DALLAS OFFICE PORTFOLIO, L.P.
as Landlord
and
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
as Tenant
TABLE OF CONTENTS
Page
Paragraph 1. DEFINITIONS AND BASIC PROVISIONS................................1
Paragraph 2. GRANTING CLAUSE.................................................2
Paragraph 3. EARLY OCCUPANCY.................................................2
Paragraph 4. RENTAL..........................................................2
Paragraph 5. USE.............................................................2
Paragraph 6. SERVICES TO BE PROVIDED BY LANDLORD.............................2
Paragraph 7. REPAIR AND MAINTENANCE..........................................3
Paragraph 8. FIRE OR OTHER CASUALTY..........................................3
Paragraph 9. COMPLIANCE WITH LAWS AND USAGE..................................3
Paragraph 10. LIABILITY AND INDEMNITY.........................................4
Paragraph 11. ADDITIONS AND FIXTURES..........................................4
Paragraph 12. ASSIGNMENT AND SUBLETTING.......................................4
Paragraph 13. SUBORDINATION...................................................5
Paragraph 14. OPERATING EXPENSES..............................................5
Paragraph 15. EMINENT DOMAIN..................................................7
Paragraph 16. ACCESS BY LANDLORD..............................................7
Paragraph 17. LANDLORD'S LIEN.................................................8
Paragraph 18. DEFAULTS........................................................8
Paragraph 19. NONWAIVER......................................................10
Paragraph 20. HOLDING OVER...................................................10
Paragraph 21. COMMON AREA....................................................10
Paragraph 22. RULES AND REGULATIONS..........................................10
Paragraph 23. TAXES..........................................................10
Paragraph 24. INSURANCE......................................................10
Paragraph 25. PERSONAL LIABILITY.............................................10
Paragraph 26. NOTICE.........................................................10
Paragraph 27. LANDLORD'S MORTGAGE............................................11
Paragraph 28. BROKERAGE......................................................11
Paragraph 29. PREPAID RENTAL AND SECURITY DEPOSIT............................11
Paragraph 30. MISCELLANEOUS..................................................11
Paragraph 31. ENTIRE AGREEMENT AND BINDING EFFECT............................13
EXHIBIT A LEASED PREMISES
EXHIBIT B LAND
EXHIBIT C RULES AND REGULATIONS
EXHIBIT D PARKING
EXHIBIT E WORK LETTER
OFFICE LEASE AGREEMENT
1. DEFINITIONS AND BASIC PROVISIONS.
--------------------------------
A. "Landlord": Dallas Office Portfolio, L.P.,
a Delaware limited partnership
B. Address of Landlord:
c/o Transwestern Property Company
00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
With a copy to: Beacon Capital Partners, Inc.
Xxx Xxxxxxx Xxxxxx
00xx xxxxx
Xxxxxx, XX 00000
C. "Tenant": Windsor Woodmont Black Hawk Resort Corp.
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D. Address of Tenant:
00000 X. Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
E. "Building": The structure commonly known as Northcreek Place II
and which is located at 00000 X. Xxxxxx Xxxx in the City of Dallas, Dallas
County, Texas, on the tract of land (the "Land") described by metes and bounds
on Exhibit B attached hereto and made a part hereof for all purposes.
F. "Leased Premises": Approximately 838 square feet of rentable area
on the fifth (5th) floor of the Building, as outlined and hatched on the floor
plan attached hereto as Exhibit A and made a part hereof for all purposes.
Landlord and Tenant hereby stipulate that notwithstanding anything herein to the
contrary, the Leased Premises shall be deemed to consist of 838 rentable square
feet, and that no shortage or overage in the rentable square feet of the Leased
Premises purported by either party shall be the basis for changing the number of
rentable square feet herein stipulated.
G. "Rentable area in the Project" shall be 166,508 square feet of
rentable area, unless modified as provided herein.
H. "Commencement Date": May 15, 2000, or the date upon which Tenant
occupies the Leased Premises with the prior written consent of Landlord,
whichever shall first occur. Upon request of either party hereto, Landlord and
Tenant agree to execute and deliver a written declaration in recordable form
expressing the Commencement Date hereof.
I. "Term": Commencing on the Commencement Date and ending two (2)
years and zero (-0-) months after the Commencement Date, plus any partial
calendar month following the Commencement Date, unless sooner terminated as
provided herein.
J. "Base Rental" $15,921.96 per year for the first two (2) years of
the Term of this Lease, payable in equal monthly installments of $1,326.83 each;
each such monthly installment shall be due and payable on the first day of each
calendar month, monthly in advance without demand and without setoff or
deduction whatsoever.
K. "Prepaid Rental": $1,326.83, to be applied to the first accruing
monthly installments of rental.
L. "Security Deposit": $1,326.83.
M. "Permitted Use": The Leased Premises shall be used only for office
purposes.
N. "Common Area": That part of the Building and other improvements
now or hereafter placed, constructed or erected on the land on which the
Building is located (the "Land") designated by Landlord from time to time for
the common use of all tenants, including among other facilities, sidewalks,
service corridors, curbs, truckways, loading areas, private streets and alleys,
lighting facilities, mechanical and electrical rooms, janitors' closets, halls,
lobbies, delivery passages, elevators, drinking fountains, meeting rooms, public
toilets, parking areas and garages, decks and other parking facilities,
landscaping and other common rooms and common facilities.
O. "Prime Rate": "Prime Rate": The rate published as such by The Wall
Street Journal, Southwest Edition, (or its successor or assign) in its listing
of "Money Rates".
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P. "Broker": Xxxxxx Xxxxxx - Transwestern Commercial Services,
Landlord's Agent.
Q. "Base Operating Expenses Rate": The Actual Operating Expenses Rate
for the 2000 calendar year.
Each of the foregoing definitions and basic provisions shall be
construed in conjunction with the references thereto contained in the other
provisions of this Lease and shall be limited by such other provisions. Each
reference in this Lease to any of the foregoing definitions and basic provisions
shall be construed to incorporate each term set forth above under such
definition or provision.
2. GRANTING CLAUSE. Landlord, in consideration of the covenants and
agreements to be performed by Tenant and upon the terms and conditions
hereinafter stated, does hereby lease, demise and let unto Tenant, and Tenant
does hereby lease from Landlord, the Leased Premises specified in Paragraph 1.F.
hereof to have and to hold for the Term of this Lease, as specified in Paragraph
1.I. hereof.
3. EARLY OCCUPANCY. Any occupancy of the Leased Premises by Tenant
prior to the Commencement Date shall be subject to all of the terms and
provisions of this Lease excepting only those requiring the payment of rental
and other charges.
If this Lease is executed before the Leased Premises becomes vacant,
or if any present tenant or occupant of the Leased Premises holds over and
Landlord cannot acquire possession thereof prior to the Commencement Date, then
Landlord shall not be deemed in default hereunder, and Tenant agrees to accept
possession of the Leased Premises at such time as Landlord is able to tender the
same and, in such event, the date of such tender by Landlord shall be deemed to
be the Commencement Date, and Landlord hereby waives the payment of rental and
other charges covering any period prior to the date of such tender.
4. RENTAL. As rental for the lease and use of the Leased Premises,
Tenant will pay Landlord or Landlord's assigns, at the address of Landlord
specified in Paragraph 1.B. hereof, without demand and without deduction,
abatement or setoff (except as otherwise expressly provided for herein in
Paragraph 8 hereof and Paragraph 15 hereof), the Base Rental in the manner
specified in Paragraph 1.J. hereof, in lawful money of the United States. If the
Term of this Lease does not commence on the first day of a calendar month,
Tenant shall pay to Landlord in advance a pro rata part of such sum as rental
for such first partial month. Tenant shall not pay any installment of rental
more than one (1) month in advance. All past due installments of rental or other
payment specified herein shall bear interest at the highest lawful rate per
annum from the date due until paid.
If Tenant fails to timely pay two (2) consecutive installments of
Base Rental, or other payment specified herein, or any combination thereof,
Landlord may require Tenant to pay (in addition to any interest) Base Rental and
other payments specified herein (as estimated by Landlord, if necessary)
quarterly in advance, and, in such event, all future payments shall be made on
or before the due date in cash or by cashier's check or money order, and the
delivery of Tenant's personal or corporate check shall no longer constitute
payment thereof. Any acceptance of Tenant's personal or corporate check
thereafter by Landlord shall not be construed as a waiver of the requirement
that such payments be made in cash or by cashier's check or money order. Any
amount so estimated by Landlord and paid by Tenant shall be adjusted promptly
after actual figures become available and paid or credited to Landlord or
Tenant, as the case may be.
5. USE. Tenant shall use the Leased Premises solely for the Permitted
Use specified in Paragraph 1.M. hereof and for no other business or purpose
without the prior written consent of Landlord. Tenant shall maintain throughout
the Term an occupancy ratio within the Leased Premises of no greater than one
person for every 279 rentable square feet leased ("Density Ratio") or _three
people in the Leased Premises at any given point in time. However, Tenant
acknowledges that Tenant's maintenance of a density ratio greater than one
person per 333 rentable square feet in the Leased Premises may result in
Landlord's inability to provide the Building standard temperature range in the
Leased Premises and Landlord shall no liability for such inability. If Tenant
intends to maintain a density ratio greater than the Density Ratio set forth
above, then Tenant must obtain Landlord's prior written approval.
6. SERVICES TO BE PROVIDED BY LANDLORD.
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A. Subject to the rules and regulations hereinafter referred to,
Landlord shall furnish Tenant, at Landlord's expense, while Tenant is occupying
the Leased Premises and is not in default hereunder, the following services
during the Term of this Lease:
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(1) Air conditioning and heating in season, at such times as
Landlord normally furnishes such services to other tenants in the Building, and
at such temperatures and in such amounts as are considered by Landlord to be
standard, but such service on Saturday afternoons, Sundays and holidays to be
furnished only upon the request of Tenant, who shall bear the cost thereof.
Tenant acknowledges that such service and temperature may be subject to change
by local, county, state or federal regulation. Whenever machines or equipment
that generate abnormal heat are used in the Leased Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord shall
have the right to install supplemental air conditioning in the Leased Premises,
and the cost thereof, including the cost of installation, operation, use and
maintenance, shall be paid by Tenant to Landlord as additional rental upon
demand.
(2) Water at those points of supply provided for general use.
(3) Janitor service in and about the Building, and the Leased
Premises, as may in the judgment of Landlord be reasonably required; however,
Tenant shall pay the additional costs attributable to the cleaning of
improvements within the Leased Premises other than building standard
improvements.
(4) Elevators for ingress to and egress from the Building as may
in the judgment of Landlord be reasonably required. Landlord may reasonably
limit the number of elevators in operation after usual and customary business
hours and on Saturday afternoons, Sundays and legal holidays.
(5) Proper facilities to furnish sufficient electrical power for
building standard lighting, personal computers and other machines of similar low
electrical consumption, but not including electricity required for electronic
data processing equipment, special lighting in excess of building standard, or
any other item of electrical equipment which singly consumes more than 0.25
kilowatts per hour at rated capacity or requires a voltage other than 120 volts
single phase. Tenant shall pay to Landlord, monthly as billed, such charges as
may be separately metered or as Landlord's engineer may compute for any
above-Building standard electrical service to the Leased Premises. Landlord
shall have the right at any time and from time to time during the Term of this
Lease to install equipment within the Leased Premises for the purpose of
measuring or estimating Tenant's electrical usage therein.
(6) At Tenant's expense and upon Tenant's request, purchase and
install replacement lamps of types generally commercially available (including,
but not limited to, incandescent and fluorescent) used in the Leased Premises.
B. No interruption or malfunction of any of such services shall
constitute an eviction or disturbance of Tenant's use and possession of the
Leased Premises or the Building or a breach by Landlord of any of Landlord's
obligations hereunder or render Landlord liable for damages or entitle Tenant to
be relieved from any of Tenant's obligations hereunder (including the obligation
to pay rental) or grant Tenant any right of setoff or recoupment. In the event
of any such interruption, however, Landlord shall use reasonable diligence
during normal business hours to restore such service or cause same to be
restored in any circumstances in which such restoration is within the reasonable
control of Landlord and the interruption was not caused in whole or in part by
Tenant's fault.
7. REPAIR AND MAINTENANCE.
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A. Landlord shall, at Landlord's own cost and expense, except as
may be provided elsewhere herein, make necessary repairs of damage to the
Building corridors, lobby, structural members of the Building and equipment used
to provide the services referred to in Paragraph 6 hereof, unless any such
damage is caused in whole or in part by acts or omission of Tenant, or Tenant's
agents, employees or invitees, in which event Tenant shall bear the cost of such
repairs. Tenant shall promptly give Landlord notice of any damage in the Leased
Premises requiring repair by Landlord, as aforesaid.
B. Tenant shall not in any manner deface or injure the Leased
Premises or the Building but shall maintain the Leased Premises, including,
without limitation, all fixtures installed by Tenant and all plate glass, walls,
carpeting and other floor covering placed or found therein, in a clean,
attractive, first-class condition and in good repair, except as to damage
required to be repaired by Landlord, as provided in Paragraph 7.A. hereof. Upon
the expiration of the Term of this Lease, Tenant shall surrender and deliver up
the Leased Premises with all improvements located thereon (except as provided in
Paragraph 11.B. hereof) to Landlord broom-clean and in the same condition in
which they existed at the commencement of the Lease, excepting only ordinary
wear and tear and damage arising from any cause not required to be repaired by
Tenant, failing which Landlord may restore the Leased Premises to such
condition, and Tenant shall pay the cost thereof.
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C. This Paragraph 7 shall not apply in the case of damage or
destruction by fire or other casualty which is covered by insurance maintained
by Landlord on the Building (as to which Paragraph 8 hereof shall apply), or
damage resulting from an eminent domain taking (as to which Paragraph 15 hereof
shall apply).
8. FIRE AND OTHER CASUALTY.
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A. If at any time during the Term of this Lease, the Leased
Premises or any portion of the Building shall be damaged or destroyed by fire or
other casualty, then Landlord shall have the election to terminate this Lease or
to repair and reconstruct the Leased Premises and the Building to substantially
the same condition in which they existed immediately prior to such damage or
destruction, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures and other improvements which may
have been installed by Tenant or other tenants within the Building.
B. In any of the aforesaid circumstances, rental shall xxxxx
proportionately during the period and to the extent that the Leased Premises are
unfit for use by Tenant in the ordinary conduct of Tenant's business. If
Landlord has elected to repair and restore the Leased Premises, this Lease shall
continue in full force and effect and such repairs shall be made within a
reasonable time thereafter, subject to delays arising from shortages of labor or
material, acts of God, war or other conditions beyond Landlord's reasonable
control. In the event that this Lease is terminated as herein permitted,
Landlord shall refund to Tenant the prepaid rental (unaccrued as of the date of
damage or destruction) less any sum then owing Landlord by Tenant. If Landlord
has elected to repair and reconstruct the Leased Premises, then the Term of this
Lease shall be extended by a period of time equal to the period of such repair
and reconstruction. Any insurance which may be carried by Landlord or Tenant
against loss or damage to the Building or to the Leased Premises shall be for
the sole benefit of the party carrying such insurance under its control, and it
is understood that Landlord shall in no event be obligated to carry insurance on
Tenant's contents.
9. COMPLIANCE WITH LAWS AND USAGE. Tenant, at Tenant's own expense,
(a) shall comply with all federal, state, municipal, fire underwriting and other
laws, ordinances, orders, rules and regulations applicable to the Leased
Premises and the business conducted therein by Tenant, (b) shall not engage in
any activity which would cause Landlord's fire and extended coverage insurance
to be cancelled or the rate therefor to be increased (or, at Landlord's option,
Tenant shall pay any such increase to Landlord immediately upon demand as
additional rental in the event of such rate increase by reason of such
activity), (c) shall not commit, and shall cause Tenant's agents, employees and
invitees not to commit, any act which is a nuisance or annoyance to Landlord or
to other tenants, or which might, in the exclusive judgment of Landlord, damage
Landlord's goodwill or reputation, or tend to injure or depreciate the Building,
(d) shall not commit or permit waste in the Leased Premises or the Building, (e)
shall comply with rules and regulations from time to time promulgated by
Landlord applicable to the Leased Premises and/or the Building, (f) shall not
paint, erect or display any sign, advertisement, placard or lettering which is
visible in the corridors or lobby of the Building or from the exterior of the
Building without Landlord's prior written approval, and (g) shall not occupy or
use, or permit any portion of the Leased Premises to be occupied or used, for
any business or purpose other than the Permitted Use specified in Paragraph 1.M.
hereof. If a controversy arises concerning Tenant's compliance with any federal,
state, municipal or other laws, ordinances, orders, rules or regulations
applicable to the Leased Premises and the business conducted therein by Tenant,
Landlord may retain consultants of recognized standing to investigate Tenant's
compliance. If it is determined that Tenant has not complied as required, Tenant
shall reimburse Landlord on demand for all consulting and other costs incurred
by Landlord in such investigation. Landlord and Tenant acknowledge that, in
accordance with the provisions of the Americans with Disabilities Act of 1990
and the Texas Elimination of Architectural Barriers Act, each as amended from
time to time, and all regulations and guidelines issued by authorized agencies
with respect thereto (collectively, the "ADA" and the "EAB", respectively),
responsibility for compliance with the terms and conditions of Title III of the
ADA and the EAB may be allocated as between Landlord and Tenant. Notwithstanding
anything to the contrary contained in the Lease, Landlord and Tenant agree that
the responsibility for compliance with the ADA and the EAB shall be allocated as
follows: (i) Tenant shall be responsible for compliance with the provisions of
Title III of the ADA and with the provisions of the EAB with respect to the
Leased Premises, including restrooms within the Leased Premises, and (ii)
Landlord shall be responsible for compliance with the provisions of Title III of
the ADA and with the provisions of the EAB with respect to the exterior of the
Building, parking areas, sidewalks and walkways, and any and all areas
appurtenant thereto, together with all common areas of the Building not included
within the Leased Premises. The allocation of responsibility for ADA and EAB
compliance between Landlord and Tenant, and the obligations of Landlord and
Tenant established by such allocations, shall supersede any other provisions of
the Lease that may contradict or otherwise differ from the requirements of this
paragraph.
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10. LIABILITY AND INDEMNITY.
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A. Tenant agrees to indemnify and save Landlord harmless from all
claims (including costs and expenses of defending against such claims) arising
or alleged to arise from any act or omission of Tenant or Tenant's agents,
employees, invitees or contractors, or arising from any injury to any person or
damage to the property of any person occurring during the Term of this Lease in
or about the Leased Premises. Tenant agrees to use and occupy the Leased
Premises and other facilities of the Building at Tenant's own risk and hereby
releases Landlord, Landlord's agents or employees, from all claims for any
damage or injury to the full extent permitted by law, regardless of cause or
origin, including negligence of Landlord, its agents, officers, or employees,
but not including Landlord's gross negligence or wilfull misconduct.
B. Tenant waives any and all rights of recovery, claim, action,
or cause of action, against Landlord, its agents, officers, or employees, for
any loss or damage that may occur to the Leased Premises, or any improvements
thereto, or the Project, or any improvements thereto, or any personal property
of such party therein, by reason of fire, the elements, or any other cause which
could be insured against under the terms of standard fire and extended coverage
insurance policies, regardless of cause or origin, including negligence of
Landlord, its agents, officers, or employees, but not including Landlord's gross
negligence or wilful misconduct, and Tenant covenants that no insurer shall hold
any right of subrogation against Landlord and all such insurance policies shall
be amended or endorsed to reflect such waiver of subrogation.
C. Tenant, to the extent permitted by law, waives all claims
Tenant may have against Landlord, and against Landlord's agents and employees
for injury to person or damage to or loss of property sustained by Tenant or by
any occupant of the Leased Premises, or by any other person, resulting from any
part of the Building or any equipment or appurtenances becoming out of repair,
or resulting from any accident in or about the Building or resulting directly or
indirectly from any act or neglect of any tenant or occupant of any part of the
Building or of any other person, regardless of cause or origin, including
negligence of Landlord, its agents, officers, or employees, unless such damage
is a result of the gross negligence or wilful misconduct of Landlord, or
Landlord's agents or employees. If any damage results from any act or neglect of
Tenant and (except in the case where Landlord determines the repair of such
damage to be an emergency, in which case Landlord may repair immediately) Tenant
fails to repair such damage within ten (10) days following such damage, then
Landlord may, at Landlord's option, repair such damage, and Tenant shall
thereupon pay to Landlord the total cost of such repair. All personal property
belonging to Tenant or any occupant of the Leased Premises that is in or on any
part of the Building shall be there at the risk of Tenant or of such other
person only, and Landlord, Landlord's agents and employees shall not be liable
for any damage thereto or for the theft or misappropriation thereof, regardless
of cause or origin, including negligence of Landlord, its agents, officers, or
employees, but not including Landlord's gross negligence or wilful misconduct,
unless such damage, theft or misappropriation is a result of the gross
negligence of Landlord or Landlord's agents or employees. Tenant agrees to
indemnify and hold Landlord harmless from and against any and all loss, cost,
claim and liability (including reasonable attorneys' fees) for injuries to all
persons and for damage to or loss of property occurring in or about the
Building, due to any act or negligence or default under this Lease by Tenant,
Tenant's contractors, agents or employees.
.
11. ADDITIONS AND FIXTURES.
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A. Tenant will make no alteration, change, improvement, repair,
replacement or physical addition in or to the Leased Premises without the prior
written consent of Landlord. If such prior written consent of Landlord is
granted, the work in such connection shall be at Tenant's expense but by workmen
of Landlord or by workmen and contractors approved in advance in writing by
Landlord and in a manner and upon terms and conditions and at times satisfactory
to and approved in advance in writing by Landlord. In any instance where
Landlord grants such consent, Landlord may grant such consent contingent and
conditioned upon Tenant's contractors, laborers, materialmen and others
furnishing labor or materials for Tenant's job working in harmony and not
interfering with any labor utilized by Landlord, Landlord's contractors or
mechanics or by any other tenant or such other tenant's contractors or
mechanics; and if at any time such entry by one (1) or more persons furnishing
labor or materials for Tenant's work shall cause disharmony or interference for
any reason whatsoever without regard to fault, the consent granted by Landlord
to Tenant may be withdrawn at any time upon written notice to Tenant.
-5-
B. Tenant, if Tenant so elects, may remove Tenant's trade
fixtures, office supplies and movable office furniture and equipment not
attached to the Building provided (i) such removal is made prior to the
expiration of the Term of this Lease, (ii) Tenant is not in default of any
obligation or covenant under this Lease at the time of such removal, and (iii)
Tenant promptly repairs all damage caused by such removal. All other property at
the Leased Premises and any alteration or addition to the Leased Premises
(including wall-to-wall carpeting, paneling or other wall covering) and any
other article attached or affixed to the floor, wall or ceiling of the Leased
Premises shall become the property of Landlord shall be in good condition,
normal wear and tear excepted, and shall remain upon and be surrendered with the
Leased Premises as part thereof at the expiration of the Term of this Lease,
Tenant hereby waiving all rights to any payment or compensation therefor. If,
however, Landlord so requests in writing, Tenant will, prior to the termination
of this Lease, remove in a good and workmanlike manner any and all alterations,
additions, fixtures, equipment and property placed or installed by Tenant in the
Leased Premises and will repair any damage occasioned by such removal.
12. ASSIGNMENT AND SUBLETTING.
-------------------------
A. Neither Tenant nor Tenant's legal representatives or
successors in interest by operation of law or otherwise shall assign this Lease
or sublease the Leased Premises or any part thereof or mortgage, pledge or
hypothecate its leasehold interest or grant any concession or license within the
Leased Premises without the prior express written permission of Landlord, and
any attempt to do any of the foregoing without the prior express written
permission of Landlord shall be void and of no effect. In the event Tenant
requests Landlord's prior express permission as to any such assignment, sublease
or other transaction, Landlord shall have the right and option, as of the
requested effective date of such assignment, sublease or other transaction (but
no obligation), to cancel and terminate this Lease as to the portion of the
Leased Premises with respect to which Landlord has been requested to permit such
assignment, sublease or other transaction, and if Landlord elects to cancel and
terminate this Lease as to the aforesaid portion of the Leased Premises, then
the rental and other charges payable hereunder shall thereafter be
proportionately reduced. In the event of any such attempted assignment or
attempted sublease, or should Tenant, in any other nature of transaction, permit
or attempt to permit anyone to occupy the Leased Premises (or any portion
thereof) without the prior express written permission of Landlord, Landlord
shall thereupon have the right and option to cancel and terminate this Lease
effective upon ten (10) days' notice to Tenant given by Landlord at any time
thereafter either as to the entire Leased Premises or as to only the portion
thereof which Tenant shall have attempted to assign or sublease or otherwise
permitted some other party's occupancy without Landlord's prior express written
permission, and if Landlord elects to cancel and terminate this Lease as to the
aforesaid portion of the Leased Premises, then the rental and other charges
payable hereunder shall thereafter be proportionately reduced. This prohibition
against assignment or subletting shall be construed to include a prohibition
against any assignment or subletting by operation of law.
B. Notwithstanding that the prior express written permission of
Landlord to any of the aforesaid transactions may have been obtained, the
following shall apply:
(1) In the event of an assignment, contemporaneously with the
granting of Landlord's aforesaid consent, Tenant shall cause the
assignee to expressly assume in writing and agree to perform all of
the covenants, duties and obligations of Tenant hereunder, and such
assignee shall be jointly and severally liable therefor along with
Tenant; Tenant shall further cause such assignee to grant Landlord an
express first and prior contract lien and security interest in the
manner hereinafter stated as applicable to Tenant;
(2) In any case where Landlord consents to an assignment,
sublease, grant of a concession or license or mortgage, pledge or
hypothecation of the leasehold, the undersigned Tenant will
nevertheless remain directly and primarily liable for the performance
of all of the covenants, duties and obligations of Tenant hereunder
(including, without limitation, the obligation to pay all rental and
other sums herein provided to be paid), and Landlord shall be
permitted to enforce the provisions of this Lease against the
undersigned Tenant and/or any assignee, sublessee, concessionaire,
licensee or other transferee without demand upon or proceeding in any
way against any other person; and
(3) If the rental due and payable by a sublessee under any such
permitted sublease (or a combination of the rental payable under such
sublease plus any bonus or other consideration therefor or incident
thereto) exceeds the hereinabove provided rental payable under this
Lease, or if with respect to a permitted assignment, permitted license
or other transfer by Tenant permitted by Landlord, the consideration
payable to Tenant by the assignee, licensee or other transferee
exceeds the rental payable under this Lease, then Tenant shall be
bound and obligated to pay Landlord all such excess rental and other
excess consideration within ten (10) days following receipt thereof by
Tenant from such sublessee, assignee, licensee or other transferee, as
the case might be.
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C. Consent by Landlord to a particular assignment or sublease or
other transaction shall not be deemed a consent to any other or subsequent
transaction. If this Lease is assigned, or if the Leased Premises are subleased
(whether in whole or in part), or in the event of the mortgage, pledge or
hypothecation of the leasehold interest or grant of any concession or license
within the Leased Premises without the prior express written permission of
Landlord, or if the Leased Premises are occupied in whole or in part by anyone
other than Tenant without the prior express written permission of Landlord, then
Landlord may nevertheless collect rental and other charges from the assignee,
sublessee, mortgagee, pledgee, party to whom the leasehold interest was
hypothecated, concessionaire or licensee or other occupant and apply the net
amount collected to the rental and other charges payable hereunder, but no such
transaction or collection of rental and other charges or application thereof by
Landlord shall be deemed a waiver of these provisions or a release of Tenant
from the further performance by Tenant of Tenant's covenants, duties and
obligations hereunder.
13. SUBORDINATION. Tenant accepts this Lease subject and subordinate
to any ground lease, mortgage, deed of trust or other lien presently existing or
hereafter placed upon the Leased Premises or upon the Building or any part
thereof, and to any renewals, modifications, extensions and refinancings
thereof, which might now or hereafter constitute a lien upon the Building or any
part thereof, and to zoning ordinances and other building and fire ordinances
and governmental regulations relating to the use of the Leased Premises, but
Tenant agrees that any such ground lessor, mortgagee and/or beneficiary of any
deed of trust or other lien ("Landlord's Mortgagee") and/or Landlord shall have
the right at any time to subordinate such ground lease, mortgage, deed of trust
or other lien to this Lease on such terms and subject to such conditions as such
Landlord's Mortgagee may deem appropriate in its discretion. Upon demand Tenant
agrees to execute such further instruments subordinating this Lease, as Landlord
may request, and such nondisturbance and attornment agreements, as any such
Landlord's Mortgagee shall request, in form satisfactory to Landlord's
Mortgagee. In the event that Tenant shall fail to execute any such instrument
within ten (10) days after requested, Tenant hereby irrevocably constitutes
Landlord as Tenant's attorney-in-fact to execute such instrument in Tenant's
name, place and stead, it being stipulated by Landlord and Tenant that such
agency is coupled with an interest in Landlord and is, accordingly, irrevocable.
Upon foreclosure of the Building or upon acceptance of a deed in lieu of such
foreclosure, Tenant hereby agrees to attorn to the new owner of such property
after such foreclosure or acceptance of a deed in lieu of foreclosure, if so
requested by such new owner of the Building.
14. OPERATING EXPENSES.
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A.For purposes of this Paragraph 14, the following definitions
and calculations shall apply:
(1)The term "Project" shall mean the Building, the parking
facilities, parking garage and other structures, improvements, landscaping,
fixtures, appurtenances and other common areas now and hereafter placed,
constructed or erected on the tract of land which is described on Exhibit B.
(2)The term "Operating Expenses" shall mean all expenses, costs
and disbursements of every kind and nature which Landlord shall pay or become
obligated to pay because of or in connection with the ownership, operation,
maintenance, repair, replacement, protection and security of the Project,
determined on an accrual basis in accordance with generally accepted accounting
principles, including, without limitation, the following:
(i) Salaries and wages of all employees engaged in the
operation, maintenance and security of the Project, including
taxes, insurance and benefits (including pension, retirement and
fringe benefits) relating thereto;
(ii) Cost of all supplies and materials used in the
operation, maintenance and security of the Project;
(iii) Cost of all water, power and sewage service supplied
to, and all heating, lighting, air conditioning and ventilating
of, the Project, with the sole exception of electrical energy
supplied to tenants of the Building at their respective premises
and paid for by such tenants;
(iv) Cost of all maintenance and service agreements for the
Project and the equipment therein, including, without limitation,
alarm service, parking facilities, security (both on-site and
off-site), janitorial service, landscaping, fire protection,
sprinklers, window cleaning and elevator maintenance;
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(v) Cost of all insurance relating to the Project, including
the cost of casualty, rental and liability insurance applicable
to the Project and Landlord's personal property used in
connection therewith;
(vi) All taxes, assessments and governmental charges
(foreseen or unforeseen, general or special, ordinary or
extraordinary) whether federal, state, county or municipal and
whether levied by taxing districts or authorities presently
taxing the Project or by others subsequently created or
otherwise, and any other taxes and assessments attributable to
the Project or its operation, and all taxes of whatsoever nature
that are imposed in substitution for or in lieu of any of the
taxes, assessments or other charges herein defined; provided,
however, Operating Expenses shall not include taxes paid by
tenants of the Project as a separate charge on the value of their
leasehold improvements, death taxes, excess profits taxes,
franchise taxes and state and federal income taxes;
(vii) Cost of repairs and general maintenance, including,
without limitation, reasonable depreciation charges applicable to
all equipment used in repairing and maintaining the Project, but
specifically excluding repairs and general maintenance paid by
proceeds of insurance or by Tenant or by other third parties;
(viii) Cost of capital improvement items, including
installation thereof, which are acquired primarily for the
purpose of reducing Operating Expenses; and
(ix) Reasonable management fees paid by Landlord to third
parties or management companies owned by, or management divisions
of, Landlord, not to exceed the then prevailing market rate for
the management of high quality class A office buildings
comparable to the Project.
To the extent that any Operating Expenses are attributable to the
Project and other projects of Landlord, a fair and reasonable allocation of such
Operating Expenses shall be made between the Project and such other projects.
(3) The term "Base Operating Expenses Rate" is stipulated to be
the rate specified in Paragraph 1.Q. hereof per square foot of rentable area in
the Leased Premises.
(4) The term "Actual Operating Expenses" shall mean, with respect
to each calendar year during the Term of this Lease, the actual Operating
Expenses for such year. The term "Actual Operating Expenses Rate" shall mean,
with respect to each calendar year during the Term of this Lease, the Actual
Operating Expenses attributable to each square foot of rentable area in the
Building, and shall be calculated by dividing the Actual Operating Expenses by
the total number of square feet of rentable area in the Building, as specified
in Paragraph 1.G. hereof. The term "Tenant's Proportionate Share of Actual
Operating Expenses" shall mean, with respect to each calendar year during the
Term of this Lease, an amount equal to the product of (i) the positive
difference (if any) obtained by subtracting the Base Operating Expenses Rate
from the Actual Operating Expenses Rate, multiplied by (ii) the weighted average
number of square feet of rentable area in the Leased Premises in such year;
provided, however, if the Actual Operating Expenses Rate is determined on the
basis of a partial calendar year, then in making the foregoing calculation, the
Base Operating Expenses Rate shall be multiplied by a fraction, the numerator of
which is the number of days in such partial calendar year and the denominator of
which is 365, and the foregoing weighted average shall be calculated only on the
basis of the portion of such calendar year covered by the Term of this Lease.
For example, if the Actual Operating Expenses Rate for a
calendar year is $3.20 and the Base Operating Expenses Rate is $3.00, and the
Leased Premises contains 19,000 square feet of rentable area during the entire
calendar year, Tenant's Proportionate Share of Actual Operating Expenses is
$3,800.00, calculated as follows: ($3.20 - $3.00) x 19,000 = $3,800.00.
B. If the Actual Operating Expenses Rate during any calendar year
is greater than the Base Operating Expenses Rate, Tenant shall be obligated to
pay to Landlord as additional rental an amount equal to Tenant's Proportionate
Share of Actual Operating Expenses. To implement the foregoing, Landlord shall
provide to Tenant within ninety (90) days (or as soon thereafter as reasonably
possible) after the end of the calendar year in which the Commencement Date
occurs, a statement of the Actual Operating Expenses for such calendar year, the
Actual Operating Expenses Rate for such calendar year, and Tenant's
Proportionate Share of Actual Operating Expenses. If the Actual Operating
Expenses Rate for such calendar year exceeds the Base Operating Expenses Rate,
Tenant shall pay to Landlord, within thirty (30) days after Tenant's receipt of
such statement, an amount equal to Tenant's Proportionate Share of Actual
Operating Expenses for such calendar year.
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C. Beginning with the Commencement Date of this Lease (or as soon
thereafter as reasonably possible), Landlord shall provide to Tenant a statement
of the projected annual Operating Expenses per square foot of rentable area in
the Project (the "Projected Operating Expenses Rate"). Tenant shall pay to
Landlord on the first day of each month an amount (the "Projected Operating
Expenses Installment") equal to one-twelfth (1/12) of the product of (i) the
positive difference (if any) obtained by subtracting the Base Operating Expenses
Rate from the Projected Operating Expenses Rate for such calendar year,
multiplied by (ii) the number of square feet of rentable area in the Leased
Premises on the first day of the prior month. Until Tenant has received the
statement of the Projected Operating Expenses Rate from Landlord, Tenant shall
continue to pay Projected Operating Expenses Installments to Landlord in the
same amount (if any) as required for the last month of the prior calendar year.
Upon Tenant's receipt of such statement of the Projected Operating Expenses
Rate, Tenant shall pay to Landlord, or Landlord shall pay to Tenant (whichever
is appropriate), the difference between the amount paid by Tenant prior to
receiving such statement and the amount payable by Tenant as set forth in such
statement. Landlord shall provide Tenant a statement within ninety (90) days (or
as soon thereafter as reasonably possible) after the end of each calendar year,
showing the Actual Operating Expenses Rate as compared to the Projected
Operating Expenses Rate for such calendar year. If Tenant's Proportionate Share
of Actual Operating Expenses for such calendar year exceeds the aggregate of the
Projected Operating Expenses Installments collected by Landlord from Tenant,
Tenant shall pay to Landlord, within thirty (30) days following Tenant's receipt
of such statement, the amount of such excess. If Tenant's Proportionate Share of
Actual Operating Expenses for such calendar year is less than the aggregate of
the Projected Operating Expenses Installments collected by Landlord from Tenant,
Landlord shall credit such overpayment to Tenant's next accruing rental
installments, but if the Lease has expired and there are no existing defaults by
Tenant, Landlord shall pay such overpayment to Tenant, within thirty (30) days
following Tenant's receipt of such statement, the amount of such excess.
Landlord shall have the right from time to time during each calendar year to
revise the Projected Operating Expenses Rate and provide Tenant with a revised
statement thereof, and thereafter Tenant shall pay Projected Operating Expenses
Installments on the basis of the revised statement. If the Commencement Date of
this Lease is not the first day of a calendar year, or the expiration or
termination date of this Lease is not the last day of a calendar year, then
Tenant's Proportionate Share of Actual Operating Expenses shall be prorated. The
foregoing adjustment provisions shall survive the expiration or termination of
the Term of this Lease.
D. Notwithstanding any other provision herein to the contrary, it
is agreed that if the Project is not 95% occupied during any calendar year an
adjustment shall be made in computing the Actual Operating Expenses for such
year so that the Actual Operating Expenses are computed as though the Project
had been 95% occupied during such year.
E. Landlord agrees to keep books and records reflecting the
Operating Expenses of the Project in accordance with generally accepted
accounting principles. Tenant, at its expense, shall have the right, within six
(6) months after receiving Landlord's statement of Actual Operating Expenses for
a particular year, to audit Landlord's books and records relating to the
Operating Expenses for such year if the Actual Operating Expenses Rate exceeds
the Base Operating Expenses Rate; or, at Landlord's sole option, Landlord may
provide such audit prepared by a certified public accountant selected by
Landlord. If conducted by Tenant, such audit shall be conducted only during
regular business hours at Landlord's office and only after Tenant gives Landlord
fourteen (14) days written notice. Tenant shall deliver to Landlord a copy of
the results of such audit within fifteen (15) days of its receipt by Tenant. No
such audit shall be conducted if any other tenant has conducted an audit for the
time period Tenant intends to audit and Landlord furnishes to Tenant a copy of
the results of such audit. No audit shall be conducted at any time that Tenant
is in default of any of terms of the lease. No subtenant shall have any right to
conduct an audit and no assignee shall conduct an audit for any period during
which such assignee was not in possession of the Leased Premises. Such audit
must be conducted by an independent nationally recognized accounting firm that
is not being compensated by Tenant on a contingency fee basis. All information
obtained through the Tenant's audit with respect to financial matters
(including, without limitation, costs, expenses, income) and any other matters
pertaining to the Landlord and/or the Project as well as any compromise,
settlement, or adjustment reached between Landlord and Tenant relative to the
results of the audit shall be held in strict confidence by the Tenant and its
officers, agents, and employees; and Tenant shall cause its auditor and any of
its officers, agents, and employees to be similarly bound. As a condition
precedent to Tenant's exercise of its right to audit, Tenant must deliver to
Landlord a signed covenant from the auditor in a form reasonably satisfactory to
Landlord acknowledging that all of the results of such audit as well as any
compromise, settlement, or adjustment reached between Landlord and Tenant shall
be held in strict confidence and shall not be revealed in any manner to any
person except upon the prior written consent of Landlord, which consent may be
withheld in Landlord's sole discretion, or if required pursuant to any
litigation between Landlord and Tenant materially related to the facts disclosed
by such audit, or if required by law. Tenant understands and agrees that this
provision is of material importance to Landlord and that any violation of the
terms of this provision shall result in immediate and irreparable harm to
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Landlord. Landlord shall have all rights allowed by law or equity if Tenant, its
officers, agents, or employees and/or the auditor violate the terms of this
provision, including, without limitation, the right to terminate this Lease or
the right to terminate Tenant's right to audit in the future pursuant to this
paragraph. Tenant shall indemnify, defend upon request, and hold Landlord
harmless from and against all costs, damages, claims, liabilities, expenses,
losses, court costs, and attorneys' fees suffered by or claimed against
Landlord, based in whole or in part upon the breach of this paragraph by Tenant
and/or its auditor, and shall cause its auditor to be similarly bound. If within
such six (6) month period Tenant does not give Landlord written notice stating
in reasonable detail any objection to the statement of Actual Operating
Expenses, Tenant shall be deemed to have approved such statement in all
respects.
15. EMINENT DOMAIN. If there shall be taken by exercise of the power
of eminent domain during the Term of this Lease any part of the Leased Premises
or the Building, Landlord may elect to terminate this Lease or to continue same
in effect. If Landlord elects to continue this Lease, the rental shall be
reduced in proportion to the area of the Leased Premises so taken, and Landlord
shall repair any damage to the Leased Premises or the Building resulting from
such taking. All sums awarded or agreed upon between Landlord and the condemning
authority for the taking of the interest of Landlord or Tenant, whether as
damages or as compensation, will be the property of Landlord without prejudice,
however, to claims of Tenant against the condemning authority on account of the
unamortized cost of leasehold improvements paid for by Tenant taken by the
condemning authority. If this Lease should be terminated under any provision of
this Paragraph 15, rental shall be payable up to the date that possession is
taken by the condemning authority, and Landlord will refund to Tenant any
prepaid unaccrued rental less any sum then owing by Tenant to Landlord.
16. ACCESS BY LANDLORD. Landlord, Landlord's agents and employees
shall have access to and the right to enter upon any and all parts of the Leased
Premises at any reasonable time (except in cases of emergency, defined to be any
situation in which Landlord perceives imminent danger of injury to person and/or
damage to or loss of property, in which case Landlord may enter upon any and all
parts of the Leased Premises at any time) to examine the condition thereof, to
clean, to make any repairs, alterations or additions required to be made by
Landlord hereunder, to show the Leased Premises to prospective purchasers or
tenants or mortgage lenders (prospective or current) and for any other purpose
deemed reasonable by Landlord, and Tenant shall not be entitled to any abatement
or reduction of rental by reason thereof.
17. LANDLORD'S LIEN. In addition to the statutory landlord's lien,
Landlord shall have at all times a valid security interest to secure payment of
all rentals and other sums of money becoming due hereunder from Tenant, and to
secure payment of any damages or loss which Landlord may suffer by reason of the
breach by Tenant of any covenant, agreement or condition contained herein, upon
all goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant presently, or which may hereafter be, situated in
the Leased Premises, and all proceeds therefrom, and such property shall not be
removed therefrom without the consent of Landlord until all arrearages in rental
as well as any and all other sums of money then due to Landlord hereunder shall
first have been paid and discharged and all the covenants, agreements and
conditions hereof have been fully complied with and performed by Tenant. Upon
the occurrence of an Event of Default as set forth in Paragraph 18 hereof by
Tenant, Landlord may, to the extent permitted by law and in addition to any
other remedies provided herein, enter upon the Leased Premises and take
possession of any and all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant situated in the Leased
Premises, without liability for trespass or conversion, and sell the same at
public or private sale, with or without having such property at the sale, after
giving Tenant reasonable notice of the time and place of any public sale or of
the time after which any private sale is to be made, at which sale Landlord or
Landlord's assigns may purchase unless otherwise prohibited by law. Unless
otherwise provided by law, and without intending to exclude any other manner of
giving Tenant reasonable notice, the requirement of reasonable notice shall be
met if such notice is given in the manner prescribed in this Lease at least ten
(10) days before the time of sale. Any sale made pursuant to the provisions of
this Paragraph 17 shall be deemed to have been a public sale conducted in a
commercially reasonable manner if held in the Leased Premises or where the
property is located after the time, place and method of sale and a general
description of the types of property to be sold have been advertised in a daily
newspaper published in the county in which the Building is located, for five (5)
consecutive days before the date of the sale. The proceeds from any such
disposition, less any and all expenses connected with the taking of possession,
holding and selling of the property (including reasonable attorneys' fees) shall
be applied as a credit against the indebtedness secured by the security interest
granted in this Paragraph 17. Any surplus shall be paid to Tenant or as
otherwise required by law; Tenant shall pay any deficiencies forthwith. Upon
request of Landlord, Tenant agrees to execute Uniform Commercial Code financing
statements relating to the aforesaid security interest.
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18. DEFAULTS.
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A. Each of the following acts or omissions of Tenant or
occurrences shall constitute an "Event of Default":
(1) Failure or refusal by Tenant to timely pay rental or other
payments hereunder.
(2) Failure to perform or observe any covenant or condition of
this Lease by Tenant to be performed or observed upon the expiration
of a period of ten (10) days following written notice to Tenant of
such failure.
(3) Abandonment or vacating of the Leased Premises or any
significant portion thereof.
(4) The filing or execution or occurrence of any one of the
following: (i) a petition in bankruptcy or other insolvency proceeding
by or against Tenant, (ii) petition or answer seeking relief under any
provision of the Bankruptcy Act, (iii) an assignment for the benefit
of creditors or composition, (iv) a petition or other proceeding by or
against Tenant for the appointment of a trustee, receiver or
liquidator of Tenant or any of Tenant's property, or (v) a proceeding
by any governmental authority for the dissolution or liquidation of
Tenant.
(5) Tenant shall default under any other lease with Landlord, now
existing or hereafter entered into.
B. This Lease and the Term and estate hereby granted and the
demise hereby made are subject to the limitation that if and whenever any Event
of Default shall occur, Landlord may, at Landlord's option, in addition to all
other rights and remedies given hereunder or by law or equity, do any one (1) or
more of the following without notice or demand, any such notice or demand being
hereby waived:
(1) Terminate this Lease, in which event Tenant shall immediately
surrender possession of the Leased Premises to Landlord.
(2) Enter upon and take possession of the Leased Premises and
expel or remove Tenant and any other occupant therefrom, with or
without having terminated the Lease.
(3) Alter locks and other security devices at the Leased
Premises.
C. Exercise by Landlord of any one (1) or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Leased Premises by Tenant, whether by agreement or by operation
of law, it being understood that such surrender can be effected only by the
written agreement of Landlord and Tenant. No such alteration of security devices
and no removal or other exercise of dominion by Landlord over the property of
Tenant or others at the Leased Premises shall be deemed unauthorized or
constitute a conversion, Tenant hereby consenting, after any Event of Default,
to the aforesaid exercise of dominion over Tenant's property within the
Building. All claims for damages by reason of such re-entry and/or possession
and/or alteration of locks or other security devices are hereby waived, as are
all claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Tenant agrees
that any re-entr by Landlord may be pursuant to judgment obtained in forcible
detainer proceedings or other legal proceedings or without the necessity for any
legal proceedings, as Landlord may elect, and Landlord shall not be liable in
trespass or otherwise.
D. In the event that Landlord elects to terminate this Lease by
reason of an Event of Default, then, notwithstanding such termination, Tenant
shall be liable for and shall pay to Landlord, at the address specified in
Paragraph 1.B. hereof, the sum of all rental and other indebtedness accrued to
the date of such termination, plus, as damages, an amount equal to the then
present value of the rental reserved hereunder for the remaining portion of the
Term of this Lease (had such Term not been terminated by Landlord prior to the
expiration of the Term of this Lease), less the then present value of the fair
rental value of the Leased Premises for such period.
In the event that Landlord elects to terminate the Lease by
reason of an Event of Default, in lieu of exercising the rights of Landlord
under the preceding paragraph of this Paragraph 18.D., Landlord may instead hold
Tenant liable for all rental and other indebtedness accrued to the date of such
termination, plus such rental and other indebtedness as would otherwise have
been required to be paid by Tenant to Landlord during the period following
termination of the Term of this Lease measured from the date of such termination
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by Landlord until the expiration of the Term of this Lease (had Landlord not
elected to terminate the Lease on account of such Event of Default) diminished
by any net sums thereafter received by Landlord through reletting the Leased
Premises during said period (after deducting expenses incurred by Landlord as
provided in Paragraph 18.F. hereof). Actions to collect amounts due by Tenant
provided for in this paragraph of this Paragraph 18.D. may be brought from time
to time by Landlord during the aforesaid period, on one (1) or more occasions,
without the necessity of Landlord's waiting until the expiration of such period,
and in no event shall Tenant be entitled to any excess of rental (or rental plus
other sums) obtained by reletting over and above the rental provided for in this
Lease.
E. In the event that Landlord elects to repossess the Leased
Premises without terminating this Lease, then Tenant shall be liable for and
shall pay to Landlord, at the address specified in Paragraph 1.B. hereof, all
rental and other indebtedness accrued to the date of such repossession, plus
rental required to be paid by Tenant to Landlord during the remainder of the
Term of this Lease until the expiration of the Term of this Lease, diminished by
any net sums thereafter received by Landlord through reletting the Leased
Premises during said period (after deducting expenses incurred by Landlord as
provided in Paragraph 18.F. hereof). In no event shall Tenant be entitled to any
excess of any rental obtained by reletting over and above the rental herein
reserved. Actions to collect amounts due by Tenant as provided in this Paragraph
18.E. may be brought from time to time, on one (1) or more occasions, without
the necessity of Landlord's waiting until the expiration of the Term of this
Lease.
F. In case of an Event of Default, Tenant shall also be liable
for and shall pay to Landlord, at the address specified in Paragraph 1.B.
hereof, in addition to any sum provided to be paid above: (i) broker's fees
incurred by Landlord in connection with reletting the whole or any part of the
Leased Premises, (ii) the cost of removing and storing Tenant's or other
occupant's property, (iii) the cost of repairing, altering, remodeling or
otherwise putting the Leased Premises into condition acceptable to a new tenant
or tenants, and (iv) all reasonable expenses incurred by Landlord in enforcing
Landlord's remedies, including reasonable attorneys' fees. Past due rental and
other past due payments shall bear interest from maturity at the highest lawful
rate per annum until paid.
G. Tenant acknowledges that Landlord has entered into this Lease
in reliance upon, among other matters, Tenant's agreement and continuing
obligation to pay all rental due throughout the Term. As a result, Tenant hereby
knowingly and voluntarily waives, after advice of competent counsel, any duty of
Landlord (and any affirmative defense based upon such duty) following any
default to relet the Leased Premises or otherwise mitigate Landlord's damages
arising from such default. If such waiver is not effective under then applicable
law or Landlord otherwise elects, at Landlord's sole option, to attempt to relet
all or any part of the Leased Premises, Tenant agrees that Landlord has no
obligation to: (i) relet the Leased Premises prior to leasing any other space
within the Building; (ii) relet the Leased Premises (A) at a rental rate or
otherwise on terms below market, as then determined by Landlord in its sole
discretion; (B) to any entity not satisfying Landlord's then standard financial
credit risk criteria; (C) for a use (1) not consistent with Tenant's use prior
to default; (2) which would violate then applicable law or any restrictive
covenant or other lease affecting the Building; (3) which would impose a greater
burden upon the Building's parking, HVAC or other facilities; and/or (4) which
would involve any use of hazardous substances; (iii) divide the Leased Premises,
install new demising walls or otherwise reconfigure the Leased Premises to make
same more marketable; (iv) pay any leasing or other commissions arising from
such reletting, unless Tenant unconditionally delivers Landlord, in good and
sufficient funds, the full amount thereof in advance; (v) pay, and/or grant any
allowance for, tenant finish or other costs associated with any new lease, even
though same may be amortized over the applicable lease term, unless Tenant
unconditionally delivers Landlord, in good and sufficient funds, the full amount
thereof in advance; and/or (vi) relet the Leased Premises, if to do so, Landlord
would be required to alter other portions of the Building, make ADA-type
modifications or otherwise install or replace any sprinkler, security, safety,
HVAC or other Building operating systems. Tenant further acknowledges that if
Tenant, notwithstanding Tenant's waiver above, raises Landlord's mitigation as
an affirmative defense to a claim made by Landlord prior to any actual reentry
of the Leased Premises by Landlord then, in such event, Tenant will be deemed to
have automatically waived, and released and discharged Landlord from and
against, any and all other claims and defenses to the payment of rental.
H. If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the Leased Premises for such purpose), and thereupon Tenant shall be obligated
to, and hereby agrees to, pay Landlord, upon demand, all costs, expenses and
disbursements (including reasonable attorneys' fees) incurred by Landlord in
taking such remedial action.
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I. In the event of any default by Landlord, Tenant's exclusive
remedy shall be an action for damages (Tenant hereby waiving the benefit of any
laws granting Tenant a lien upon the property of Landlord and/or upon rental due
Landlord), but prior to any such action Tenant will give Landlord written notice
specifying such default with particularity, and Landlord shall thereupon have
thirty (30) days (plus such additional reasonable period as may be required in
the exercise by Landlord of due diligence) in which to cure any such default.
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. All obligations
of Landlord hereunder will be construed as covenants, not conditions; and all
such obligations will be binding upon Landlord only during the period of
Landlord's possession of the Building and not thereafter.
The term "Landlord" shall mean only the owner, for the time
being, of the Building, and in the event of the transfer by such owner of its
interest in the Building, such owner shall thereupon be released and discharged
from all covenants and obligations of the Landlord thereafter accruing, but such
covenants and obligations shall be binding during the Term of this Lease upon
each new owner for the duration of such owner's ownership.
19. NONWAIVER. Neither acceptance of rental or other payments by
Landlord nor failure by Landlord to complain of any action, nonaction or default
of Tenant shall constitute a waiver of any of Landlord's rights hereunder.
Waiver by Landlord of any right for any default of Tenant shall not constitute a
waiver of any right for either a subsequent default of the same obligation or
any other default. Receipt by Landlord of Tenant's keys to the Leased Premises
shall not constitute an acceptance of surrender of the Leased Premises.
20. HOLDING OVER. If Tenant should remain in possession of the Leased
Premises after the expiration of the Term of this Lease, without the execution
by Landlord and Tenant of a new lease or an extension of this Lease, then Tenant
shall be deemed to be occupying the Leased Premises as a tenant-at-sufferance,
subject to all the covenants and obligations of this Lease and at a daily rental
of 200% of the per day rental provided for the last month of the Term of this
Lease, computed on the basis of a thirty (30) day month. The inclusion of the
preceding sentence shall not be construed as Landlord's consent for Tenant to
hold over. If any property not belonging to Landlord remains at the Leased
Premises after the expiration of the Term of this Lease, Tenant hereby
authorizes Landlord to make such disposition of such property as Landlord may
desire without liability for compensation or damages to Tenant in the event that
such property is the property of Tenant; and in the event that such property is
the property of someone other than Tenant, Tenant agrees to indemnify and hold
Landlord harmless from all suits, actions, liability, loss, damages and expenses
in connection with or incident to any removal, exercise or dominion over and/or
disposition of such property by Landlord.
21. COMMON AREA. The Common Area, as defined in Paragraph 1.N.
hereof, shall be subject to Landlord's sole management and control and shall be
operated and maintained in such manner as Landlord in Landlord's discretion
shall determine. Landlord reserves the right to change from time to time the
dimensions and location of the Common Area, to construct additional stories on
the Building and to place, construct or erect new structures or other
improvements on any part of the Land without the consent of Tenant. Tenant, and
Tenant's employees and invitees shall have the nonexclusive right to use the
Common Area as constituted from time to time, such use to be in common with
Landlord, other tenants of the Building and other persons entitled to use the
same, and subject to such reasonable rules and regulations governing use as
Landlord may from time to time prescribe. Tenant shall not solicit business or
display merchandise within the Common Area, or distribute handbills therein, or
take any action which would interfere with the rights of other persons to use
the Common Area. Landlord may temporarily close any part of the Common Area for
such periods of time as may be necessary to prevent the public from obtaining
prescriptive rights or to make repairs or alterations.
22. RULES AND REGULATIONS. Tenant, and Tenant's agents, employees and
invitees shall comply fully with all requirements of the rules and regulations
of the Building which are attached hereto as Exhibit B and made a part hereof.
Landlord shall at all times have the right to change such rules and regulations
or to amend or supplement them in such manner as may be deemed advisable for the
safety, care and cleanliness of the Leased Premises and the Building and for
preservation of good order therein, all of which rules and regulations, changes
and amendments shall be forwarded to Tenant and shall be carried out and
observed by Tenant. Tenant shall further be responsible for the compliance with
such rules and regulations by the employees, agents and invitees of Tenant.
23. TAXES. Tenant shall be liable for the timely payment of all taxes
levied or assessed against personal property, furniture or fixtures or equipment
placed by Tenant in the Leased Premises. If any such taxes for which Tenant is
liable are levied or assessed against Landlord or Landlord's property and if
Landlord elects to pay the same, or if the assessed value of Landlord's property
is increased by inclusion of personal property, furniture or fixtures or
equipment placed by Tenant in the Leased Premises, and Landlord elects to pay
the taxes based on such increase, Tenant shall pay to Landlord upon demand that
part of such taxes for which Tenant is liable hereunder.
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24. INSURANCE. Tenant shall, at Tenant's expense, procure and
maintain throughout the Term of this Lease a policy or policies of commercial
general liability insurance (including contractual liability) and property
damage insurance, issued by insurers of recognized responsibility, authorized to
do business in the State in which the Building is located, insuring Tenant and
Landlord against any and all liability for injury to or death of a person or
persons, occasioned by or arising out of or in connection with the use or
occupancy of the Leased Premises, the limits of such policy or policies to be in
an amount of not less than $2,000,000 combined single limit with respect to any
one (1) occurrence, and shall furnish evidence satisfactory to Landlord of the
maintenance of such insurance. Tenant shall obtain a written obligation on the
part of each insurer to notify Landlord at least fifteen (15) days prior to
modification or cancellation of such insurance. In the event Tenant shall not
have delivered to Landlord a policy or certificate evidencing such insurance at
least fifteen (15) days prior to the Commencement Date and at least fifteen (15)
days prior to the expiration dates of each expiring policy, Landlord may obtain
such insurance as Landlord may reasonably require to protect Landlord's
interest. The cost for such policies shall be paid by Tenant to Landlord as
additional rental upon demand plus an administrative charge as determined by
Landlord.
25. PERSONAL LIABILITY. The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited to the
proceeds of sale on execution of the interest of Landlord in the Building and in
the Land, and neither Landlord, nor any party comprising Landlord, shall be
personally liable for any deficiency. This clause shall not be deemed to limit
or deny any remedies which Tenant may have in the event of default by Landlord
hereunder which do not involve the personal liability of Landlord.
26. NOTICE. Any notice which may or shall be given under the terms of
this Lease shall be in writing and shall be either delivered by hand (including
commercially recognized messenger and express mail service) or sent by United
States Mail, registered or certified, return receipt requested, postage prepaid,
if for Landlord, to the Building office and at the address specified in
Paragraph 1.B. hereof, or if for Tenant, to the Leased Premises or, if prior to
the Commencement Date, at the address specified in Paragraph 1.D. hereof, or at
such other addresses as either party may have theretofore specified by written
notice delivered in accordance herewith. Such address may be changed from time
to time by either party by giving notice as provided herein. Notice shall be
deemed given when delivered (if delivered by hand) or, whether actually received
or not, when postmarked (if sent by mail). If the term "Tenant" as used in this
Lease refers to more than one (1) person and/or entity, and notice given as
aforesaid to any one of such persons and/or entities shall be deemed to have
been duly given to Tenant.
27. LANDLORD'S MORTGAGEE. If the Building and/or Leased Premises are
at any time subject to a ground lease, mortgage, deed of trust or other lien,
then in any instance in which Tenant gives notice to Landlord alleging default
by Landlord hereunder, Tenant will also simultaneously give a copy of such
notice to each Landlord's Mortgagee (provided Landlord or Landlord's Mortgagee
shall have advised Tenant of the name and address of Landlord's Mortgagee) and
each Landlord's Mortgagee shall have the right (but no obligation) to cure or
remedy such default during the period that is permitted to Landlord hereunder,
plus an additional period of thirty (30) days, then Tenant will accept such
curative or remedial action (if any) taken by Landlord's Mortgagee with the same
effect as if such action had been taken by Landlord.
28. BROKERAGE. Tenant represents and warrants that it has dealt with
no broker, agent or other person in connection with this transaction and that no
broker, agent or other person brought about this transaction, other than Broker
specified in Paragraph 1.P. hereof, and Tenant agrees to indemnify and hold
Landlord harmless from and against any claims by any other broker, agent or
other person claiming a commission or other form of compensation by virtue of
having dealt with Tenant with regard to this leasing transaction. The provisions
of this Paragraph 28 shall survive the termination of this Lease.
29. PREPAID RENTAL AND SECURITY DEPOSIT. Landlord hereby acknowledges
receipt from Tenant of the sum stated in Paragraph 1.K. hereof to be applied to
the first accruing monthly installments of rental. Landlord further acknowledges
receipt from Tenant of a Security Deposit in the amount stated in Paragraph 1.L.
hereof to be held by Landlord as security for the performance by Tenant of
Tenant's covenants and obligations under this Lease, it being expressly
understood that such deposit shall not be considered an advance payment of
rental or a measure of Landlord's damages in case of default by Tenant. The
Security Deposit shall be held by Landlord without liability to Tenant for
interest, and Landlord may commingle such deposit with any other funds held by
Landlord. If Tenant should be late in the making of any payment of rental or
other sum due under this Lease, Tenant agrees that, upon request of Landlord,
Tenant will increase forthwith the amount of the Security Deposit to a sum
double the existing amount thereof. Upon the occurrence of any Event of Default,
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Landlord may, from time to time, without prejudice to any other remedy, use such
fund to the extent necessary to make good any arrears of rental and any other
damage, injury, expense or liability caused to Landlord by such Event of
Default. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the Security
Deposit to the amount thereof immediately prior to such application. If Tenant
is not then in default hereunder, any remaining balance of such deposit shall be
returned by Landlord to Tenant upon termination of this Lease; provided,
however, Landlord shall have the right to retain and expend such remaining
balance for cleaning and repairing the Leased Premises if Tenant shall fail to
deliver up the same at the expiration or earlier termination of this Lease in
the condition required by the provisions of this Lease. If Landlord transfers
Landlord's interest in the Leased Premises during the Term of this Lease
(including any renewal thereof), Landlord may assign the Security Deposit to the
transferee and thereafter shall have no further liability for the return of the
Security Deposit.
30. MISCELLANEOUS.
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A. Provided Tenant complies with Tenant's covenants, duties and
obligations hereunder, Tenant shall quietly have, hold and enjoy the Leased
Premises subject to the terms and provisions of this Lease without hindrance
from Landlord or any person or entity claiming by, through or under Landlord.
B. In any circumstance where Landlord is permitted to enter upon
the Leased Premises during the Term of this Lease, whether for the purpose of
curing any default of Tenant, repairing damage resulting from fire or other
casualty or an eminent domain taking or is otherwise permitted hereunder or by
law to go upon the Leased Premises, no such entry shall constitute an eviction
or disturbance of Tenant's use and possession of the Leased Premises or a breach
by Landlord of any of Landlord's obligations hereunder or render Landlord liable
for damages for loss of business or otherwise or entitle Tenant to be relieved
from any of Tenant's obligations hereunder or grant Tenant any right of setoff
or recoupment or other remedy; and in connection with any such entry incident to
performance of repairs, replacements, maintenance or construction, all of the
aforesaid provisions shall be applicable notwithstanding that Landlord may elect
to take building materials in, to or upon the Leased Premises that may be
required or utilized in connection with such entry by Landlord.
C. Landlord may restrain or enjoin any breach or threatened
breach of any covenant, duty or obligation of Tenant herein contained without
the necessity of proving the inadequacy of any legal remedy or irreparable harm.
The remedies of Landlord hereunder shall be deemed cumulative, and no remedy of
Landlord, whether exercised by Landlord or not, shall be deemed to be in
exclusion of any other. Except as may be otherwise herein expressly provided, in
all circumstances under this Lease where prior consent or permission of one (1)
party ("first party") is required before the other party ("second party") is
authorized to take any particular type of action, the matter of whether to grant
such consent or permission shall be within the sole and exclusive judgment and
discretion of the first party; and it shall not constitute any nature of breach
by the first party hereunder or any defense to the performance of any covenant,
duty or obligation of the second party hereunder that the first party delayed or
withheld the granting of such consent or permission, whether or not the delay or
withholding of such consent or permission was prudent or reasonable or based on
good cause.
D. In all instances where Tenant is required to pay any sum or do
any act at a particular indicated time or within an indicated period, it is
understood that time is of the essence.
E. The obligation of Tenant to pay all rental and other sums
hereunder provided to be paid by Tenant and the obligation of Tenant to perform
Tenant's other covenants and duties hereunder constitute independent,
unconditional obligations to be performed at all times provided for hereunder,
save and except only when an abatement thereof or reduction therein is
hereinabove expressly provided for and not otherwise. Tenant waives and
relinquishes all rights which Tenant might have to claim any nature of lien
against or withhold, or deduct from or offset against any rental and other sums
provided hereunder to be paid Landlord by Tenant. Tenant waives and relinquishes
any right to assert, either as a claim or as a defense, that Landlord is bound
to perform or is liable for the nonperformance of any implied covenant or
implied duty of Landlord not expressly herein set forth.
F. Under no circumstances whatsoever shall Landlord ever be
liable hereunder for consequential damages or special damages.
G. Landlord retains the exclusive right to create any additional
improvements to structural and/or mechanical systems, interior and exterior
walls and/or glass, which Landlord deems necessary without the prior consent of
Tenant.
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H. All monetary obligations of Landlord and Tenant (including,
without limitation, any monetary obligation of Landlord or Tenant for damages
for any breach of the respective covenants, duties or obligations of Landlord or
Tenant hereunder) are performable exclusively in the county in which the
Building is located.
I. The laws of the State in which the Building is located shall
govern the interpretation, validity, performance and enforcement of this Lease.
J. If any clause or provision of this Lease is or becomes
illegal, invalid, or unenforceable because of present or future laws or any rule
or regulation of any governmental body or entity, effective during the Term of
this Lease, the intention of the parties hereto is that the remaining parts of
this Lease shall not be affected thereby.
K. It is mutually agreed by and between Landlord and Tenant that
the respective parties hereto shall and they hereby do waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of landlord and tenant, Tenant's use
or occupancy of the Leased Premises, and any emergency statutory or any other
statutory remedy.
L. Landlord expressly reserves the right, at Landlord's sole cost
and expense, to remove Tenant from the Leased Premises and to relocate Tenant in
some other space (the "New Premises") of Landlord's choosing of approximately
the same dimensions and size within the Building or any other office building
now or hereafter placed, constructed or erected on the tract of land which is
described on Exhibit B, which other space shall be decorated by Landlord at
Landlord's sole cost and expense. Landlord shall have the right, in Landlord's
sole discretion, to use such decorations and materials from the Leased Premises,
or other materials, so that the New Premises shall be comparable in its interior
design and decoration to the Leased Premises; provided, however, that if
Landlord exercises Landlord's election to remove and relocate Tenant in the New
Premises, which is at that time leasing for a higher rate of Base Rental, then
Tenant shall not be required to pay the difference between the Base Rental of
the Leased Premises and the higher Base Rental of the New Premises. Nothing
herein contained shall be construed to relieve Tenant, or imply that Tenant is
relieved, of the liability for or obligation to pay any additional rental due by
reason of any of the other provisions of this Lease, which provisions shall be
applied to the New Premises. Tenant agrees that Landlord's exercise of
Landlord's election to remove and relocate Tenant shall not terminate this Lease
or release Tenant, in whole or in part, from Tenant's obligation to pay the
rental and perform the covenants and agreements hereunder for the full Term of
this Lease. In the event of any such relocation, this Lease shall continue in
full force and effect with no change in the terms, covenants or conditions
hereof other than the substitution of the New Premises for the Leased Premises
specified in Paragraph 1.F. hereof. Upon request from Landlord, Tenant shall
execute an amendment to this Lease reflecting the aforesaid change.
M. No receipt of money by Landlord from Tenant after the
expiration of the Term of this Lease, or after the service of any notice, or
after the commencement of any suit, or after final judgment for possession of
the Leased Premises, shall reinstate, continue or extend the Term of this Lease
or affect any such notice, demand or suit or imply consent for any action for
which Landlord's consent is required.
N. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires. The headings
of the Paragraphs of this Lease have been inserted for convenience only and are
not to be considered in any way in the construction or interpretation of this
Lease.
O. Tenant agrees that Tenant shall from time to time upon request
by Landlord and/or Landlord's Mortgagee execute and deliver to Landlord a
statement in recordable form certifying (i) that the Lease is unmodified and in
full force and effect (or, if there have been modifications, that the same is in
full force and effect as so modified), (ii) the dates to which rental and other
charges payable under this Lease have been paid, and (iii) that Landlord is not
in default hereunder (or, if Landlord is in default, specifying the nature of
such default). Tenant further agrees that Tenant shall from time to time upon
request by Landlord execute and deliver to Landlord an instrument in recordable
form acknowledging Tenant's receipt of any notice of assignment of this Lease by
Landlord.
P. In no event shall Tenant have the right to create or permit
there to be established any lien or encumbrance of any nature against the Leased
Premises or the Building for any improvement or improvements by Tenant, and
Tenant shall fully pay the cost of any improvement or improvements made or
contracted for by Tenant. Any mechanic's lien filed against the Leased Premises
or the Building for work claimed to have been done, or materials claimed to have
been furnished to Tenant, shall be duly discharged by Tenant within ten (10)
days after the filing of the lien.
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Q. Whenever a period of time is herein prescribed for action to
be taken by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation for 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 Landlord.
R. This Lease shall not be recorded by either party without the
consent of the other.
S. Nothing herein contained 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 the
computation of rental, nor any other provision 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.
T. Whenever it is provided herein that a monetary sum shall be
due to Landlord together with interest at the highest lawful rate, if at such
time there shall be no highest rate prescribed by applicable law, interest shall
be due at the rate of two percent (2%) in excess of Prime Rate as defined in
Paragraph 1.O. hereof.
U. Tenant acknowledges that Landlord's agents and employees have
made no representations or promises with respect to the Leased Premises or the
Building except as herein expressly set forth, and Tenant further acknowledges
that no rights, easements or licenses are acquired by Tenant by implication or
otherwise, except as herein expressly set forth.
V. Tenant warrants that Tenant is, and shall remain throughout
the Term of this Lease, authorized to do business and in good standing in the
State in which the Building is located. Tenant agrees, upon request by Landlord,
to furnish Landlord satisfactory evidence of Tenant's authority for entering
into this Lease.
W. In case it should be necessary or proper for Landlord to bring
any action under this Lease (including specifically, without limitation, for the
review of instruments evidencing a proposed assignment, subletting or other
transfer by Tenant submitted to Landlord for consent) or the enforcement of any
of Landlord's rights hereunder, Tenant agrees to pay to Landlord reasonable
attorneys' fees whether suit be brought or not.
X. In the event Tenant requests from Landlord the written consent
of Landlord to any proposed action for which this Lease requires such consent,
Landlord may require (in addition to the payment of reasonable attorney's fees)
the payment by Tenant of a fee representing the administrative cost incurred by
Landlord in processing such request, regardless of whether such consent is
granted. Such fee shall be payable by Tenant at the time such request is made by
Tenant.
Y. Submission of this Lease for examination does not constitute
an offer, right of first refusal, reservation of, or option for, the Leased
Premises or any other premises in the Building. This Lease shall become
effective only upon execution and delivery by both Landlord and Tenant.
Z. If Tenant is composed of more than one (1) person or entity,
each person and/or entity comprising Tenant shall be jointly and severally
liable for the performance of the obligations of Tenant under this Lease,
including specifically, without limitation, the payment of rental and all other
sums payable hereunder.
AA. Landlord shall have the right at any time to change the name
or street address of the Building and to install and maintain a sign or signs on
the interior or exterior of the Building.
BB. Any charges against Tenant by Landlord for services or for
work done on the Leased Premises by order of Tenant, or otherwise accruing under
this Lease, shall be considered as rental due and shall be included in any lien
for rental.
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CC. Tenant has no right to protest the real estate tax rate
assessed against the Project and/or the appraised value of the Project
determined by any appraisal review board or other taxing entity with authority
to determine tax rates and/or appraised values (each a "Taxing Authority").
Tenant hereby knowingly, voluntarily and intentionally waives and releases any
right, whether created by law or otherwise, to (a) file or otherwise protest
before any Taxing Authority any such rate or value determination even though
Landlord may elect not to file any such protest; (b) receive, or otherwise
require Landlord to deliver, a copy of any reappraisal notice received by
Landlord from any Taxing Authority; and (c) appeal any order of a Taxing
Authority which determines any such protest. The foregoing waiver and release
covers and includes any and all rights, remedies and recourse of Tenant, now or
at any time hereafter, under Section 41.413 and Section 42.015 of the Texas Tax
Code (as currently enacted or hereafter modified) together with any other or
further laws, rules or regulations covering the subject matter thereof. Tenant
acknowledges and agrees that the foregoing waiver and release was bargained for
by Landlord and Landlord would not have agreed to enter into this Lease in the
absence of this waiver and release.
DD. The parties acknowledge that the parties and their counsel
have reviewed and revised this Lease and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Lease or any exhibits or
amendments hereto.
31. ENTIRE AGREEMENT AND BINDING EFFECT. This Lease and any
contemporaneous workletter, addenda or exhibits signed by the parties constitute
the entire agreement between Landlord and Tenant; no prior written or prior
contemporaneous oral promises or representations shall be binding. This Lease
shall not be amended, changed or extended except by written instrument signed by
both parties hereto. The provisions of this Lease shall be binding upon and
inure to the benefit of the heirs, personal representatives, successors and
assigns of the parties, but this provision shall in no way alter the restriction
herein in connection with assignment, subletting and other transfer by Tenant.
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EXECUTED in multiple counterparts, each of which shall have the force and
effect of an original, on the date specified below.
LANDLORD:
DALLAS OFFICE PORTFOLIO, L.P.,
a Delaware limited partnership
By: Suburban Dallas Office Portfolio, LLC,
a Delaware limited liability company, its
sole general partner
By: Beacon Capital Partners, L.P., a Delaware
limited partnership, its sole member
By: Beacon Capital Partners, Inc., a Maryland
corporation, its sole general partner
Date Signed:_______________ By:
----------------------
Name:
----------------------
Title:
----------------------
TENANT:
Windsor Woodmont Black Hawk Resort Corp.
----------------------------------------
Date Signed:_________________ By:
----------------------
Name:
----------------------
Title:
----------------------
Hereto Duly Authorized
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Addendum to Lease
By and Between
Dallas Office Porfolio, L.P. (Landlord)
And
Windsor Woodmont Black Hawk Resort Corp.(Tenant)
1. Financial Condition . Tenant does hereby guaranty that the financial
statements and bank deposit records attached herein as Exhibit G, are true and
accurate and represent a true picture of the current financial condition of
Tenant. Tenant does hereby acknowledge Landlord's reliance upon this
representation as the basis for Landlord's decision to finalize this Lease.
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Exhibit A
[Diagram of Leased Premises]
[GRAPHIC OMITTED]
Exhibit A - Page 1 of 1
EXHIBIT B
---------
Legal Description of Land
Tract A:
Parcel 1:
BEING a tract of land out of the City of Xxxxxx Xxx 0, Xxxxx A/8417 and being
all of Xxx 0X, Xxxxxxxxxx Xxxxx XX addition as filed for record in Volume 86195,
Page 3430, Deed Records of Dallas County, Texas, and being more particularly
described as follows:
BEGINNING at a iron rod found in the South line of Chimney Hill Lane (80 feet
wide), said point being North 89 degrees 42 minutes 00 seconds East, 10.00 feet
from the intersection of the said South line and the East line of Xxxxxx Road
(100 feet wide);
THENCE North 89 degrees 42 minutes 00 seconds East, along the said South line a
distance of 203.54 feet to an "x" found for the point of curvature of a circular
curve to the right having a radius of 1105.92 feet and whose chord bears South
82 degrees 18 minutes 15 seconds East;
THENCE Northeasterly and Southeasterly, continuing along said South line and
along said curve, through a central angle of 15 degrees 59 minutes 30 seconds an
arc distance of 308.67 feet to an iron rod found for the point of tangency;
THENCE South 74 degrees 18 minutes 30 seconds East, continuing along said South
line a distance of 107.29 feet to an iron rod found for the point of curvature
of a circular curve to the left, having a radius of 921.47 feet and whose cord
bears South 80 degrees 07 minutes 25 seconds East;
THENCE Southeasterly continuing along said South line of Chimney Hill Lane and
along said curve through a central angle of 11 degrees 37 minutes 50 seconds an
arc distance of 187.05 feet to an iron rod found for a corner;
THENCE South 00 degrees 18 minutes 00 seconds East, departing said South line of
Chimney Hill Lane a distance of 106.22 feet to an iron rod found for a corner;
THENCE South 89 degrees 42 minutes 00 seconds West, a distance of 91.10 feet to
an "x" found for a corner;
THENCE South 00 degrees 18 minutes 00 seconds East, a distance of 2.10 feet to
an "x" found for a corner;
THENCE South 89 degrees 42 minutes 00 seconds West, a distance of 72.28 feet to
an "x" found for a corner;
THENCE South 00 degrees 18 minutes 00 seconds East, a distance of 137.11 feet to
an "x" found for a corner;
THENCE South 09 degrees 42 minutes 00 seconds West, a distance of 37.73 feet to
an "x" found for a corner;
THENCE South 89 degrees 42 minutes 00 seconds West, a distance of 635.28 feet to
an iron rod found for a corner lying on the East line of Xxxxxx Road;
THENCE North 00 degrees 17 minutes 00 seconds West, a distance of 238.30 feet to
an iron rod found for a corner;
Exhibit B - Page 1 of 3
THENCE North 00 degrees 18 minutes 00 seconds West, a distance of 139.63 feet to
an iron rod found for a corner;
THENCE North 44 degrees 41 minutes 54 seconds East, a distance of 14.14 feet to
the POINT OF BEGINNING and containing 256,341 square feet or 5.8848 acres of
land, more or less.
Parcel 2 (Easement Estate):
Easement Estate created in Easement Agreement dated January 29, 1986, by and
between the Prudential Insurance Company of America and Triton Southwest
Investors filed February 3, 1986, recorded in Volume 86022, Page 878 of the Deed
Records of Dallas County, Texas, as amended in Deed from The Prudential
Insurance Company of America to Triton Southwest Investors dated February 6,
1986, filed February 10, 1986, recorded in Volume 86027, Page 2880 of the Deed
Records of Dallas County, Texas, covering the following described lands, to-wit:
BEING a tract of land in the X. X. Xxxxxxxx Survey, Abstract No. 1159 and the X.
X. Xxxx Survey, Abstract No. 660 and being part of City of Dallas Xxx 0, Xxxxx
X/0000 xx xxx Xxxxxxxxxx Xxxxx Addition as recorded in Volume 79235, Page 689,
Deed Records of Dallas County, Texas, and being more particularly described as
follows:
BEGINNING at a 1/2 inch iron rod with yellow plastic cap stamped "X. X. Xxxxx
Assoc." found at the Southwest corner of Xxx 0X, Xxxxx X/0000 xx xxx Xxxxxxxxxx
Xxxxx XX Addition as recorded in Volume 86195, Page 0000, Xxxx Xxxxxxx xx Xxxxxx
Xxxxxx, Xxxxx and on the East line of Xxxxxx Road (100 foot right of way);
THENCE North 89 degrees 42 minutes 00 seconds East departing said East line of
Xxxxxx Road and along the South line of Northcreek Phase II Addition, a distance
of 635.28 feet to an "x" in concrete found for corner;
THENCE North 9 degrees 42 minutes 00 seconds East along the West line of a 24
foot access easement a distance of 37.73 feet to an "x" in concrete found for
corner;
THENCE North 00 degrees 18 minutes 00 seconds West, along said West line a
distance of 137.11 feet to an "x" in concrete found for corner;
THENCE North 89 degrees 42 minutes 00 seconds East, departing said West line and
along a Southerly line of said Northcreek Phase II Addition, a distance of 72.28
feet to an "x" in concrete found for corner;
THENCE North 00 degrees 18 minutes 00 seconds West, a distance of 2.10 feet to
an "x" in concrete found for corner;
THENCE North 89 degrees 42 minutes 00 seconds East, a distance of 91.10 feet to
a 1/2 inch iron rod found for a corner;
THENCE South 00 degrees 18 minutes 00 seconds East, a distance of 177.67 feet to
a 1/2 inch iron rod with cap set for corner;
THENCE South 00 degrees 16 minutes 10 seconds East, a distance of 990.60 feet to
a 1/2 inch iron rod with cap set for corner in the Northerly line of XXX
Xxxxxxx, Xxxxxxxxxx Xxxxxxx 000;
THENCE North 52 degrees 21 minutes 35 seconds West, along said Northerly line, a
distance of 181.90 feet to a 1/2 inch iron rod with cap set for an angle point;
THENCE North 51 degrees 15 minutes 20 seconds West, continuing along said
Northerly line, a distance of 448.06 feet to a 1/2 inch iron rod with a yellow
cap stamped "X.X. Xxxxx Assoc." found for corner;
Exhibit B - Page 2 of 3
THENCE North 00 degrees 17 minutes 00 seconds West, departing said Northerly
line, a distance of 526.32 feet to a P.K. nail found for corner;
THENCE South 89 degrees 43 minutes 00 seconds West, a distance of 313.41 feet to
a 1/2 inch iron rod with cap set on said East line of Xxxxxx Road;
THENCE North 00 degrees 17 minutes 00 seconds West, along said East line, a
distance of 71.41 feet to the POINT OF BEGINNING and containing 442,806 square
feet or 10.1654 acres of land, more or less.
Exhibit B - Page 3 of 3
Exhibit C
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RULES AND REGULATIONS
1. Except as specifically provided for in this Lease, no sign, placard,
picture, advertisement, name or notice will be inscribed, displayed or
printed or affixed on or to any part of the outside or inside of the
Building or the Leased Premises without the written consent of Landlord
first having been obtained.
2. Any directory of the Building provided by Landlord will be exclusively for
the display of the name and location of tenants in the Building, and
Landlord reserves the right to exclude any other names therefrom and may
limit the number of listings per tenant. Tenant will pay Landlord's
standard charge for Tenant's listing thereon and for any changes by Tenant.
3. Tenant will not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the Leased Premises. No awnings or other projections will be
attached to the outside walls and roof of the Building without prior
written consent of Landlord. No curtains, blinds, shades or screens will be
attached to or hung in or used in connection with any window or door of the
Leased Premises without the prior consent of Landlord.
4. "Normal Business Hours" for purposes of Landlord's obligation to provide
air conditioning (both heating and cooling) will mean 7:00 a.m. to 6:00
p.m. Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturday except
for the following holidays: New Year's Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving and
Christmas.
5. The Leased Premises will not be used for the manufacturing or storage of
merchandise except as such storage may be incidental to the use of the
Leased Premises for the purposes permitted in this Lease. The Leased
Premises will not be used for lodging or sleeping, or for any illegal
purposes.
6. The sidewalks, halls, passages, exits, entrances, elevators and stairways
will not be obstructed by any of the tenants or be used by them for any
purpose other than for ingress to and egress from their respective leased
premises. The halls, passages, exits, entrances, elevators, stairways,
terraces and roof are not for the use of the general public, and Landlord
will in all cases retain the right to control and prevent access thereto by
all persons whose presence, in the judgment of Landlord, will be
prejudicial to the safety, character, reputation and interest of the
Building and its tenants, provided that nothing herein contained will be
construed to prevent such access to persons with whom Tenant normally deals
in the ordinary course of business, unless such persons are engaged in
illegal activities. No tenant and no employee or invitee of any tenant will
go upon the roof of the Building.
7. Except as expressly permitted in writing by Landlord, no additional locks
or bolts of any kind will be placed upon any of the doors or windows by
Tenant, nor will any changes be made to existing locks or the mechanisms
thereof. Landlord will furnish two (2) keys for each lock it installs on
the Leased Premises without charge to Tenant. Landlord will make a
reasonable charge for any additional keys requested by Tenant, and Tenant
will not duplicate or obtain keys from any other source. Tenant will upon
the termination of the Term of this Lease return to Landlord all keys so
issued. The Tenant will bear the cost for the replacing or changing of any
lock or locks due to any keys issued to Tenant being lost.
8. The toilets and wash basins and other plumbing fixtures will not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags or foreign substances will be thrown therein.
9. No furniture, freight or equipment of any kind will be brought into the
Building without the consent of Landlord, and all moving of the same into
or out of the Building will be done at such time and in such manner as
Landlord will designate. No furniture, packages, supplies, equipment or
merchandise will be received in the Building or carried up or down in the
elevators except between such hours and in such elevators that will be
designated by Landlord. There will not be used in any space or in the
public areas of the Building, either by Tenant or others, any hand trucks
except those equipped with rubber tires and side guards.
10. No tenant will make or permit to be used any unseemly or disturbing noises,
or disturb or interfere with occupants of this or neighboring buildings or
leased premises, whether by the use of any musical instrument, radio,
phonograph, unusual noise or in any other way. No Tenant will throw
anything out of doors or down the passage ways.
Exhibit C - Page 1 of 2
11. Tenant will not use or keep in the Leased Premises or the Building any
kerosene, gasoline, or any inflammable, combustible or explosive fluid,
chemical or substance or use any method of heating or air conditioning
other than those supplied or approved by Landlord.
12. Tenant will see that the windows and doors of the Leased Premises are
closed and securely locked before leaving the Building. No tenant will
permit or suffer any windows to be opened in the Leased Premises while the
air conditioning is in operation except at the direction of Landlord.
Tenant must observe strict care and caution that all water faucets and
other apparatus are entirely shut off before Tenant and Tenant's employees
leave the Building. For any default or carelessness, Tenant will make good
all injuries sustained by all other tenants or occupants of the Building or
Landlord.
13. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who will in any manner do any act in
violation of any of the rules or regulations of the Building.
14. The requirements of Tenant will be attended to only upon application at the
Building's office. Employees of the Landlord will not perform any work or
do anything outside of their regular duties unless under special
instructions from Landlord, and no employees will admit any person (Tenant
or otherwise) to any office without specific instructions from Landlord.
15. No tenant will disturb, solicit, or canvass any occupant of the Building,
nor will Tenant permit or cause others to do so, and Tenant will co-operate
to prevent same by others.
16. No vending machine or machines of any description will be installed,
maintained or operated upon the Leased Premises without the written consent
of Landlord. Tenant will not permit in the Leased Premises any cooking or
the use of apparatus for the preparation of any food or beverages (except
where the Landlord has approved the installation of cooking facilities as
part of the Tenant's leasehold improvements), nor the use of any electrical
apparatus likely to cause an overload of the electrical circuits.
17. All persons entering and leaving the Building at any time other than during
normal business hours will register in the books kept by Landlord at or
near the night entrance or entrances, and Landlord will have the right to
prevent any persons entering or leaving the Building unless provided with a
key to the premises to which such person seeks entrance, and a pass in a
form to be approved by Landlord and provided at Tenant's expense. Any
persons found in the Building at such times without such keys or passes
will be subject to the surveillance of the employees and agents of
Landlord. Landlord will be under no responsibility for failure to enforce
this rule.
18. Tenant will not use any janitor closets or telephone or electrical closets
for anything other than their originally intended purposes. In the event
Tenant purchases privately owned communications equipment for which
telephone closets were not installed in connection with initial occupancy
of Tenant, such equipment will not be installed in existing telephone
closets.
19. Tenant's right to have heavy furnishings, equipment, and files in the
Leased Premises will be limited to items weighing less than the
load-bearing limits of floors within the Leased Premises as established by
Landlord. Heavy items must be placed in locations approved in advance by
Landlord. Upon written demand from Landlord, Tenant will promptly remove
from the Leased Premises any items which, in the judgment of Landlord,
constitute a structural overload on floors within the Leased Premises. If
Landlord approves the presence of a heavy item for which reinforcement of
the floor or other precautionary measures are necessary, Tenant will bear
the entire cost of such reinforcement or other precautionary measures. If
the services of a structural engineer are, in the judgment of Landlord,
necessary to determine the location for and/or precautionary measures to be
taken in connection with any heavy load, Landlord will engage such
engineer, but the fees and expenses of such engineer will be paid by Tenant
upon demand.
20. Tenant will not, without the prior written consent of Landlord, use the
name or any photograph, drawing or other likeness of the Building for any
purpose other than as the address of the business to be conducted by Tenant
in the Leased Premises, nor will Tenant do or permit anything to be done in
connection with Tenant's business or advertising which, in the reasonable
judgment of Landlord, might mislead the public as to any apparent
connection or relationship between Landlord, the Building and Tenant.
21. Tenant, its invitees, and employees shall be allowed to smoke only in those
designated smoking areas outside the Building.
Exhibit C - Page 2 of 2
EXHIBIT D
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PARKING
Parking Spaces. Landlord hereby grants to Tenant and persons designated by
Tenant a license to use up to a total of zero (-0-) parking spaces in the
underground parking lot ("Basement") and one (1) parking spaces in that certain
parking structure constructed adjacent to the Building ("Garage") as well as two
(2) parking spaces on the surface parking lot ("Lot"). The term of such license
will commence on the Commencement Date and will continue until the earlier to
occur of the expiration date under the Lease or termination of the Lease or
Tenant's abandonment of the Leased Premises. During the term of this Lease,
there shall be a charge of $ -0-_ (plus tax) per month per parking space for the
parking spaces designated above, whether or not Tenant utilizes such parking
spaces. No deductions from the monthly charge will be made for days on which the
Lot is not used by Tenant.
Control of Parking. Tenant shall at all times comply with all applicable
ordinances, rules, regulations, codes, laws, statutes and requirements of all
federal, state, county and municipal governmental bodies or their subdivisions
respecting the use of the Garage, Basement, and Lot. Landlord reserves the right
from time to time to adopt, modify and enforce reasonable rules governing the
use of the Garage, Basement, and Lot, including any key-card, sticker or other
identification or entrance system, and hours of operation. Landlord may refuse
to permit any person who violates such rules to park in the Garage, Basement,
and Lot, and any violation of the rules will subject the car to removal from the
Garage, Basement, and Lot.
Liability. The parking spaces hereunder will be provided on an unreserved
"first-come, first-served" basis. Tenant acknowledges that Landlord has or may
arrange for the Garage, Basement, and Lot to be operated by an independent
contractor, not affiliated with Landlord. In such event, Tenant acknowledges
that Landlord will have no liability for claims arising through acts or
omissions of such independent contractor. Landlord will have no liability
whatsoever for any damage to property or any other items located in the Garage,
Basement, and Lot, nor for any personal injuries or death arising out of any use
of the Garage, Basement, and Lot, and in all events, Tenant agrees to look first
to its insurance carrier and to require that Tenant's employees look first to
their respective insurance carriers for payment of any losses sustained in
connection with any use of the Garage, Basement, and Lot. Tenant hereby waives
on behalf of Tenants insurance carriers all rights of subrogation against
Landlord or Landlord's agents. Landlord reserves the right to assign specific
spaces, and to reserve spaces for visitors, small cars, handicapped persons and
for other tenants, guests of tenants or other parties, and Tenant and persons
designated by Tenant hereunder will not park in any such assigned or reserved
spaces. Landlord also reserves the right to close all or any portion of the
Garage, Basement, and Lot in order to make repairs or perform maintenance
services, or to alter, modify, re-stripe or renovate the Garage, Basement, and
Lot, or if required by casualty, strike, condemnation, act of God, governmental
law or requirement or other reason beyond Landlord's reasonable control. If, for
any other reason, Tenant or persons properly designated by Tenant, are denied
access to the Garage, Basement, and Lot, and Tenant or such persons will have
complied with this Exhibit D, Landlord's liability will be limited to parking
charges (excluding tickets for parking violations) incurred by Tenant or such
persons in utilizing alternative parking, which amount Landlord will pay upon
presentation of documentation supporting Tenants claims in connection therewith.
Default. Remedies. If Tenant defaults under this Exhibit D, Landlord will have
the right to remove from the Garage, Basement, and Lot any vehicles hereunder
which are involved or are owned or driven by parties involved in causing such
default, without liability therefor whatsoever. In addition, if Tenant defaults
under this Exhibit D, Landlord will have the right to cancel Tenant's parking
spaces on ten (10) days' written notice. If Tenant defaults with respect to the
same term or condition under this Exhibit D, more than three (3) times during
any twelve (12) month period, the next default of such term or condition, will,
at Landlord's election, constitute an incurable default of the parking
arrangements. Such cancellation right will be cumulative and in addition to any
other rights or remedies available to Landlord at law or equity, or provided
under this Lease.
Exhibit D - Page 1 of 1
EXHIBIT E
---------
WORK LETTER
This Exhibit sets forth the respective obligations of, and the procedures
to be followed by, Landlord and Tenant in the design and construction of those
improvements that will prepare the Leased Premises described in Exhibit B of the
Lease for Tenant's use and occupancy.
1. The Work.
Tenant shall accept the Premises on an "as is" basis.
9. Existing Fixtures. To the extent any fixtures, equipment, including,
without limitation, plumbing fixtures, and/or above Building-standard leasehold
improvements (collectively, the "Existing Improvements") currently existing in
the Leased Premises remain a part of the Leased Premises, Tenant hereby accepts
the Existing Improvements on an "as is" "where is" basis without representation
or warranty, express or implied. Landlord shall have no obligation to repair,
maintain or replace any of the Existing Improvements, same being the sole
responsibility of Tenant.
10. Incorporation Into Lease: Default.
THE PARTIES AGREE THAT THE PROVISIONS OF THIS EXHIBIT ARE HEREBY
INCORPORATED BY THIS REFERENCE INTO THE LEASE FULLY, AS THOUGH SET FORTH
THEREIN. In the event of any express inconsistencies between the Lease and this
Exhibit, the latter will govern and control. Any default by Tenant hereunder
will constitute a default by Tenant under the Lease and Tenant will be subject
to the remedies and other provision
Exhibit E - Page 1 of 1
EXHIBIT ___
FINAL PLAN
Exhibit __ Page 1 of 1
