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EXHIBIT 10.26
OFFICE LEASE
000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
This lease, made as of the ____ day of _________________, 19__ by and
between the Landlord and the Tenant named below.
ARTICLE 1. BASIC LEASE TERMS
For the purpose of this Lease, the following terms shall have the
meanings set forth below:
1.1. Landlord. DORBET, INC.
1.2 Tenant. FWT, INC.
1.3. Building. The Building (including the Leased Premises) known
as 000 Xxxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx, located on that tract of land
(the "Land") described on Exhibit A hereto, together with all other buildings,
structures, fixtures and other improvements located thereon from time to time,
being presently as depicted on the drawing attached hereto as Exhibit B. The
Building and the land are collectively referred to herein as the "Property."
1.4. Leased Premises. That portion of the Building indicated on
Exhibit B, on the floor(s) indicated thereon, together with a common area
percentage factor determined by Landlord, resulting in an aggregate of
approximately 16,000 net rentable square feet. THE LEASE SPACE SHALL BE
MEASURED AT COMPLETION OF TENANT FINISH TO ESTABLISH CONTRACTUAL SQUARE FOOTAGE
AND SAID SQUARE FOOTAGE SHALL BE USED AS THE BASIS FOR MONTHLY RENTAL PAYMENT.
1.5. Lease Term. Five (5) years and no (0) months, beginning on
the Commencement Date.
1.6. Commencement Date. THE COMMENCEMENT DATE SHALL BE THE EARLIER
OF THE DATE TENANT BEGINS OPERATING ITS BUSINESS IN THE BUILDING OR MARCH 1,
1998, UNLESS IMPROVEMENTS TO BE ERECTED PURSUANT TO THE LEASEHOLD IMPROVEMENTS
AGREEMENT (EXHIBIT D) ARE NOT COMPLETE, IN WHICH CASE THE COMMENCEMENT DATE
SHALL BE THE DATE THE IMPROVEMENTS TO BE ERECTED ARE SUBSTANTIALLY COMPLETED.
The Commencement Date shall constitute the commencement of the term of this
Lease for all purposes, whether or not Tenant has actually taken possession.
1.7. Base Rent. Base rent is $(SEE EXHIBIT C) per month.
1.8. Security Deposit. Security deposit is $ (WAIVED).
1.9. Addresses.
Landlord's Address: Tenant's Address: Manager's Address:
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DORBET, INC. FWT, INC. XXXXXXXXX-XXXX MANAGEMENT
0000 XXXXX XXXXX, L.B. 00 000 XXXXXXXXXX, XXXXX 000 0000 X, X-00, XXXXX 000
XXXXXXX, XXXXX 00000 XXXXXXXXX, XXXXX 00000 XXXXXXXXX, XXXXX 00000
Landlord, Tenant and Manager, by written notice to the others may change from
time to time the foregoing addresses, and Landlord, by written notice to
Tenant, may notify Tenant from time to time of the Appointment of a new Manager
and such new Manager's address.
1.10. Permitted Use. GENERAL OFFICE SPACE.
1.11. Common Areas. Such parking areas, streets, driveways, aisles,
sidewalks, curbs, delivery passages, loading areas, lighting facilities, and
all other areas situated on or in the Property which are designated by
Landlord, from time to time, for use by all Tenants of the Property in common.
1.12. Guarantor.
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1.13. Operating Expense Base. (See Addendum A.)
ARTICLE 2. GRANTING CLAUSE AND RENT PROVISIONS
2.1. Grant of Premises. In consideration of the obligation of
Tenant to pay the rent and other charges as provided in this Lease and in
consideration of the other terms and provisions of this Lease, Landlord hereby
leases the Leased Premises to Tenant during the Lease Term, subject to the
terms and provisions of this Lease.
2.2. Base Rent. Tenant agrees to pay monthly as base rent during
the term of this Lease the sum of money set forth in Section 1.7 of this Lease,
which amount shall be payable to Landlord at the address shown in Section 1.9
above or at such other address that Landlord in writing shall notify Tenant.
One (1) monthly installment of rent shall be due and payable on the date of
execution of this Lease by Tenant for the first month's rent and a like monthly
installment shall be due and payable on or before the first day of each
calendar month succeeding the Commencement Date during the term of this Lease,
without demand, offset or reduction; provided, if the Commencement Date should
be a date other than the first day of a calendar month, the monthly rental set
forth above shall be prorated to the end of that calendar month, and all
succeeding installments of rent shall be payable on or before the first day of
each succeeding calendar month during the term of this Lease. Tenant shall pay,
as additional rent, all other sums due under this Lease.
2.3. Operating Expenses. If Landlord's Operating Expenses per net
rentable square foot for the Property, in any calendar year during the Term of
this Lease exceed the Operating Expense Base, Tenant agrees to pay as
additional rent Tenant's share of such excess operating expenses. As used
herein, the term "Tenant's share of such excess Operating Expenses" means the
amount by which Landlord's Operating Expenses per net rentable square foot
exceed the Operating Expense Base, multiplied by the net rentable square feet
comprising the Leased Premises. Landlord may invoice Tenant monthly for
Tenant's share of the estimated operating expenses for each calendar year,
which amount shall be adjusted each year based upon anticipated operating
expenses. Within one hundred twenty (120) days following the close of each
calendar year, Landlord shall provide Tenant an accounting showing in
reasonable detail all computations of additional rent due under this Section.
If the accounting shows that the total of the monthly payments made by Tenant
exceeds the amount of additional rent due by Tenant under this Section, the
accounting shall be accompanied by a refund. If the accounting shows that the
total of the monthly payments made by Tenant is less than the amount of
additional rent due by Tenant under this Section, the accounting shall be
accompanied by an invoice for the additional rent. Notwithstanding any other
provisions in this Lease, during the year in which the Lease terminates,
Landlord, within one (1) year following the termination date, shall have the
option to invoice Tenant for Tenant's share of the excess operating expenses
based upon the previous year's operating expenses. If this Lease shall
terminate on a day other than the last day of a calendar year, the amount of
any additional rent payable by Tenant applicable to the year in which such
termination shall occur shall be prorated on the ratio that the number of days
from the commencement of the calendar year to and including the termination
date bears to 365. Tenant shall have the right, at its own expense and within
a reasonable time, to audit during Landlord's regular business hours Landlord's
books relevant to the additional rent payable under this Section.
Notwithstanding anything to the contrary contained in this Lease, if the
Building is not fully occupied during any calendar year, Tenant's additional
rent under this Section within thirty (30) days following receipt of the
Invoice or accounting showing additional rent due.
2.4. Definition of Operating Expenses. The term "operating
expenses" includes all expenses by Landlord with respect to the maintenance,
servicing, repairing and operation of the Property, including but not limited
to the following: maintenance, repair and replacement costs; electricity,
fuel, water, sewer, gas and other utility charges; security, window washing and
janitorial services; trash and snow and ice removal; landscaping and pest
control; management fees payable to third parties, wages and benefits payable
to employees of Landlord whose duties are directly connected with the operation
and maintenance of the Property; all services, supplies, repairs, replacement
or other expenses for maintaining and operating the Property including parking
and common area; the cost, including interest, amortized over its useful life,
of any capital improvement made to the Property by Landlord after the date of
this lease which is required under any governmental law or regulation that was
not applicable to the Property at the time it was constructed; the cost,
including interest, amortized over its useful life, of installation of any
device or other equipment which improves the operating efficiency of any system
within
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the Leased Premises and thereby reduces operating expenses; all other expenses
which generally would be regarded as operating and maintenance expenses which
would reasonably be amortized over a period not to exceed five (5) years; all
real property taxes and installments of special assessments, including dues and
assessments by means of deed restrictions and/or owner's associations which
accrue against the Property during the term of this Lease; governmental levies
or charges of any kind or nature assessed or imposed on the Property, whether
by state, county, city or any political subdivision thereof; and all insurance
premiums Landlord is required to pay or deems necessary to pay, including
public liability insurance, with respect to the Property. The term operating
expenses does not include the following: expenses for repairs, restoration or
other work occasioned by fire, wind, the elements or other casualty that are
covered by insurance; income and franchise taxes of Landlord; expenses incurred
in leasing to or procuring of tenants, leasing commissions, advertising
expenses and expenses for the renovating of space for new tenants; interest or
principal payments on any mortgage or other indebtedness of Landlord;
compensation paid to any employee of Landlord above the grade of property
manager; any depreciation allowance or expense; or operating expenses which are
the responsibility of tenant.
Notwithstanding anything to the contrary contained in this Lease,
Operating Expenses shall not include the following:
(1) Cost of repairs, replacements or other work
occasioned by fire, windstorm or other casualty, or the exercise of
governmental authorities of the right of eminent domain, to the extent
reimbursed by insurance or condemnation proceeds.
(2) Leasing commissions, attorney's fees, costs,
disbursements and other expenses incurred by Landlord or its agents in
connection with negotiations for leases with tenants, prospective
tenants or other occupants of the Building, and similar costs incurred
in connection with disputes with and/or enforcement of any leases with
tenants, prospective tenants or other occupants of the Building.
(3) "Tenant allowances," "tenant concessions,"
workletters, and other costs or expenses (including but not limited to
permit, license and inspection fees) incurred in completing,
fixturing, furnishing, renovating or otherwise improving, decorating
or redecorating space leased to tenants or other occupants of the
Building, or vacant, leasable space in the Building (in either
instance, excepting Common Areas), including space planning/interior
design fees for same.
(4) Depreciation and other "non-cash" expense items or
amortization.
(5) Costs of a capital nature, including, but not limited
to, capital additions, capital improvements, capital alterations,
capital replacements, capital equipment and capital tools, and/or
capital redesign, all in accordance with generally accepted accounting
principals, consistently applied.
(6) Costs in connection with services (including but not
limited to electricity), items or other benefits of a type which are
not standard for the Building and which are not available to Tenant
without specific charge therefor, but which are provided to another
tenant or occupant of the Building, whether or not such other tenant
or occupant is specifically charged therefor by Landlord.
(7) Services, items and benefits for which Tenant or any
other Tenant or occupant of the Building specifically reimburses
Landlord (other than through its percentage share of Operating
Expenses) or for which Tenant or any other tenant or occupant of the
Building wholly pays third persons.
(8) Penalties or interest charged for (i) failure to pay
equipment lease payments, ad valorem taxes and/or other special
assessments before they became delinquent or (ii) failure to promptly
comply with laws related to the Building, but in either case, only if
said penalties or interest were not caused by Tenant.
(9) Costs directly resulting from the negligence or
willful misconduct of Landlord, its employees, agents and/or
contractors.
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(10) Payments in respect to overhead and/or profit to any
Affiliate (hereinafter defined) of Landlord, as a result of a
non-competitive selection process for services on or to the Building
and/or the Property, or for goods, supplies or other materials, to the
extent that the costs of such services, goods, supplies and/or
materials exceed the cost that would have been paid had the services,
goods, supplies or materials been provided by parties unaffiliated
with Landlord, of at least equal skill, competence and experience.
(11) Payments of principal, finance charges or interest on
debt or amortization on any mortgage, deed of trust or other debt, and
rental payments (or increases in same) under any ground or underlying
lease or leases (except to the extent the same may be made to pay or
reimburse real estate taxes or insurance premiums).
(12) Real estate taxes allocable to the leasehold
improvements of other tenants or occupants in the Building, to the
extent separately assessed by the taxing authorities.
(13) Costs associated with the operation of the entity
which constitutes Landlord, as distinguished from Landlord's operation
of the Building, such as general overhead and general administrative
expenses (individual, partnership or corporate, as the case may be),
which costs would not be chargeable to operating expenses of the
Building in accordance with generally accepted accounting principles,
consistently applied.
(14) Compensation paid to clerks, attendants or other
persons in commercial concessions (such as a snack bar, restaurant or
newstand), if any, operated by Landlord or any subsidiary or Affiliate
of Landlord.
(15) Rentals and other related expenses, if any, incurred
in leasing air conditioning systems, elevators, or other equipment
ordinarily considered to be of a capital nature, except equipment
which is used in providing janitorial services and which is not
affixed to the Building.
(16) Costs incurred in installing, operating, maintaining
and owning any specialty items or services not normally installed,
operated and maintained in buildings comparable to the Building and
not necessary for Landlord's operation, repair and maintenance of, and
the providing of required services for, the Building and/or any
associated parking facilities, such as for example, an observatory,
broadcasting facilities (other than the Building's music system and
life support and security systems), luncheon club, athletic or
recreational club or helipad.
(17) Advertising and promotional expenses.
(18) Costs in connection with the ownership, operation and
maintenance of any off-site garage facilities associated with the
Building, and costs in connection with the operation and maintenance
of any parking facilities in the basement of the Building, in both
cases only to the extent offset by operating revenues from such
facilities.
(19) Costs of expenses for sculpture, painting or other
works of art, including costs incurred with respect to the purchase,
ownership, leasing, showing and promotion of same, but not including
the costs of cleaning same.
(20) Costs for which Landlord is compensated through or
reimbursed by insurance.
(21) Costs of correcting or repairing defects in the
Building and/or equipment or the replacement of defective equipment,
to the extent such costs are covered by warranties of manufacturers,
suppliers or contractors, or are otherwise borne by parties other than
Landlord.
(22) Contributions to reserve accounts designed to pay for
Operating Expenses attributable to periods subsequent to the calendar
year for which Operating Expenses are being determined.
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(23) Contributions to charitable organizations.
(24) Costs incurred in removing the property of former
tenants and/or occupants of the Building.
(25) Consulting costs and expenses incurred by Landlord,
except to the extent same relate to the improved management or
operation of the Building.
(26) The costs of any "tap fees" or one-time lump sum
sewer or water connection fees for the Building.
(27) Costs or fees relating to the defense of Landlord's
title or interest in the Building and/or Property, or any part
thereof.
(28) Compensation in the form of wages, salaries and such
other compensation and benefits, as well as any adjustments thereto,
for all executive employees and personnel of Landlord above the level
of on- premises manager of the Building.
(29) An equitable allocation of the wages, salaries and
other compensation and benefits of Landlord's employees and personnel
who work on other projects, including, without limitation, those being
periodically developed, managed and/or operated by Landlord or its
Affiliates, in addition to the Building and/or the Land, based on the
extent to which such parties are performing services other than for
the Land.
(30) Federal, state, county or municipal taxes on income,
death taxes, excess profit taxes, franchise taxes, or any taxes
imposed or measured on or by the income, gross receipts or revenue of
Landlord from the operation of the Building or imposed in connection
with or as a result of any change in the ownership of the Building
and/or Land, except to the extent any of the foregoing are due in lieu
of ad valorem or real estate taxes or assessments.
(31) Taxes on Tenant's personal property and on the value
of the leasehold improvements in the Premises to the extent that the
same exceed "building standard" (as to quality but not quantity),
provided the amount of tax attributable thereto is expressly stated
and allocated by the respective taxing authority in its tax statement
to Landlord and is paid by Tenant.
(32) Any other expense which, under generally accepted
accounting principles, consistently applied, would not be considered
to be normal maintenance or operating expenses of the Property.
Whenever the term "Building" is used in this Section it shall be read
to mean "Building and any and all related parking facilities and garages."
The term "Affiliate" shall mean and refer to any person or entity
controlling, controlled by, or under common control with another such person or
entity. "Control," as used herein, shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such controlled person or entity; the ownership, directly or
indirectly, of at least fifty-one percent (51%) of the voting securities of, or
possession of the right to vote, in the ordinary direction of its affairs, at
least fifty-one percent (51%) of the voting interest in, any person or entity
shall be presumed to constitute such control.
Landlord shall maintain complete and accurate records of all costs,
expenses and disbursements incurred by Landlord, its employees, agents and/or
contractors, with respect to Operating Expenses, and Tenant, at its sole costs
and expense, and/or its authorized representatives, shall have the right to
inspect and/or audit Landlord's books and records relating to the calculation
of Operating Expenses, under this Lease for the immediately prior year for
which additional rental payments shall become due. Any such inspection and/or
audit is to be conducted at Landlord's office during normal business hours.
Landlord agrees to reimburse Tenant for the reasonable cost of such inspection
and/or audit conducted by or for it in the event said inspection and/or audit
prove that Tenant's proportionate share of the
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Operating Expenses for the period of time covered by such inspection and/or
audit shall have been overstated by ten percent (10%) or more.
2.5. Late Payment Charge. Other remedies for nonpayment of rent
notwithstanding, if any monthly rental payment is not received by Landlord on
or before the fifth (5th) day of the month for which the rent is due, or if any
other payment hereunder due Landlord by tenant is not received by Landlord on
or before the fifth (5th) day of the month next following the month in which
tenant was invoiced, a late payment charge of ten percent (10%) of such past
due amount shall become due and payable in addition to such amounts owed under
this Lease.
2.6. Increase in Insurance Premiums. If an increase in any
insurance premiums paid by Landlord for the Property is caused by tenant's use
of the Leased Premises in a manner other than as set forth in Section 1.10, or
if tenant vacated the Leased Premises and caused an increase in such premiums,
then tenant shall pay as additional rent the amount of such increase to
Landlord. Tenant agrees to pay any amount due under this Section within ten
(10) days following receipt of the invoice showing the additional rent due.
2.7. Security Deposit. The security deposit set forth in Section
1.8 (if any) shall be held by Landlord for the performance of Tenant's
covenants and obligations under this Lease. It being expressly understood that
the security deposit shall not be considered an advance payment of rental or a
measure of Landlord's damage in case of default hereunder by Tenant, and shall
be held by Landlord without payment of any interest thereon. Upon the
occurrence of any event of default by Tenant under this Lease, Landlord may,
from time to time, without prejudice to any other remedy, use the security
deposit to the extent necessary to make good any arrears of rent, or to repair
any damage or injury, or pay any expense or liability incurred by Landlord as a
result of the event of default or breach of covenant, and any remaining balance
of the security deposit shall be returned by Landlord to Tenant upon the
termination of this Lease. If any portion of the security deposit is so used
or applied, Tenant shall upon ten (10) days' written notice from Landlord,
deposit with Landlord by cash or cashier's check an amount sufficient to
restore the security deposit to its original amount. The Security Deposit may
be assigned and transferred by Landlord to the successor in interest of
Landlord and, upon acknowledgement by such successor of receipt of such
security and its assumption of the obligation to account to Tenant for such
security in accordance with the terms of this Lease, Landlord shall thereby be
discharged of any further obligation relating thereto.
2.8. Holding Over. If tenant does not vacate the Leased Premises
upon the expiration or earlier termination of this Lease, tenant shall be a
tenant at sufferance for the holdover period and all of the terms and
provisions of this Lease shall be applicable during that period, except that
Tenant shall pay Landlord (in addition to additional rent payable under Section
2.3 and any other sums payable under this Lease) as base rental for the period
of such holdover an amount equal to two times the base rent which would have
been payable by Tenant had the holdover period been a part of the original term
of this Lease (without waiver of Landlord's right to recover damages as
permitted by law). Upon the expiration or earlier termination of this lease,
tenant agrees to vacate and deliver the Leased Premises, and all keys thereto,
to Landlord upon delivery to Tenant of notice from Landlord to vacate. The
rental payable during the holdover period shall be payable to Landlord on
demand. No holding over by tenant, whether with or without the consent of
Landlord, shall operate to extend the term of this lease. Tenant shall
indemnify Landlord against all claims made by any tenant or prospective tenant
against Landlord resulting from delay by Landlord in delivering possession of
the Leased Premises to such other tenant or prospective tenant.
ARTICLE 3. OCCUPANCY, USE AND OPERATIONS
3.1. Use. Tenant warrants and represents to Landlord that the
Leased Premises shall be used and occupied only for the purpose as set forth in
Section 1.10. Tenant shall occupy the Leased Premises, conduct its business
and control its agents, employees, invitees and visitors in such a manner as is
lawful, reputable and will not create a nuisance to other tenants in the
Property. Tenant shall not solicit business, distribute handbills or display
merchandise within the Common Areas, or take any action which would interfere
with the rights of other persons to use the Common Areas. Tenant shall not
permit any operation which emits any odor or matter which intrudes into other
portions of the Property, use any apparatus or machine which makes undue noise
or causes vibration in any portion of the Property or otherwise interfere with,
annoy or disturb any other tenant in its normal business operations or Landlord
in its management of
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the Property. Tenant shall neither permit any waste on the Leased Premises nor
allow the Leased Premises to be used in any way which would, in the reasonable
opinion of Landlord, be extra hazardous on account of fire or which would in
any way increase or render void the fire insurance on the Property.
3.2. Signs. No signs of any type or description shall be erected,
placed or painted in or about the Leased Premises except those signs submitted
to Landlord in writing and approved by Landlord in writing, and which signs are
in conformity with Landlord's sign criteria established for the Property.
Landlord reserves the right to remove, at Tenant's expense, all signs other
than signs approved in writing by Landlord under this Section 3.2 without
notice to Tenant and without liability to Tenant for any damages sustained by
Tenant as a result thereof.
3.3. Compliance with Laws, Rules and Regulations. Tenant, at
Tenant's sole cost and expense, shall not violate any laws, ordinances, orders,
rules and regulations of state, federal, municipal or other agencies or bodies
having jurisdiction over Tenant's use of the Leased Premises. Tenant shall
procure at its own expense all permits and licenses required for the
transaction of its business in the Leased Premises. Tenant will comply with
the rules and regulations of the Property adopted by Landlord which are set
forth on a schedule attached to this Lease. If Tenant is not complying with
such rules and regulations, or if Tenant is in any way not complying with this
Article 3, then, notwithstanding anything to the contrary contained herein,
Landlord may, at its election, enter the Leased Premises without liability
therefor and fulfill Tenant's obligations. Tenant shall reimburse Landlord on
demand for any expenses which Landlord may incur in effecting compliance with
Tenant's obligations and agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action. Landlord shall have the right at
all times to change and amend the rules and regulations in any reasonable
manner as it may deem advisable for the safety, care, cleanliness, preservation
of good order and operation or use of the Property or the Leased Premises. All
changes and amendments to the rules and regulations of the Property will be
forwarded by Landlord to Tenant in writing and shall thereafter be carried out
and observed by Tenant.
3.4. Warranty of Possession. Landlord and Tenant each warrants
that it has the right and authority to execute this Lease, and Landlord
warrants to Tenant, that upon payment of the required rights by Tenant and
subject to the terms, conditions, covenants and agreements contained in this
Lease, Tenant shall have possession of the Leased Premises during the full term
of this lease, as well as any extension or renewal thereof, without hindrance
from Landlord or any person or persons lawfully claiming the Leased Premises
by, through or under Landlord (but not otherwise); subject, however, to all
mortgages, deeds of trust, leases and agreements to which this Lease is
subordinate and to all laws, ordinances, orders, rules and regulations of any
governmental authority. Landlord shall not be responsible for the acts or
omissions of any other lessee or third party that may interfere with Tenant's
use and enjoyment of the Leased Premises.
3.5. Inspection. Landlord or its authorized agents shall at any
and all reasonable times, upon reasonable prior notice, have the right to enter
the Leased Premises to inspect the same, to supply janitorial service or any
other service to be provided by Landlord, to show the Leased Premises to
prospective mortgagees, purchasers or prospective tenants, and to alter,
improve or repair the Leased Premises or any other portion of the Property.
Tenant hereby waives any claim for abatement or reduction of rent or for any
damages for injury or inconvenience to or interference with Tenant's business,
for any loss of occupancy or use of the Leased Premises, and for any other loss
occasioned thereby. Landlord shall at all times have and retain a key with
which to unlock all of the doors in, upon and about the Leased Premises.
Tenant shall not change Landlord's lock system or in any other manner prohibit
Landlord from entering the Leased Premises. Landlord shall have the right at
all times to enter the Leased Premises by any means in the event of an
emergency without liability therefor.
3.6. Personal Property Taxes. Tenant shall be liable for all taxes
levied against leasehold improvements, merchandise, personal property, trade
fixtures and all other taxable property located in the Leased Premises. If any
such taxes for which tenant is liable are levied against Landlord or Landlord's
property and if Landlord elects to pay the same or if the assessed value of
Landlord's property is increased by inclusion of personal property and trade
fixtures placed by Tenant in the 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 the tenant is primarily liable pursuant to the
terms of this Section. Tenant shall pay when due any and all taxes related to
Tenant's use and operation of its business in the Leased Premises.
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ARTICLE 4. UTILITIES AND SERVICE
4.1. Building Services. Landlord shall provide water and
electricity for Tenant during the term of this lease. Tenant shall pay all
telephone charges. Landlord shall furnish Tenant water at those points of
supply provided for general use of other tenants in the Building, and central
heating and air conditioning in season (on business days during regular hours,
and at temperatures and in amounts as are considered by Landlord to be standard
or in compliance with any governmental regulations, such service at times other
than regular hours to be furnished upon not less than twenty-four (24) hours
advance notice from Tenant, who shall bear the entire cost thereof at the rate
established by Landlord). Landlord shall also provide routine maintenance,
painting and electric lighting service for all public areas and special service
areas of the Property in the manner and to the extent deemed by Landlord to be
standard. Landlord may, in its sole discretion, provide additional services
not enumerated. Failure by Landlord to any extent to provide these defined
services or any other services not enumerated, or any cessation thereof, shall
not render Landlord liable in any respect for damages to either person or
property, be construed as an eviction of Tenant, work an abatement of rent or
relieve Tenant from fulfillment of any covenant in this Lease. If any of the
equipment or machinery useful or necessary for provision of utility services,
and for which Landlord is responsible, breaks down, or for any cause ceases to
function properly, Landlord shall use reasonable diligence to repair the same
promptly, but Tenant shall have no claim for rebate of rent or damages on
account of any interruption in service occasioned from the repairs. Landlord
reserves the right from time to time to make changes in the utilities and
services provided by Landlord to the Property.
4.2. Theft or Burglary. Landlord shall not be liable to Tenant for
losses to Tenant's property or personal injury caused by criminal acts or entry
by unauthorized persons into the Leased Premises or the Property.
4.3. Janitorial Service. Landlord shall furnish janitorial
services to the Leased Premises and public areas of the Building five (5) times
per week during the term of this Lease, excluding holidays. Landlord shall not
provide janitorial service to kitchens or storage areas included in the Leased
Premises.
4.4. Excessive Utility Consumption. Tenant shall pay all utility
costs occasioned by electrodata processing machines, telephone equipment,
computers and other equipment of high electrical consumption as determined by
Landlord, including (without limitation) the cost of installing, servicing and
maintaining any special or additional inside or outside wiring or lines, meters
or submeters, transformers, poles, air conditioning costs, or the cost of any
other equipment necessary to increase the amount or type of electricity or
power available to the Leased Premises.
4.5. Window Coverings. Landlord may (but shall not be obligated
to) furnish and install window coverings on all exterior windows to maintain a
uniform exterior appearance. Tenant shall not remove or replace these window
coverings or install any other window covering which would affect the exterior
appearance of the Building. Tenant may install lined or unlined over draperies
on the interior sides of the Landlord-furnished window coverings for interior
appearance or to reduce light transmission, provided such over draperies do not
(in Landlord's determination) affect the exterior appearance of the Building or
affect the operation of the Building's heating, ventilating and air
conditioning systems.
4.6. Charge for Services. All costs of Landlord for providing the
services set forth in Article 4 (except those charges paid by Tenant pursuant
to Section 4.4) shall be subject to the additional rent provisions in Section
2.3 and shall be payable as therein provided.
ARTICLE 5. REPAIRS AND MAINTENANCE
5.1. Landlord Repairs. Landlord shall not be required to make any
improvements, replacements, or repairs of any kind or character to the Leased
Premises during the term of this Lease except as are set forth in this Section.
Landlord shall maintain only the roof, foundation, parking and Common Areas,
the structural soundness of the exterior walls, doors, corridors, windows and
other structures or equipment serving the Leased Premises. Landlord's cost of
maintaining and repairing the items set forth in this Section are subject to
the additional rent provisions in Section 2.3. Landlord shall not be liable to
Tenant, except as expressly provided in this Lease, for any damage or
inconvenience, and Tenant shall not be entitled to any damages not
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to any abatement or reduction of rent by reason of any repairs, alterations or
additions made by Landlord under this Lease.
5.2. Tenant Repairs. Tenant, at its own cost and expenses, shall
maintain the Leased Premises in a first-class condition (except for those
items that are the responsibility of Landlord under Section 5.1) and shall
repair or replace any damage or injury to all or any part of the Leased
Premises and/or the Property, caused by any act or omission of Tenant or
Tenant's agents, employees, invitees, licensees or visitors.
5.3. Request for Repairs. All requests for repairs or maintenance
that are the responsibility of Landlord pursuant to any provision of this Lease
must be made in writing to Landlord at the address in Section 1.9.
5.4. Tenant Damages. Tenant shall not allow any damage to be
commuted on any portion of the Leased Premises or Property, and at the
termination of this Lease, by lapse of time or otherwise, tenant shall deliver
the Leased Premises to Landlord in as good condition as existed at the
Commencement Date of this Lease, ordinary wear and tear and damage by fire or
other casualty excepted. The cost and expense of any repairs necessary to
restore the condition of the Leased Premises shall be borne by Tenant.
ARTICLE 6. ALTERATIONS AND IMPROVEMENTS
6.1. Construction. If any construction of tenant improvements is
necessary for the initial occupancy of the Leased Premises, such construction
shall be accomplished and the cost of such construction shall be borne by
Landlord and/or Tenant in accordance with a separate "Leasehold Improvements
Agreement" (herein so called Exhibit D) between Landlord and Tenant. Except as
expressly provided in this Lease or in the Leasehold Improvements Agreement (if
any), Tenant acknowledges and agrees that Landlord has not undertaken to
perform any modification, alteration or improvements to the Leased Premises,
and Tenant further waives any defects in the Leased Premises and acknowledges
and accepts (1) the Leased Premises as suitable for the purpose for which they
are leased, and (2) the Property and every part and appurtenance thereof as
being in good and satisfactory condition. Upon the request of Landlord, Tenant
shall deliver to Landlord a completed acceptance of premises memorandum in
Landlord's standard form. (See Leasehold Improvements Agreement, Exhibit D.
Tenant will provide construction per attached Exhibit D.)
6.2. Tenant Improvements. Tenant shall not make or allow to be
made any alterations, physical additions or improvements in or to the Leased
Premises without first obtaining the written consent of Landlord, which consent
may in the sole and absolute discretion of Landlord be denied. Any
alterations, physical additions or improvements to the Leased Premises made by
or installed by either party hereto shall remain upon and be surrendered with
the Leased Premises and become the property of Landlord upon the expiration or
earlier termination of this Lease without credit to Tenant; provided, however,
Landlord, at its option, may require Tenant to remove any physical improvements
or additions and/or repair any alterations in order to restore the Leased
Premises to the condition existing at the time Tenant took possession, all
costs of removal and/or alterations to be borne by Tenant. This clause shall
not apply to moveable equipment, furniture or moveable trade fixtures owned by
Tenant, which may be removed by Tenant at the end of the term of this lease if
Tenant is not then in default and if such equipment and furniture are not then
subject to any other rights, liens and interests of Landlord. Tenant shall
have no authority or power, express or implied, to create or cause any
mechanic's or materialmen's lien, charge or encumbrance of any kind against the
Leased Premises, the Property or any portion thereof. Tenant shall promptly
cause any such liens that have arisen by reason or any work claimed to have
been undertaken by or through Tenant to be released by payment, bonding or
otherwise within thirty (30) days after request by Landlord, and shall
indemnify Landlord against losses arising out of any such claim (including,
without limitation, legal fees and court costs).
6.3. Common and Service Area Alterations. Landlord shall have the
right to decorate and to make repairs, alterations, additions, changes or
improvements, whether structural or otherwise, in, about or on the Property or
any part thereof, and to change, alter, relocate, remove or replace service
areas and/or Common Areas, to place, inspect, repair and replace in the Leased
Premises (below floors, above ceilings or next to columns) utility lines, pipes
and the like to serve other areas of the Property outside the Leased Premises
and to otherwise alter or modify
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the Property, and for such purposes to enter upon the Leased Premises and,
during the continuance of any such work, to take such measures for safety or
for the expediting of such work as may be required, in Landlord's judgment, all
without affecting any of Tenant's obligations hereunder.
ARTICLE 7. CASUALTY AND INSURANCE
7.1. Substantial Destruction. If in the determination of Landlord
the Leased Premises should be totally destroyed by fire or other casualty, or
if in the determination of Landlord the Leased Premises should be damaged so
that rebuilding cannot reasonably be completed substantially within one hundred
and eighty (180) working days after Landlord's receipt of written notification
by Tenant of the destruction, or if the Leased Premises are damaged or
destroyed by casualty not covered by the standard broad form of fire and
extended coverage insurance then in common use in the State of Texas, then, at
Landlord's sole option, this Lease may be terminated and, in such event, the
rent shall be abated for the unexpired portion of the Lease, effective as of
the date of the damage.
7.2. Partial Destruction. If following damage or destruction to
the Leased Premises by fire or other casualty, this Lease is not terminated
pursuant to Section 7.1 hereof, Landlord shall proceed, to the extent of
insurance proceeds actually received by Landlord after the exercise by any
mortgage of the Property of an option to apply proceeds against Landlord's debt
to such mortgagee, with reasonable diligence to rebuild or repair the building
or other improvements to substantially the same conditions in which they
existed prior to the damage. If the Leased Premises are to be rebuilt or
repaired and are untenantable in whole or in part following the damage, and the
damage or destruction was not caused or contributed to by act or negligence of
Tenant, its agents, employees, invitees or those for whom Tenant is
responsible, the Base Rent payable under this Lease during the period for which
the Leased Premises are untenantable shall be reduced to an amount determined
by multiplying the Base Rent that would otherwise be payable but for this
provision by the ratio that the portion of the Leased Premises not rendered
untenantable bears to the total net rentable area of the Leased Premises prior
to the casualty. Landlord's obligation to rebuild or restore under this
Section shall be limited to restoring the Leased Premises to substantially the
condition in which the same existed prior to the casualty, exclusive of
improvements for which Tenant is responsible under the terms of the Leasehold
Improvements Agreement, if any, described above in Section 6.1, and Tenant
shall, promptly after the completion of such work by Landlord, proceed with
reasonable diligence and at Tenant's sole cost and expense to restore those
improvements for which Tenant is responsible under the terms of such Leasehold
Improvements Agreement to substantially the condition in which the same existed
prior to the casualty and to otherwise make the Leased Premises suitable for
Tenant's use. If Landlord fails to substantially complete the necessary
repairs or rebuilding within one hundred and eighty (180) working days from the
date of Landlord's receipt of written notification by Tenant of the
destruction, Tenant may at its option terminate this Lease by delivering
written notice of termination to Landlord, whereupon all rights and obligations
under this Lease shall cease to exist.
7.3. Property Insurance. Landlord shall at all times during the
term of this Lease insure the Property against all risk of direct physical loss
in an amount and with such deductibles as Landlord considers appropriate;
provided, Landlord shall not be obligated in any way or manner to insure any
personal property (including, but not limited to, any furniture, machinery,
goods or supplies) of Tenant upon or within the Leased Premises, any fixtures
installed or paid for by Tenant upon or within the Leased Premises, or any
improvements which Tenant may construct on the Leased Premises. Tenant shall
have no right in or claim to the proceeds of any policy of insurance maintained
by Landlord even if the cost of such insurance is borne by Tenant as set forth
in Article 2. Landlord shall have the right to self-insure against the above
described risk. Tenant at all times during the term of this Lease shall, at
its own expense, keep in full force and effect insurance against fire and such
other risks as are from time to time included in standard all-risk insurance
(including coverage against vandalism and malicious mischief) for the full
insurance value of Tenant's trade fixtures, furniture, supplies and all items
of personal property of Tenant located on or within the Leased Premises.
7.4. Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the Leased Premises, improvements to the
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Property, or personal property within the Property, by reason of fire or the
elements, regardless of cause or origin, including negligence of Landlord or
Tenant and their agents, officers and employees. Landlord and Tenant agree
immediately to give their respective insurance companies which have issued
policies of insurance covering all risk of direct physical loss, written notice
of the terms of the mutual waivers contained in this Section, and to have the
insurance policies properly endorsed, if necessary, to prevent the invalidation
of the insurance coverage by reason of the mutual waivers.
7.5. Hold Harmless. Landlord shall not be liable to Tenant or to
Tenant's customers, employees, agents, guests or invitees, or to any other
person whomever, for any injury to persons or damage to property on or about
the Leased Premises or the Common Area (except where caused by the willful
misconduct or negligence of Landlord, its employees, or contractors),
including, but not limited to, consequential damage, (1) caused by any act or
omission of Tenant, its employees, subtenants, licensees and concessionaires or
of any other person entering the Property of the Leased Premises by express or
implied invitation of Tenant, or (2) arising out of the use of the Leased
Premises or the Property by Tenant, its employees, subtenants, licensees,
concessionaires or invitees, or (3) arising out of any breach or default by
Tenant in the performance of its obligations hereunder, or (4) caused by the
improvements located in the Leased Premises becoming out of repair or by defect
in or failure of equipment, pipes, or wiring, or by broken glass, or by the
backing up of drains, or by gas, water, steam, electricity or oil leaking,
escaping or flowing into the Leased Premises or Property, or (5) arising out of
the failure or cessation of any service provided by Landlord (including
security service and devices). Nor shall Landlord be liable to Tenant for any
loss or damage that may be occasioned by or through the acts or omissions of
other tenants of the Property or of any other persons whatsoever, excepting
only duly authorized employees and agents of Landlord acting within the scope
of their authority. Further, Tenant specifically agrees to be responsible for
and indemnify and hold Landlord harmless from any and all damages or expenses
of whatever kind arising out of or caused by a burglary, theft, vandalism,
malicious, mischief or other illegal acts performed in, at or from the Leased
Premises, except performed by Landlord, its employees, agents or contractors.
7.6. Liability Insurance. Tenant at all times during the Lease
term shall, at its own expense, keep in full force and effect comprehensive
general liability insurance with "personal injury" coverage and contractual
liability coverage, with minimum limits of $1,000,000.00 on account of bodily
injuries to, or death of, one or more than one person as the result of any one
accident or occurrence and $500,000.00 on account of damage to property.
Tenant shall also carry insurance against fire and such other risks as are from
time to time included in Standard All-Risk Insurance (including coverage
against vandalism and malicious mischief) for the full insurable value of
Tenant's merchandise, trade fixtures, furnishings, wall covering, carpeting,
drapes, equipment and all items of personal property of Tenant located on or in
the Leased Premises. Landlord shall be a named additional insured on said
policy. All insurance policies or duly executed certificates for the same
required to be carried by Tenant under this Lease, together with satisfactory
evidence of the payment of the premium thereof, shall be deposited with
Landlord on the date Tenant first occupied the Leased Premises and upon
renewals of such policies not less than fifteen (15) days prior to the
expiration of the term of such coverage. All insurance required to be carried
by Tenant under this Lease shall be in form and content, and written by
insurers acceptable to Landlord, in its sole discretion. If Tenant shall fail
to comply with any of the requirements contained relating to insurance,
Landlord may obtain such insurance and Tenant shall pay to Landlord on demand
as additional rent hereunder, the premium cost thereof.
7.7. Boiler Insurance. At all times when a "boiler", as that term
is defined for the purposes of boiler insurance, is located within the Leased
Premises, Tenant shall carry, at its expense, boiler insurance with policy
limits of not less than One Hundred Thousand Dollars ($100,000.00) insuring
both Landlord and Tenant against loss or liability caused by the operation or
malfunction of such boiler.
ARTICLE 8. CONDEMNATION
8.1. Substantial Taking. If in the determination of Landlord all
or a substantial part of the Leased Premises are taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain or by purchase in lieu thereof, and in the
determination of Landlord the taking would prevent or materially interfere with
the use of the
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Leased Premises for the purpose for which it is then being used, this Lease
shall, at the option of either Landlord or Tenant, terminate and the rent shall
be abated during the unexpired portion of this Lease effective on the date
physical possession is taken by the condemning authority.
8.2. Partial Taking. If in the reasonable determination of
Landlord a portion of the Leased Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain or by purchase in lieu thereof, and this Lease is not
terminated as provided in Section 8.1 above, Landlord shall restore and
reconstruct, to the extent of condemnation proceeds (excluding any proceeds for
Land) actually received after the exercise by any mortgagee of the Property of
an option to apply such proceeds against Landlord's debt to such mortgage, the
Property and other improvements on the Leased Premises to the extent necessary
to make it reasonably tenantable. The rent payable under this Lease during the
unexpired portion of the term shall be reduced to an amount determined by
multiplying the Base Rent that would otherwise be payable for his provision by
the ratio that the portion of the Leased Premises not rendered untenantable due
to such taking bears to the total net rental area of the Leased Premises prior
to the taking. If Landlord fails to substantially complete such restoration
and reconstruction within one-hundred and eighty (180) working days of the date
of physical possession by the condemning authority. Tenant may at its option
terminate this Lease by delivering written notice of termination to Landlord,
whereupon all rights and obligations of this Lease shall cease to exist.
8.3. Condemnation Proceeds. All compensation awarded for any
taking (or the proceeds of private sale in lieu thereof), whether for the whole
or a part of the Leased Premises, shall be the property of Landlord (whether
such award is compensation for damages to Landlord's or Tenant's interest in
the Leased Premises), and Tenant hereby assigns all of its interest in any such
award to Landlord; provided, however, Landlord shall have no interest in any
award made to Tenant for loss of business or for taking of Tenant's fixtures
and other property within the Leased Premises if a separate award for such
items is made to Tenant.
ARTICLE 9. ASSIGNMENT OR SUBLEASE
9.1. Tenant Assignment. Tenant shall not assign, in whole or in
part, this Lease, or allow it to be assigned, in whole or in part, by operation
of law or otherwise (including without limitation by merger, dissolution or
transfer of a controlling interest in any partnership or corporate Tenant,
which merger, dissolution or transfer shall be deemed an assignment) or
mortgage or pledge the same, or sublet the Leased Premises, in whole or in
part, without prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, and in no event shall any such assignment or
sublease ever release Tenant or any guarantor from any obligation or liability
hereunder. No assignee or sublessee of the Leased Premises or any portion
thereof may assign or sublet the Leased Premises or any portion thereof.
9.2. Conditions of Tenant Assignment. If tenant desires to assign
or sublet all or any part of the Leased Premises, it shall so notify Landlord
in writing at least thirty (30) days in advance of the date on which Tenant
desires to make such assignment or sublease. Tenant shall provide Landlord
with a copy of the proposed assignment or sublease and such information as
Landlord might request concerning the proposed sublessee or assignee to allow
Landlord to make informed judgements as to the financial condition, reputation,
operations and general desirability of the proposed sublessee or assignee.
Within fifteen (15) days after Landlord's receipt of Tenant's proposed
assignment or sublease and all required information concerning the proposed
sublessee or assignee, Landlord shall have the following options: (1) consent
to the proposed assignment or sublease, and, if the rent due and payable by any
assignee or sublessee under any such permitted assignment or sublease (or a
combination of the rent payable under such assignment or sublease plus any
bonus or any other consideration or any payment incident thereto) exceeds the
rent payable under this Lease for such space, Tenant shall pay to Landlord all
such excess rent and other excess consideration within ten (10) days following
receipt thereof by Tenant; or (2) refuse, to consent to the proposed assignment
or sublease, which refusal shall be deemed to have been exercised unless
Landlord gives Tenant written notice stating otherwise. Upon the occurrence of
an event of default by Tenant under this Lease, if all or any part of the
Leased Premises are then assigned or sublet, Landlord, in addition to any other
remedies provided by this Lease or provided by law, may, at its option, collect
directly from the assignee or sublessee all rents becoming due to Tenant by
reason of the assignment or sublease, and Landlord shall have a security
interest, in all properties belonging to Tenant on the Leased Premises to
secure payment of such sums. No collection directed by Landlord from the
assignee
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or sublessee shall be construed to constitute a notation or a release of Tenant
or any guarantor from the further performance of its obligations under this
Lease. All legal fees and expense incurred by Landlord in connection with the
review by Landlord of Tenant's requested assignment or sublease pursuant to
this Section, together with any legal fees and disbursements incurred in the
preparation and/or review of any documentation, shall be the responsibility of
Tenant and shall be paid by Tenant within five (5) days of demand for payment
thereof, as rental hereunder. If the rent due and payable by any assignee or
sublessee under any such permitted assignment or sublease (or a combination of
the rent payable under such assignment or sublease plus any bonus or any other
consideration or any payment incident thereof) exceeds the rent payable under
this Lease for such space, Tenant shall pay to Landlord all such excess rent
and other excess consideration within ten (10) days following receipt thereof
by Tenant.
9.3. Landlord Assignment. Landlord shall have the right to sell,
transfer or assign, in whole or in part, its rights and obligations under this
Lease and in the Property. Any such sale, transfer or assignment shall operate
to release Landlord from any and all liabilities under this Lease arising after
the date of such sale, assignment or transfer.
9.4. Rights of Mortgagee. Tenant accepts this Lease subject and
subordinate to any recorded lease, mortgage or deed of trust lien presently
existing, if any, or hereafter encumbering the Property to all existing
ordinances and recorded restrictions, covenants, easements, and agreements with
respect to the Property. Landlord hereby is irrevocably vested with full power
and authority to subordinate Tenant's interest under this Lease to any mortgage
or deed of trust lien hereafter placed on the Property. Upon any foreclosure,
judicially or non-judicially, of any such mortgage, or the sale of the Property
in lieu of foreclosure, or any other transfer of Landlord's interest in the
Property, whether or not in connection with a mortgage, Tenant hereby does, and
hereafter agrees to attorn to the purchaser at such foreclosure sale or to the
grantee under any deed in lieu of foreclosure or to any other transferee of
Landlord's interest, and shall recognize such purchaser, grantee, or other
transferee as Landlord under this Lease, and no further attornment or other
agreement shall be required to effect of evidence Tenant's attornment to and
recognition of such purchaser or grantee as Landlord hereunder. Such agreement
of Tenant to attorn shall survive any such foreclosure sale, trustee's sale,
conveyance in lieu thereof, or any other transfer of Landlord's interest in the
Property. Tenant, upon demand, at any time, before or after any such
foreclosure sale, trustee's sale, conveyance in lieu thereof, or other transfer
shall execute, acknowledge, and deliver to the prospective transferee and/or
mortgagee a Lease Subordination, Non-disturbance and Attornment Agreement, and
any additional written instruments and certificates evidencing such attornment
as the mortgagee or other prospective transferee may reasonably require, and
Tenant hereby irrevocably appoints Landlord as Tenant's agent and
attorney-in-fact for the purpose of executing, acknowledging and delivering any
such instruments and certificates. Notwithstanding anything to the contrary
implied in this Section, any mortgagee under any mortgage shall have right at
any time to subordinate any such mortgage to this Lease on such terms and
subject to such conditions as the mortgagee in its discretion may consider
appropriate. Landlord shall use its best efforts to obtain a "Nondisturbance"
agreement in form reasonably satisfactory to Tenant.
9.5. Estoppel Certificates. Tenant agrees to furnish, from time to
time, within ten (10) days after receipt of a request from Landlord or
Landlord's mortgagee, a statement certifying, if applicable, all or some of the
following: Tenant is in possession of the Leased Premises; the Lease is in full
force and effect; the Lease is unmodified (except as disclosed in such
statement); Tenant claims no present charge, lien, or claim of offset against
rent; the rent is paid for the current month, but is not prepaid for more than
one (1) month and will not be prepaid for more than one (1) month in advance,
there is no existing default by reason of some act or omission by Landlord;
that Landlord has performed all inducements required of Landlord in connection
with this Lease including construction obligations, and Tenant accepts the
Leased Premises as constructed; an acknowledgement of the assignment of rentals
and other sums due hereunder to the mortgagee and agreement to be bound
thereby; an agreement requiring Tenant to advise the mortgagee of damage to or
destruction of the Leased Premises by fire or other casualty requiring
reconstruction; an agreement by Tenant to give the mortgagee written notice of
Landlord's default hereunder and to permit the mortgagee to cure such default
within a reasonable time after such notice before exercising any remedy Tenant
might possess as a result of such default; and such other matters as may be
reasonably required by Landlord or Landlord's mortgagee. Tenant's failure to
deliver such statement, in addition to being a default under this Lease, shall
be deemed to establish conclusively that this Lease is in full force and effect
except as declared by
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Landlord, that Landlord is not in default or any of its obligations under this
Lease, and that Landlord has not received more than one (1) month's rent in
advance.
ARTICLE 10. LIENS
10.1. Landlord expressly waives any and all statutory landlord's
liens.
ARTICLE 11. DEFAULT AND REMEDIES
11.1. Default by Tenant. The following shall be deemed to be events
of default by Tenant under this Lease: (1) Tenant shall fail to pay when due
any installment of rent or any other payment required pursuant to this Lease
and such failure continues for at least three (3) business days after receipt
by Tenant of written notice specifying such failure, (2) Tenant shall abandon
any substantial portion of the Leased Premises; (3) Tenant or any guarantor of
Tenant's obligations hereunder shall file a petition or be adjudged bankrupt or
insolvent under any applicable federal or state bankruptcy or insolvency law or
admit that it cannot meet its financial obligations as they become due, or a
receiver or trustee shall be appointed for all or substantially all of the
assets of Tenant or any guarantor of Tenant's obligations hereunder, (4) Tenant
or any guarantor of Tenant's obligations hereunder shall make a transfer in
fraud of creditors or shall make an assignment for the benefit of creditors;
(5) Tenant shall do or permit to be done any act which results in a lien being
filed against the Leased Premises or the Property; (6) the liquidation,
termination, dissolution or (if the Tenant is a natural person) the death of
Tenant or any guarantor of Tenant's obligations hereunder, or (7) Tenant shall
be in default of any other term, provision or covenant of this Lease, other
than those specified in subparts (1) through (6), above, and such default is
not incurred within thirty (30) days after written notice thereof to Tenant.
11.2. Remedies for Tenant's Default. Upon the occurrence of any
event of default set forth in this Lease, Landlord shall have the option to
pursue one or more of the remedies set forth in this Section 11.2 without any
additional notice or demand:
(1) Within declaring the Lease Terminated, Landlord may
enter upon and take possession of the Leased Premises, by picking or
changing locks if necessary, and lock out, expel or remove Tenant and
any other person who may be occupying all or any part of the Leased
Premises without being liable for any claim for damages, and relet the
Leased Premises on behalf of Tenant and receive the rent directly by
reason of the reletting. Tenant agrees to pay Landlord on demand any
deficiency that may arise by reason of any reletting of the Leased
Premises; further, Tenant agrees to reimburse Landlord for any
reasonable expenditures made by it in order to relet the Leased
premises, including, but not limited to, remodeling and repair costs.
(2) Without declaring the lease terminated, Landlord may
enter upon the Leased Premises, by picking or changing locks if
necessary, without being liable for any claim for damages, and do
whatever Tenant is obligated to do under the terms of this Lease.
Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with Tenant's obligations
under this Lease; further, Tenant agrees that Landlord shall not be
liable for any damages resulting to Tenant from effecting compliance
with Tenant's obligations under this Lease caused by the negligence of
Landlord or otherwise.
(3) Landlord may terminate this Lease, in which event
Tenant shall immediately surrender the Leased Premises to Landlord,
and if Tenant fails to surrender the Leased Premises, Landlord may,
without prejudice to any other remedy which it may have for possession
or arrearages in rent, enter upon and take possession of the Leased
Premises, by picking or changing locks if necessary, and lock out,
expel or remove Tenant and any other person who may be occupying all
or any part of the Leased Premises without being liable for any claim
for damages. Tenant agrees to pay on demand the amount of all loss
and damage which Landlord may suffer for any reason due to the
termination of this Lease under this Section 11.2, including (without
limitation) loss and damage due to the failure of Tenant to maintain
and/or repair the Lease Premises as required hereunder and/or due to
the inability of Landlord to relet the Leased Premises on satisfactory
terms or otherwise.
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Landlord's exercise, following a default by Tenant under this Lease, of any
right granted hereunder or under any applicable law to lock out or change the
locks securing the Leased Premised shall not impose upon Landlord any duty to
notify Tenant of the name and address or telephone number of the individual or
company from whom a new key may be obtained, nor shall Landlord have any duty
to provide Tenant with a new key or any other means of access to the Leased
Premises. Landlord and Tenant agree that the parties hereto intend that all
rights and remedies of Landlord under this Lease or otherwise available to
Landlord under applicable law shall supersede any conflicting provisions of
Chapters 92 and 93 of the Texas Property Code, and any amendments,
modifications, recodification or other changes thereto.
Notwithstanding any other remedy set forth in this Lease, if Landlord has made
rent concessions of any type or character, or waived any base rent, and Tenant
fails to take possession of the Leased Premises on the commencement Date or
otherwise defaults at any time during the term of this Lease, the rent
concessions, including any waived base rent, shall be canceled and the amount
of the base rent or other rent concessions shall be due and payable immediately
as if no rent concessions or waiver of any base rent had ever been granted. A
rent concession or waiver of the base rent shall not relieve Tenant of any
obligation to pay an other charge due and payable under this Lease, including,
without limitation, any sum due under Section 2.3 of this Lease.
Notwithstanding anything contained in this Lease to the contrary, this Lease
may be terminated by Landlord only by written notice of such termination to
Tenant given in accordance with Section 14.7 below, and no other act or
omission of Landlord shall be construed as a termination of this Lease.
11.3. Remedies Cumulative. All rights and remedies of either party
herein or existing at law or in equity are cumulative and the exercise of one
or more rights or remedies shall not be taken to exclude or waive the right to
the exercise of any other.
11.4. Default by Landlord. If Landlord defaults in the performance
of any term, covenant or condition required to be preformed by Landlord under
this Lease, Landlord shall have thirty (30) days following the receipt of
written notice from Tenant specifying such default to cure such default,
provided that if such default cannot be cured within thirty (30) days following
the receipt of written notice from Tenant specifying such default to cure such
default, provided that such default cannot be cured within thirty (30) days,
Landlord has commended action to cure such default within said thirty (30) day
period. Landlord shall have all reasonable and necessary time to complete such
cure.
11.5. Remedies for Landlord's Default. Upon the occurrence of any
default set forth in this Lease and subsequent failure by Landlord to cure or
commence actions to cure as provided in Section 11.4, Tenant shall terminate
this Lease immediately, without penalty, upon written notice to the Landlord.
11.6. Notice to Mortgagees. Provided that Tenant has received prior
written notice of the name and address of such Lender, Tenant shall serve
written notice of any claimed default or breach by Landlord under this Lease
upon any Lender which is a beneficiary under any deed of trust or mortgage
against the Leased Premises, and no notice to Landlord shall be effective
against Landlord unless such notice is served upon said Lender; notwithstanding
anything to the contrary contained herein, Tenant shall allow such Lender the
same period following Lender's receipt of such notice to cure default or breach
as is afforded Landlord.
ARTICLE 12. RELOCATION
ARTICLE 13. DEFINITIONS
13.1. Abandon. "Abandon" means the vacating of all or a substantial
portion of the Leased Premises by Tenant, whether or not Tenant is in default
of the rental or other payments due under this Lease.
13.2. Act of God or Force Majeure. An "act of God" or "force
majeure" is defined for purposes of this Lease as strikes, lockouts, sitdowns,
material or labor restrictions by any governmental authority, unusual
transportation delays, riots, floods, washouts, explosions, earthquakes, fire
storms, weather (including wet grounds or inclement weather which prevents
construction), acts of the public enemy, wars, insurrections, and/or any other
cause not
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reasonably within the control of Landlord or which by the exercise of due
diligence Landlord is unable wholly or in part, to prevent or overcome.
13.3. Square Feet. "Square feet" or "square foot" as used in this
Lease includes the area contained within the Leased Premises together with a
common percentage factor of the Leased Premises proportionate to the total
building area as determined by Landlord.
ARTICLE 14. MISCELLANEOUS
14.1. Waiver. Failure to either party to declare an event of
default immediately upon its occurrence, or delay in taking any action in
connection with an event of default, shall not constitute a waiver of the
default, but said party shall have the right to declare the default at any time
and take such action as is lawful or authorized under this Lease. Pursuit of
any one or more of the remedies set forth in Article 11 above shall not
preclude pursuit of any one or more of the other remedies provided elsewhere in
the Lease or provided by law, nor shall pursuit of any remedy hereunder or at
law constitute forfeiture or waiver of any rent or damages accruing to the
non-defaulting party by reason of the violation of any of the terms, provisions
or covenants of this Lease. Failure by either party to enforce one or more of
the remedies provided hereunder or at law upon any event of default shall not
be deemed or construed to constitute a waiver of the default or of any other
violation or breach of any of the terms, provisions and covenants contained in
this Lease. Landlord may collect and receive rent due from Tenant without
waiving or affecting any rights or remedies that Landlord may have at law or in
equity or by virtue of this Lease at the time of such payment. Institution of
a forcible detainer action to re-enter the Leased Premises shall not be
construed to be an election by Landlord to terminate this Lease.
14.2. Act of God. Landlord shall not be required to perform any
covenant or obligation in this Lease, or be liable in damages to Tenant, so
long as the performance or non-performance of the covenant or obligation is
delayed, caused or prevented by an act of God, force majeure or by Tenant.
14.3. Attorney's Fees. If either party defaults in the performance
of any of the terms, covenants, agreements or conditions contained in this
Lease and the other party places in the hands of any attorney the enforcement
of all or any part of this Lease, the collection of any rent or other sums due
or to become due or recovery of the possession of the Leased Premises (in the
case of Landlord), Tenant agrees to pay the prevailing party's costs of
collection, including reasonable attorney's fees, whether suit is actually
filed or not.
14.4. Successors. This Lease shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns.
14.5. Rent Tax. If applicable in the jurisdiction where the Leased
Premises are situated, Tenant shall pay and be liable for all rental, sales and
use taxes or other similar taxes, if any, levied or imposed by any city, state,
county or other governmental body having authority, such payment to be in
addition to all other payments required to be paid to Landlord by Tenant under
the terms of this Lease. Any such payment shall be paid concurrently with the
payment of the rent, additional rent, operating expenses or other charge upon
which the tax is based as set forth above.
14.6. Interpretation. The captions appearing in this Lease are
convenience only and in no way define, limit, construe or describe the scope or
intent of any Section. Grammatical changes required to make the provisions of
this Lease apply (1) in the plural sense where there is more than one tenant
and (2) to either corporations, associations, partnerships, or individuals,
males or females, shall in all instances be assumed as though in each case
fully expressed. The laws of the State of Texas shall govern the validity,
performance and enforcement of this Lease. This Lease shall not be construed
more or less favorably with respect to either party as a consequence to the
Lease or various provisions hereof having been drafted by one of the parties
hereto.
14.7. Notices. All rent and other payments required to be made by
Tenant shall be payable to Landlord, in care of Manager, at Manager's address
set forth on page 1 (or if no address be set forth for Manager, to Landlord at
Landlord's address set forth on page 1). All payments required to be made by
Landlord to Tenant shall be payable to Tenant at Tenant's address set forth on
page 1. Any notice or document (other than rent) required or permitted to be
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delivered by the terms of this Lease shall be deemed to be delivered (whether
or not actually received) when deposited in the United States Mail, postage
prepaid, certified mail, return receipt required, addressed to the parties at
the respective addressees set forth on page 1 (or, in the case of Tenant, at
the Leased Premises), or to such other addresses as the parties may have
designated by written notice to each other, with copies of notices to Landlord
being sent to Landlord's address as shown on page 1. Manager shall be a
co-addressee with Landlord on all notices sent to Landlord by Tenant hereunder,
and any notice sent to Landlord and not to Manager, also, in accordance with
this Section shall be deemed ineffective.
14.8. Submission of Lease. Submission of this Lease to Tenant for
signature does not constitute a reservation of space or an option of Lease.
This Lease is not effective until execution by and delivery to both Landlord
and Tenant.
14.9. Corporate Authority. If Tenant executes this Lease as a
corporation or a partnership (general or limited), each person executing this
Lease on behalf or Tenant hereby personally represents and warrants that:
Tenant is a duly authorized and existing corporation or partnership (general or
limited), Tenant is qualified to do business in the state in which the Leased
Premises are located, the corporation or partnership (general or limited) has
full right and authority to enter into this Lease, each person signing on
behalf of the corporation or partnership (general or limited) is authorized to
do so, and the execution and delivery of the Lease by Tenant will not result in
any breach of, or constitute a default under any mortgage, deed of trust,
lease, loan, credit agreement, partnership agreement, or other contract or
instrument to which Tenant is a party or by which Tenant may be bound. If any
representation or warranty contained in this Section is false, each person who
executes this Lease shall be liable, individually, as Tenant hereunder.
14.10. Multiple Tenants. If this Lease is executed by more than one
person or entity as "Tenant", each such person or entity shall be jointly and
severally liable hereunder. It is expressly understood that any one of the
named Tenants shall be empowered to execute any modification, amendment,
exhibit, floor plan, or other document herein referred to and bind all of the
named Tenants thereto; and Landlord shall be entitled to rely on same to the
extent as if all of the name Tenants had executed same.
14.11. Tenant's Financial Statements. Tenant represents and warrants
to Landlord that, as of the date of execution of this Lease by Tenant, the
financial statements of Tenant provided to Landlord prior to or simultaneously
with the execution of this Lease accurately represent the financial condition
of Tenant as of the dates and for the periods indicated therein, such financial
statements are true and do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
included therein not misleading and there has been no material adverse change
in the financial condition or business prospects of Tenant since the respective
dates of such financial statements. If there is a material adverse change in
Tenant's financial condition, Tenant will give immediate notice of such
material adverse change to Landlord. If Tenant fails to give such immediate
notice to Landlord, such failure shall be deemed an event of default under this
Lease.
14.12. Severability. If any provision of this Lease or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Lease and the application of
such provisions to other persons or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by Law. Each covenant
and agreement contained in this Lease shall be construed to be a separate and
independent covenant and agreement, and the breach of any such covenant or
agreement by Landlord shall not discharge or relieve Tenant from Tenant's
obligations to perform each and every covenant and agreement of this Lease to
be performed by Tenant.
14.13. Landlord's Liability. If Landlord shall be in default under
this Lease and, if as a consequence of such default, Tenant shall recover a
money judgement against Landlord, such judgement shall be satisfied only out of
the right, title, and interest of Landlord in the Property as the same may then
be encumbered and neither Landlord nor any person or entity comprising Landlord
shall be liable for any deficiency. In no event shall Tenant have the right to
levy execution against any property of Landlord nor any person or entity
comprising Landlord other than its interest in the Property as herein expressly
provided.
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14.14. Sale of Property. Upon any conveyance, sale or exchange of
the Leased Premises or assignment of this Lease, Landlord shall be and is
hereby entirely free and relieved of all liability under any and all of its
covenants and obligations contained in or derived from this Lease arising out
of any act, occurrence, or omission relating to the Leased Premises or this
Lease occurring after the consummation of such sale or exchange and assignment.
14.15. Time is of the Essence. The time of the performance of all of
the covenants, conditions and agreements of this Lease is of the essence of
this Lease.
14.16. Subtenancies. At Landlord's option, the voluntary or other
surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not
work a merger of estates and shall operate as an assignment of any or all
permitted subleases or subtenancies.
ARTICLE 15. AMENDMENT AND LIMITATION OF WARRANTIES
15.1. Entire Agreement. IT IS EXPRESSLY AGREED BY TENANT, AS A
MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH
THE SPECIFIC REFERENCE TO EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF THE
PARTIES; THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENT OR PROMISES PERTAINING TO THE SUBJECT
MATTER OF THIS LEASE OR ANY EXPRESSLY MENTIONED EXTRINSIC DOCUMENTS THAT ARE
NOT INCORPORATED IN WRITING IN THIS LEASE.
15.2. Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LANDLORD AND TENANT.
15.3. Limitation of Warranties. LANDLORD WARRANTS AND REPRESENTS TO
THE TENANT THAT ON THE COMMENCEMENT DATE THE LEASED PREMISES SHALL BE IN
COMPLIANCE WITH ALL LOANS, STATUES AND ORDINANCE APPLICABLE TO THE LEASED
PREMISES. LANDLORD AND TENANT EXPRESSLY AGREE THERE ARE AND SHALL BE NO
IMPLIED WARRANTIES OR MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE NOT
WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TENANT EXPRESSLY ACKNOWLEDGES
THAT LANDLORD HAS MADE NO WARRANTIES OR REPRESENTATIONS CONCERNING ANY
HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL MATTERS AFFECTING ANY PART OF THE
PROPERTY, AND LANDLORD HEREBY EXPRESSLY DISCLAIMS AND TENANT WAIVES ANY EXPRESS
OR IMPLIED WARRANTIES WITH RESPECT TO ANY SUCH MATTERS.
(Remainder of page intentionally left blank.)
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LANDLORD
DORBET, INC.
------------
BY: /s/Xxxxxx X. Xxxxxxxxx, XX
-----------------------------------
NAME: XXXXXX X. XXXXXXXXX, XX
---------------------------------
TITLE: VICE PRESIDENT
--------------------------------
TENANT
FWT, INC.
---------
BY: /s/ Xxx Xxxxx
-----------------------------------
NAME: Xxx Xxxxx
---------------------------------
TITLE: President and CEO
--------------------------------
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ADDENDUM A
TO OFFICE LEASE AGREEMENT
DATED December 23, 0000
XXXXXXX, XXXXXX, INC. AS LANDLORD AND
FWT, INC., AS TENANT
This Addendum A is attached to, made a part of, and incorporated by reference
into that certain Lease Agreement (the "Lease") dated DECEMBER 23, 1997 between
DORBET, INC. ("Landlord"), and FWT, INC. ("Tenant"). Each capitalized term not
expressly defined herein shall have the meaning given to such term in the
Agreement.
Notwithstanding any provisions to the contrary set forth in the Agreement,
Landlord and Tenant agree that:
1. Section 1.13 of the Lease shall be, and is hereby, deleted in its
entirety.
2. Section 2.3 of the Lease shall be, and is hereby, deleted in its
entirety, and the following is substituted therefor:
2.3 Operating Expenses
A. The "Base Year" shall mean the calendar year 1998.
B. If Landlord's Operating Expenses per net rentable
square foot for the Property, in any calendar year during the term of this
Lease exceed the Operating Expenses for the Base Year, Tenant agrees to pay as
additional rent Tenant's share of such excess operating expenses. As used
herein, the term "Tenant's share of such excess operating expenses. As used
herein, the term "Tenant's share of such excess Operating Expenses" means the
amount by which Landlord's Operating Expenses per net rentable square foot
exceed the Operating Expense for the Base Year, multiplied by the net rentable
square feet comprising the Leased Premises. Landlord may involve Tenant
monthly for Tenant's share of the actual operating expenses for each calendar
year, subsequent to the Base Year, beginning on the first day of the month of
the first subsequent calendar year. Within one-hundred twenty (120) days
following the close of each calendar year, Landlord shall provide Tenant an
accounting showing in reasonable detail all computations of additional rent due
under this Section. If the accounting shows that the total of the monthly
payments made by Tenant exceeds the amount of additional rent due by Tenant
under this Section, the accounting shall be accompanied by a refund. If the
accounting shows that the total of the monthly payments made by Tenant is less
than the amount of the additional rent due by Tenant under this section, the
accounting shall be accompanied by an invoice for the additional rent.
Notwithstanding any other provisions in this Lease, during the year in which
the Lease terminates, Landlord, within one (1) year following the termination
date, shall have the option to invoice Tenant for Tenant's share of the excess
operating expenses based upon the previous year's operating expenses. If this
Lease shall terminate on a day other than the last day of a calendar year, the
amount of any additional rent payable by Tenant applicable to the year in which
such termination shall occur shall be prorated on the ratio that the number of
days from the commencement of the calendar year to and including the
termination date bears to 365. Tenant shall have the right, at its own expense
and within a reasonable time, to audit during Landlord's regular business hours
Landlord's books relevant to the additional rent payable under this Section.
Notwithstanding anything to the contrary contained in this Lease, if the
Building is not fully occupied during any calendar year, Tenant's additional
rent under this Section and the operating expenses shall be determined as if
the Building had been fully occupied during such year. Tenant agrees to pay
additional rent during this Section within thirty (30) days following receipt
of the invoice or accounting showing additional rent due.
EXECUTED effective as of the date first set forth in the Lease.
LANDLORD: DORBET, INC.
BY:
-----------------------------------
XXXXXX X. XXXXXXXXX, XX
ITS: VICE PRESIDENT
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ADD. A-1
21
TENANT: FWT, INC.
BY: /s/ XXX XXXXX
-----------------------------------
XXX XXXXX
ITS: PRESIDENT & CEO
Initial ____
ADD. A-2
22
EXHIBIT A
METES AND BOUNDS
Being Xxx 0X, Xxxxx 0, XXX XXXXXXXXX, an addition to the City of Arlington,
Tarrant County, Texas, recorded in volume 388-201, page 11, Plat Records
Tarrant County, Texas, and being out of Xxx 0, Xxxxx 0, XXX XXXXXXXXX, recorded
in volume 388-195, page 35, Plat Records Tarrant County, Texas, being in the
X.X. Xxxx Survey, Abstract Number 950 and being more particularly described as
follows:
COMMENCING at the most north northwest corner of Xxx 0 X-0 Xxxxx 0, XXX
XXXXXXXXX, recorded in volume 388-214, page 56, Plat Records Tarrant County,
Texas, and being in the south right-of-way of West Arbrook Blvd.;
THENCE North 58 degrees 30' 00" East along said south right-of-way of West
Arbrook Blvd., 520.01 feet to the point of curvature, having a central angle of
08 degrees 17' 08" and a radius of 748.42 feet;
THENCE along the arc of said curve and continuing along said south
right-of-way, 108.23 feet to the end of curve;
THENCE North 74 degrees 29' 11" East and continuing along said south
right-of-way, 34.73 feet to a found 5/8 inch iron pin, being the POINT OF
BEGINNING;
THENCE North 74 degrees 29' 11" East and continuing along said south
right-of-way, 34.73 feet to a found 5/8 inch iron pin, being the POINT OF
BEGINNING;
THENCE North 74 degrees 29' 11" East and continuing along said south
right-of-way, 116.54 feet to a found 5/8 inch iron pin and being the point of a
non tangent curve, having a central angle of 11 degrees 34' 53" and a radius of
743.42 feet;
THENCE along the arc of said curve and continuing along said south
right-of-way, 150.27 feet to a found 5/8 inch iron pin and being the point of
tangency thereof;
THENCE East continuing along said south right-of-way, 9.54 feet to a found 5/8
inch iron pin and being the point of curvature having a central angle of
89 degrees 57' 58" and a radius of 66.23 feet;
THENCE along the arc of said curve to 103.99 feet to a found 5/8 inch iron pin
in the west right-of-way of Xxxxxxx Road and being the point of tangency
thereof;
THENCE South 00 degrees 02' 02" East along said west right-of-way, 328.81 feet
to a found 5/8 inch iron pin;
THENCE South 04 degrees 32' 25" West continuing along said west right-of-way,
150.47 feet to a found 5/8 inch iron pin;
THENCE South 00 degrees 02' 02" East continuing along said west right-of-way,
140.00 feet to a found X cut in concrete sidewalk;
THENCE South 44 degrees 58' 59" West, 14.14 feet to a found X cut in concrete
sidewalk being in the north right-of-way of Highlander Blvd;
THENCE West along said north right-of-way, 111.91 feet to a found Y cut in
concrete sidewalk and being the point of curvature, having a central angle of
14 degrees 08' 50" and a radius of 832.09 feet;
THENCE along the arc of said curve and continuing along said north right-of-way
205.46 feet to a found 5/8 inch iron pin and being the southwest corner of said
Xxx 0X, Xxxxx 2;
THENCE North 00 degrees 02' 02" West and leaving the north right-of-way of
Highlander Blvd., 673.82 feet to the POINT OF BEGINNING containing 5.239 Acres
of land more or less.
Initial ____
EX. A-1
23
EXHIBIT B
[FLOORPLAN]
Initial ____
EX. B-1
24
EXHIBIT C
SPECIAL PROVISIONS
WHEREAS, Dorbet, Inc., hereinafter referred to as "Landlord" and FWT, Inc.,
hereinafter referred to as "Tenant", agree that the following terms and
conditions shall be included in the Lease entered into regarding the premises
located at 000 Xxxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx, Landlord and Tenant as
set forth verbatim therein:
1. Base Rent during the initial term of the lease shall be as follows:
a. March 1, 1998 through February 28, 1999 = $14.50 rentable
square foot
b. March 1, 1999 through February 28, 2000 = $15.00 rentable
square foot
c. March 1, 2000 through February 28, 2001 = $15.50 rentable
square foot
d. March 1, 2001 through February 28, 2002 = $16.00 rentable
square foot
e. March 1, 2002 through February 28, 2003 = $16.50 rentable
square foot
The estimated rentable square footage shall be 16,000 square feet.
Upon completion of Leasehold Improvements specified in Exhibit D, the Leased
Premises will be remeasured in accordance with the standards described in
ANSI/BOMA publication Z65.1-1996, "Standard Method for Measuring Floor Area in
Office Buildings". The exact rentable square footage will be adjusted based on
the above measurements as determined by Landlord and such calculation shall
thereafter represent the applicable rentable square footage under this Lease.
2. Landlord shall provide ten (10) reserved parking spaces AT NO
ADDITIONAL COST TO THE TENANT. Said spaces shall be contiguous. The spaces so
reserved shall be ADJACENT TO THE BUILDING in the general location shown on
Figure Ex. C-1. Landlord shall provide signage designating said spaces as
reserved for the used of "FWT, Inc.". Landlord reserves the right to relocated
the spaces during the Lease term; PROVIDED, HOWEVER, SUCH NEW SPACES SHALL BE
RESERVED, CONTIGUOUS AND IN A NO-LESS DESIRABLE LOCATION. Additionally, the
Landlord reserves the right to develop additional improvement on the Property
and in connection therewith to re-configure the parking area provided such
re-configured parking area complies with applicable laws and ordinances.
Landlord shall use reasonable effort to ensure reserved parking areas are not
used by unauthorized persons but shall not be required to patrol or supervise
such parking.
3. The enforceability and implementation of this Lease is expressly
contingent upon the written approval of the first lienholder ("Lender").
Landlord shall, upon execution of the Lease, immediately submit the Lease to
the Lender for approval. In the event the Lease is not approved by the Lender,
neither party shall have further right or obligations under the Lease.
Landlord shall assist Tenant in policing and enforcing Tenant's reserved
parking.
4. Provided that (i) no event of default has occurred under any term or
provision contained in this Lease and no condition exists which with the
passage of time or the giving of notice or both would constitute an event of
default pursuant to this Lease and (ii) Tenant has continuously occupied the
Premises for the Permitted Use during the Lease Term, Tenant (but not any
assignee or subtenant) shall have the right and option (the "Renewal Option")
to renew this Lease, by written notice delivered to Landlord no earlier than
nine (9) months nor later than three (3) months prior to the expiration of the
initial Lease Term, for and additional term (the "Renewal Term") of sixty (60)
months under the same terms, conditions and covenants contained in the Lease,
except that (a) no abatements or other concessions, if any, applicable to the
initial Lease Term shall apply to the Renewal Term; (b) the Base Rent shall be
equal to the market rate for comparable office space located in the Building as
of the end of the initial Lease term as determined by Landlord; (c) Tenant
shall have no option to renew this Lease beyond the expiration of the Renewal
Term; and (d) all leasehold improvements within the Premises shall be provided
in their then existing condition (on an "as is" basis) at the time the Renewal
Term commences. Failure by Tenant to notify Landlord in writing of Tenant's
election to exercise the Renewal Option herein granted within the time limits
set forth for such exercise shall constitute a waiver of such Renewal Option.
In the event Tenant elects to exercise the Renewal Option as set forth above,
Landlord shall, within thirty (30) days thereafter, notify Tenant in writing of
the proposed rental for the Renewal Term (the "Proposed Renewal Rental");
provided such Proposed Renewal Rental shall not exceed the lesser of 95% of
then current market rental rate or $20.00 per rentable square foot for the
first year of the Renewal Term. The Base Rent for each subsequent year of the
Lease Term shall increase by three percent (3%) of the Base Rent for the
previous year. Tenant shall within thirty (30) days following delivery of the
Proposed Renewal
Initial ____
EX. C-1
25
Rental by Landlord notify Landlord in writing of the acceptance or rejection of
the Proposed Renewal Rental. If Tenant accepts Landlord's proposal, then the
Proposed Renewal Rental shall be the Base Rent in effect during the Renewal
Term. The failure of Tenant to respond in writing during the aforementioned
thirty (30) day period shall be deemed an acceptance by Tenant of the Proposed
Renewal Rental. Should Tenant reject Landlord's Proposed Renewal Rental during
such thirty (30) day period, then Landlord and Tenant shall negotiate during
the thirty (30) day period commencing upon Tenant's rejection of Landlord's
Proposed Renewal Rental to determine the rental for the Renewal Term. IN THE
EVENT THAT LANDLORD AND TENANT ARE UNABLE TO AGREE TO A RENTAL FOR THE RENEWAL
TERM DURING SAID THIRTY (30) DAY PERIOD, THE MARKET RATE FOR COMPARABLE OFFICE
SPACE SHALL BE THE AVERAGE OF THE MARKET RATES DETERMINED BY THREE (3) REAL
ESTATE BROKERS, ONE OF WHICH SHALL BE SELECTED BY THE LANDLORD, ONE OF WHICH
SHALL BE SELECTED BY TENANT, AND THE THIRD OF WHICH SHALL BE SELECTED BY THE
TWO BROKERS SELECTED BY LANDLORD AND TENANT.
Upon exercise of the Renewal Option by Tenant and subject to the
conditions set forth hereinabove, the Lease shall be extended for the period of
such Renewal term without the necessity of the execution of any further
instrument or document, although if requested by either party, Landlord and
Tenant shall enter into a written agreement modifying and supplementing the
Lease in accordance with the provisions hereof. Any termination of the Lease
during the initial Lease Term shall terminate all renewal rights hereunder.
The renewal rights of Tenant hereunder shall not be severable from the Lease,
nor may any such rights be assigned or otherwise conveyed in connection with
any permitted assignment of the Lease. Landlord's consent to any assignment of
the Lease shall not be construed as allowing an assignment of such rights to
any assignee.
5. Provided that (i) no event of default has occurred under any term or
provision contained in this Lease and no condition exists which with the
passage of time or the giving of notice or both would constitute an event of
default pursuant to this Lease and (ii) Tenant has continuously occupied the
Premises for the Permitted Use during the Lease Term, Landlord grants Tenant a
subordinate right of refusal on all lease space in the Building as such space
become available. Tenant's right of refusal shall be subordinate to any right
of refusal or renewal options currently existing at commencement of this Lease
in favor of other tenants. Landlord shall give Tenant written notice of
Landlord's intent to lease additional space in the Building, such notice to
state the Base Rent, finish allowance (if any) and term. Tenant shall have
five (5) business days in which to notify Landlord of Tenant's intent to
exercise said right of refusal. Base Rent for said space shall be no less than
the offer to lease as provided above. Additionally, Landlord agrees to notify
Tenant of the pending availability of lease space in the Building thirty (30)
days prior to the expiration of any lease.
6. Tenant acknowledges that the Leased Premises defined in this Lease are
currently occupied and that the current lease with respect to the Leased
Premises expires on December 31, 1997. Landlord will use it best efforts to
terminate the possession of the existing Tenant and Subtenants at the
expiration of the current lease in order to proceed with the Leasehold
Improvements described in the Lease. However, Landlord shall not be liable to
Tenant for any alleged damages or delays in securing possession of the Leased
Premises. Tenant acknowledges that the Leasehold Improvements will require 45
days to construct for the later of Tenant's and Landlord final agreement on the
construction documents or the date the Tenant (Subtenant) relinquishes the
space.
7. Standard building operating hours shall be as follows (holidays
excepted):
Monday through Friday 7:00 a.m. to 9:00 p.m.
Saturday 8:00 a.m. to 5:00 p.m.
8. In the event of conflict between any term hereof and the Lease, the
terms hereof shall control.
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EX. C-2
26
FIGURE EX. C-1
RESERVED PARKING
[MAP/DESIGN]
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EX. C-3
27
EXHIBIT D
LEASEHOLD IMPROVEMENT AGREEMENT
Landlord and Tenant shall agree on specific leasehold improvements within
twenty (20) business days of lease execution and a detailed work statement
shall be prepared and made a part of this lease. Landlord shall provide a
Tenant Finish allocation of $9.00 per rentable square foot to pay for agreed to
Tenant Finish. Landlord shall contract for an manage construction in
accordance with generally accepted business practices. Tenant Finish allowance
shall not be used to purchase or install Tenant's personal property including,
but not limited to, (i) telephone systems, installation, (ii) computer systems,
installation, (iii) furniture or equipment, and (iv) audio/visual equipment and
installation.
The cost of renovating the current common area rest rooms to comply with
Americans with Disabilities Act shall be the responsibility of the Landlord and
shall not be charged against Tenant Finish allocation; however, any additional
rest room facilities requested by the Tenant shall be charged against the
allocation.
All costs in excess of the agreed to Tenant Finish allocation shall be borne by
the Tenant.
All construction costs charged to the Tenant Finish Allowance shall be at
Landlord's actual cost. Landlord shall not charge construction management fee
against the Tenant Finish Allowance.
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EX. D-1
28
RULES AND REGULATIONS
1. Landlord agrees to furnish Tenant four keys without charge.
Additional keys will be furnished at a nominal charge. Tenant shall not change
locks or install additional locks on doors without prior written consent of
Landlord. Tenant shall not make or cause to be made duplicates of keys
procured from Landlord without prior written approval of Landlord. All keys to
the Leased Premises shall be surrendered to Landlord upon termination of this
Lease.
2. Tenant will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the Leased Premises for
Tenant to Landlord for Landlord's approval before performance of any
contractual service. Tenant's contractors and installation technicians shall
comply with Landlord's rules and regulations pertaining to construction and
installation. This provision shall apply to all work performed on or about the
Leased Premises, including installation of telephones, telegraph equipment,
electrical devices and attachments and installations of any nature affecting
floors, walls, woodwork, trim, windows, ceiling and equipment or any other
physical portion of the Leased Premises or the Property.
3. Tenant shall not at any time occupy any part of the Leased Premises as
sleeping or lodging quarters.
4. Tenant shall not place, install or operate on the Leased Premises or
in any part of the Property any engine, stove or machinery, or conduct
mechanical operations or xxxx thereon or therein, or place or use in or about
the Leased Premises or the Property any explosives, gasoline, kerosene, oil,
acids, caustics, or any flammable, explosive or hazardous material without
written consent of Landlord, with the exception of incidental microwave usage.
5. Landlord will not be responsible for lost or stolen merchandise, trade
fixtures, furniture, furnishings, personal property, equipment, money or
jewelry from the Leased Premises or the Property regardless of whether such
loss occurs when the area is locked against entry or not.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in
or about the Leased Premises or Property.
7. Employees of Landlord shall not receive or carry messages for or to
any Tenant or other person or contract with or render free or paid services to
any Tenant or to any Tenant's agents, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries,
passages, doors, elevators, hallways or stairways shall be blocked or
obstructed or any rubbish, litter, trash or material of any nature placed,
emptied, or thrown into these areas or such area used by Tenant's agents,
employees or invitees at any time for purposes inconsistent with their
designation by Landlord.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse or by the defacing or injury of any part of the
Property shall be borne by the person who shall occasion it. No person shall
waste water by interfering with the faucets or otherwise.
10. No person shall disturb occupants of the Property by the use of any
radios, record players, tape recorders, musical instruments, the making of
unseemly noises or any unreasonable use.
11. Nothing shall be thrown out of the windows of the Property or down the
stairways or other passages.
12. Tenant and its employees, agents and invitees shall park their
vehicles only in those parking areas designated by Landlord. Tenant shall
furnish Landlord with state automobile license numbers to Tenant's vehicles and
its employees' vehicles within five (5) days after taking possession of the
Leased Premises and shall notify Landlord of any changes within five (5) days
after such change occurs. Tenant shall not leave any vehicle in a state of
disrepair (including without limitation, flat tires, out of date inspection
stickers or license plates) on the Leased Premises or the Property. If Tenant
or its employees, agents or invitees park their vehicles in areas other than
designated parking areas or leave any vehicle in a state of disrepair,
Landlord, after giving written notice to Tenant of such violation, shall have
the right to remove such vehicles at Tenant's expense.
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00. Parking in a parking garage or area shall be in compliance with all
parking rules and regulations including any sticker or other identification
system established by Landlord. Failure to observe the rules and regulations
shall terminate Tenant's right to use the parking garage or area and subject
the vehicle in violation of the parking rules and regulations to removal and
impoundment. No termination of parking privileges or removal of impoundment of
a vehicle shall create any liability on Landlord or be deemed to interfere with
Tenant's right to possession of its Leased Premises. Vehicles must be parked
entirely within the stall lines and all directional signs, arrows and posted
speed limits must be observed. Parking is prohibited in areas not striped for
parking, in aisles, where "No Parking" signs are posed, on ramps, in cross
hatched areas, and in other areas as may be designated by Landlord. Parking
stickers or other forms of identification supplied by Landlord shall remain the
property of Landlord and not the property of Tenant and are not transferable.
Every person is required to park and lock his vehicle. All responsibility for
damage to vehicles is assumed by the owner of the vehicle or its driver.
14. Movement in or out of the Property of furniture of office supplies and
equipment, or dispatch or receipt by Tenant of any merchandise or materials
which require use of elevators or stairways, or movement through the Property
entrances or lobby, shall be restricted to hours designated by Landlord. All
such movement shall be under supervision of Landlord and carried out in the
manner agreed between Tenant and Landlord by prearrangement before performance.
Such prearrangement will include determination by Landlord of time, method, and
routing of movement and limitations imposed by safety or other concerns which
may prohibit any article, equipment or any other item from being brought into
the Property. Tenant assumes, and shall indemnify Landlord against, all risks
and claims of damage to persons and properties arising in connection with any
said movement.
15. Landlord shall not be liable for any damages from the stoppage of
elevators for necessary or desirable repairs or improvements or delays of any
sort or duration in connection with the elevator service.
16. Tenant shall not lay floor covering within the Leased Premises without
written approval of Landlord. The use of cement or other similar adhesive
materials not easily removed with water is expressly prohibited.
17. Tenant agrees to cooperate and assist Landlord in the prevention of
canvassing, soliciting and picketing within the Property.
18. During all hours other than regular hours, Landlord reserves the right
to exclude from the Property, all persons who are not known to the Property
security personnel and who do not present a pass to the Property signed by the
Tenant. Each Tenant shall be responsible for all persons for whom Tenant
supplies a pass.
19. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenant, before occupying the Leased
Premises, shall procure and maintain such license or permit and submit it for
Landlord's inspection. Tenant shall at all time comply with the terms of any
such license or permit.
20. Except with the prior written consent of Landlord, Tenant shall not
sell, or permit the sale from the Leased Premises of, or use or permit the use
of any sidewalk or mall area adjacent to the Leased Premises for the sale of
newspapers, magazines, periodicals, theater tickets or any other goods or
merchandise, nor shall Tenant carry on, or permit or allow any employee or
other person to carry on, business in or from the Leased Premises for the
service or accommodation of occupants of any other portion of the Building, nor
shall the Leased Premises be used for manufacturing of any kind, or for any
business or activity other than that specifically provided for in Tenant's
Lease.
21. Tenant shall not install any radio or television antenna, loudspeaker
or other device on the exterior walls of the Building.
22. Tenant shall not use in any space, or in the common areas of the
Building, any handtrucks except those equipped with rubber tires and side
guards or such other material handling equipment as Landlord may approve. No
other vehicles of any kind shall be brought by Tenant into Building or kept in
or about the Leased Premises without prior written approval of Landlord.
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00. Tenant shall store all its trash and garbage within the Leased
Premises until daily removal of same by Tenant to such location in the Building
as may be designated from time to time by Landlord. No material shall be
placed in the Building trash boxes or receptacles if such material is of such
nature that it may not be disposed of in the ordinary and customary manner of
removing and disposing of trash and garbage in the city in which the Leased
Premises is located without being in violation of any law or ordinance
governing such disposal.
24. Tenant shall not permit the use or the operation of any coin operated
machines on the Leased Premises, including, without limitation, vending
machines, video games, pinball machines, or pay telephones without the prior
written consent of Landlord.
25. As used in the Lease, "business days" means Monday through Saturday
(except holidays); "regular hours" means 7:00 a.m. to 6:00 a.m. on weekdays and
9:00 a.m. to 1:00 p.m. on Saturday; and "holidays" means New Years Day, Fourth
of July, Labor Day, Thanksgiving and Christmas, together with such other
holidays designated by Landlord consistent with those holidays designated by
Landlords of comparable office buildings located in the county in which the
Building is located.
26. Landlord desires to maintain in the Property the highest standard of
dignity and good taste consistent with comfort and convenience for Tenants.
Any action or condition not meeting this high standard should be reported
directly to Landlord. Your cooperation will be mutually beneficial and
sincerely appreciated. Landlord reserves the right to make such other and
further reasonable rules and regulation as in its judgement may from time to
time be necessary, for the safety, care and cleanliness of the Leased Premises
and for the preservation of good order therein.
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RR-3
