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Exhibit 10.15
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this ______day of ______________, 1999, by
and between the XXXXX-COLLEGE STATION ECONOMIC DEVELOPMENT CORPORATION, a Texas
non-profit corporation (hereinafter referred to as "LANDLORD"), and DECISIONONE
CORPORATION , a Delaware Corporation (hereinafter referred to as "TENANT").
WHEREAS, the LANDLORD owns or will own certain real property located in
Brazos County, Texas; and
WHEREAS, the LANDLORD wishes to lease to TENANT and TENANT wishes to
lease from LANDLORD, the premises more particularly described herein for
economic development purposes.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the LANDLORD, and TENANT agree as follows:
1. Definitions: As used herein, the terms defined in this Section shall
have the meanings set forth herein.
a. Land: Being a 9.999 acre tract of land
lying and being situated in the
Xxxxxxx Xxxxxx Survey, Xxxxxxxx Xx.
0, Xxxxx, Xxxxx, and being more
particularly described on Exhibit
"A" attached hereto and made a part
hereof for all purposes, together
with all the rights of way,
privileges and appurtenances
thereunto belonging or in anywise
appertaining thereto.
b. Improvements: All buildings, parking facilities
and other improvements on the above
mentioned land and containing
approximately 50,096 square feet.
c. Premises: The land and the Improvements as
defined herein.
2.Term of Lease: The original term of this Lease shall be for a period
of 10 years, commencing on the date specified at the beginning of the Lease with
two (2) five (5) year options to renew at TENANT's discretion on the same terms
and conditions described herein.
Thereafter beginning with the twenty-first (21st) year of this Lease at
TENANT's sole discretion, the Lease term shall automatically be renewed on a
year-to-year basis on the same terms and conditions described herein; provided
however, the rental rate shall be equal to fifty percent (50%) of the then
current commercial rental rate in Xxxxx-College Station. Beginning with the
twenty-first (21st) year of this Lease the Lease structure will become a triple
net lease rather than an absolute net lease and the LANDLORD shall assume full
responsibility for all cost of structural repairs and replacements including but
not limited to the roof and roof membrane,
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building structure, including loading dock, foundation and concrete slab,
parking lot and driveways, HVAC and exterior glass.
3. Rent: TENANT agrees to pay to LANDLORD, in lawful money of the
United States of America throughout the term of this Lease a lease payment of
One Dollar ($1.00) per year payable in advance.
4. Alternative Performance Payment: TENANT agrees to employ the
following number of employees at a payroll amount listed below (the "Performance
Standards"):
LEASE TERM EMPLOYEES ANNUAL PAYROLL
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Commencing at the 12th month 200 employees $ 4,800,000.00
to the 24th month of occupancy
25th month to 36th month 350 employees $ 8,400,000.00
37th month to end of Lease Term 500 employees $12,000,000.00
Should TENANT fall below these Performance Standards in any one
quarter, TENANT shall pay that percentage of Alternative Performance Payment (as
defined below) which is in effect in the quarter wherein said payments are due,
which equals the percentage of TENANT's performance which falls below the
Performance Standards.
Alternative Performance Payment shall equal the value, on the execution
date of the Lease, agreed by the parties to be $12.00 per square foot per year,
payable in monthly installments of $1.00 / SF, increased, after year five (5) of
the Lease Term, on an annual basis by three percent (3%); provided, however,
such Alternative Performance Payment shall never exceed two and no/100 dollars
($2.00) per square foot per month.
BY WAY OF EXAMPLE ONLY: Assume Alternative Performance Payment is
required in the first quarter of year eight (8) of Lease Term. Alternative
Performance Payment shall be calculated as follows:
Quarterly Payroll Commitment: $3,000,000.00 = $12,000,000.00 / 4 quarters
Year 8 - 1st Quarter Actual Payroll: $2,000,000.00
$3,000,000.00 - $2,000,000.00 = $1,000,000.00
$1,000,000.00 / $3,000,000.00 = 33%
Alternative Performance Payment calculation:
Year 8 Monthly Rental = $1.0927 / SF per month
$1.0927 / SF per month x 50,096 SF = $54,739.90 per month
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33% x $54,739.90 per month = $18,064,17 per month for the 1st
quarter of year 8 of the lease term
TENANT's payroll portion of the Performance Standards is to be
calculated on a quarterly basis based upon the last day of the month of the
quarter following twelve (12) months from the date of occupancy of the Premises
by TENANT. TENANT agrees, upon written request from Landlord, to provide to
LANDLORD all employment records reasonably necessary to verify TENANT's
compliance with the provisions of this paragraph.
Notwithstanding anything herein to the contrary, should TENANT fail to
achieve, or having achieved fail to maintain, employee numbers and payroll
amounts at a level equal to or greater than thirty-three percent (33%) of the
Performance Standards described above in any quarter, LANDLORD may notify TENANT
in writing of a default under this provision. Upon receipt of said written
notice TENANT shall have 30 days in which to cure said default. In the absence
of a cure, LANDLORD in its sole discretion may terminate this Lease and TENANT
shall surrender the Premises on ninety (90) days written notice by the LANDLORD
given as required by paragraph 35 hereof. TENANT's correction of this failure
during the ninety (90) day notice provision described above shall not entitle it
to reinstatement of the Lease, unless LANDLORD agrees to such reinstatement, in
its sole discretion.
5. Insurance: Throughout the term of this Lease Agreement, TENANT
shall, at its sole cost and expense, keep the Improvements insured against loss
or damage by fire and against all loss or damage by other risks now or hereafter
embraced by the standard form of extended coverage endorsement regularly
available from major insurers of fire and other hazards, in an amount not less
than one hundred percent (100%) of the then full replacement cost, subject to a
deductible not greater than Fifty Thousand Dollars ($50,000.00) throughout the
term of this Lease. LANDLORD and TENANT shall be named as the insured on the
above described policy.
TENANT, at its sole cost and expense, shall maintain personal injury
and property damage liability insurance against claims for personal injury,
death or property damage occurring in or about the Premises providing protection
during the term of this Lease for not less than One Million Dollars
($1,000,000.00) per occurrence. Such policies issued hereunder shall name the
LANDLORD as an additional insured.
TENANT shall, at all times during the Term of this Lease at its sole
cost and expense, obtain and keep in force Worker's Compensation and Employer
Liability Insurance.
All fire and extended coverage insurance and other insurance carried by
TENANT covering losses arising out of destruction or damage to the Premises or
its contents and all insurance carried covering liability arising from personal
injury, death or property damage shall provide for a waiver of rights and
subrogation against LANDLORD and TENANT on the part of the insurance carrier.
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6. Quiet Enjoyment: So long as the TENANT shall pay the rent, and an
Alternative Performance Payment if applicable, provided for in this Lease, and
shall not have breached any of its material obligations under this Lease, the
LANDLORD covenants that the TENANT may peaceably and quietly have, hold, and
enjoy the Premises for the entire term without hindrance, interruption or
disruption by LANDLORD, LANDLORD's creditors, or any other person having claims
against the LANDLORD or the Premises as a result of LANDLORD's actions. LANDLORD
shall do everything necessary, including taking appropriate legal measures, to
remove any impediment to TENANT's quiet and peaceable enjoyment, so long as such
impediment is the result of LANDLORD's actions and not TENANT's, or any other
person or persons claiming by, through, or under LANDLORD, subject,
nevertheless, to the terms of this Lease.
7. No Guarantees or Warranties: LANDLORD makes no implied or express
warranty of any kind including but not limited to the warranty of fitness for a
particular purpose, warranty of habitability, warranty of merchantability or
warranty of commercial suitability.
8. Taxes and Assessments: In addition to rent, TENANT agrees to pay, as
they become due and payable, and before they become delinquent, all ad valorem
taxes, both general and special assessments and governmental charges lawfully
levied or assessed against the Premises or any part thereof, including
improvements, during the term of this Lease and dues and assessments by means of
deed restrictions and/or owners' associations. TENANT shall pay, in addition to
the amount set forth in the preceding sentence, all taxes and assessments which
are not presently in effect but which may hereinafter be enacted and which would
be chargeable to TENANT as a consequence of the ownership of the Premises if in
fact TENANT were the owner thereof in fee simple at the time of such assessment
of levy. Any exemptions from taxation that the Premises may qualify for shall be
for the TENANT's account. In the event TENANT fails to pay any taxes and
assessments as required by this section, LANDLORD may, at its option, pay such
taxes and assessments, and the amount of such taxes and assessments shall be
charged to TENANT as additional rent and shall become due and payable by TENANT
within thirty days from receipt of LANDLORD's invoice.
9. Triple Net Lease : It is the purpose and intent of LANDLORD and
TENANT that the rent provided in this Lease shall be absolutely net to LANDLORD,
and that TENANT shall pay, without notice or demand, and without abatement,
deduction or setoff and save LANDLORD harmless from and against all costs, taxes
(ad valorem and personal), insurance (including the cost of the insurance set
forth in paragraph 5), expenses of maintenance, repair and replacement, and
other charges and expenses and obligations of every kind and nature whatsoever
relating to the Premises which may arise or become due during the term of this
Lease. If TENANT is required to make any payment or incur any expense as
provided in this Lease and fails to do so, then LANDLORD, at its option, may
make the payment or incur the expense on TENANT's behalf, and the cost thereof
shall be charged to TENANT as additional rent and shall be due and payable by
TENANT within thirty days from receipt of LANDLORD's invoice.
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10. Use: TENANT warrants and represents to LANDLORD that the Premises
shall be used and occupied only for the purpose of a computer hardware and
software technical service support center. Specifically, TENANT will employ
managers, supervisors, and trained service support technicians in the computer
hardware and software field to provide "help desk" functions. These functions
will occur in an "inbound call center environment." The purpose for which the
Premises may be used may be altered, expanded or restricted, provided the
Performance Standards are met, with the prior written consent of the LANDLORD.
TENANT shall occupy the 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. TENANT's use of the Premises shall comply with all
laws, ordinances and regulations applicable thereto. TENANT shall obtain all
governmental licenses and permits necessary to utilize the Premises for its
intended use.
11. Inspection: LANDLORD or its authorized agents shall be allowed
reasonable access to the building, for legitimate purposes, with forty-eight
(48) hours prior notice. LANDLORD shall have the right to use any and all means
which LANDLORD may deem proper to open any door in an emergency .
12. Building Services: TENANT shall pay the cost of all utility
services, including, but not limited to, initial connection charges, all charges
for gas, electricity, water, sanitary and storm sewer service, refuse or garbage
collection and for all electric lights. LANDLORD shall not be required to pay
for any utility services, supplies or upkeep in connection with the Premises.
13. LANDLORD Repairs: LANDLORD shall not be required to maintain or
make any improvements, replacements or repairs of any kind or character to the
Premises during the first twenty years of the term of this Lease. LANDLORD shall
in all instances pursue all remedies for warranty repairs of any nature and if
necessary file appropriate legal action to effectuate said remedies.
14. TENANT Repairs: TENANT shall, for the first twenty years of the
term of this Lease, at its sole cost and expense, maintain, repair and replace
all parts of the Premises and keep the same in good repair and condition,
including, but not limited to, roof, foundation, parking areas, structural
soundness of exterior walls, windows, plate glass, doors, heating, ventilating
and air conditioning systems, down spouts, fire sprinkler system, dock bumpers,
lawn maintenance, pest control and extermination, trash pick-up and removal, and
painting the building and exterior doors.
15. LANDLORD Improvements: Prior to TENANT's occupancy, TENANT will
manage as LANDLORD's agent the construction of all Improvements as set forth in
the Preliminary Plans approved by LANDLORD and TENANT simultaneously with the
execution of this Lease. Within thirty (30) days from the date of this Lease,
TENANT shall have architect prepare and deliver to LANDLORD final plans and
specifications for the construction of the Improvements described in the
preliminary plans. Within five (5) days from receipt by LANDLORD of the final
plans and specifications, LANDLORD shall execute a copy of the xxxxx
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plans and specifications and any change orders, if applicable. LANDLORD's total
contribution shall be Four Million Dollars ($4,000,000.00) and shall be
available to pay any fees and hard and soft costs associated with the
construction of the Project, but excluding by way of example such costs as
marketing, promotion, transportation costs and any employee salaries or
benefits. The TENANT agrees to deposit Three Hundred Thousand Dollars
($300,000.00) into LANDLORD's construction escrow fund to be utilized by
LANDLORD to fund items associated with the construction of the Project, as
described in the preceding sentence. Any expenses over and above $4,000,000.00
due to change orders requested by the TENANT, cost overruns, or original design
costs, shall be at TENANT's cost. Any changes or modifications to the final
plans and specifications after they have been bid shall be made and accepted
only by written change order or agreement signed by LANDLORD and TENANT and
shall constitute an amendment to this Lease. The preliminary plans and the final
plans and specifications (when approved by LANDLORD and TENANT) are incorporated
in this Lease by reference. TENANT, as LANDLORD'S agent, agrees that the
construction of the improvements will be substantially in accordance with the
final plans and specifications. TENANT will make reasonable efforts to assure
that contractor performs its work, in a good and workmanlike manner and in full
compliance with all provisions of federal, state and local authorities having
jurisdiction over the Premises.
16. TENANT's Commitment: The TENANT, prior to occupancy, shall install
in the Premises trade fixtures and personal property valued at approximately Two
Million Two Hundred Thousand and No/100 Dollars ($2,200,000.00).
17. No Transfer: No portion of the Premises or of TENANT's interest in
this Lease may be acquired by any other person or entity, without the express
written permission of LANDLORD, such permission shall not be unreasonably
withheld.
18. LANDLORD's 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 Premises; provided however, TENANT shall have a right of first
refusal in all such contemplated sales, transfers and assignments, except if
such sale, transfer and assignment is to the City of Bryan, Texas and/or Brazos
County, Texas. The LANDLORD shall give written notice to the TENANT of its
intent to sell the Premises (other than to the City of Xxxxx or Brazos County).
Such notice shall specify the price and sales terms of such contemplated sale.
The TENANT shall have thirty (30) days from receipt of notice in which to
exercise its option to purchase on the same sale and purchase terms. Failure by
TENANT to respond within thirty (30) days of such notice shall be deemed a
waiver of such right of first refusal. Any such sale, transfer or assignment
shall operate to release LANDLORD from any and all liabilities arising out of
any act, occurrence or omission relating to the Premises or this Lease arising
after the date of such sale, assignment or transfer. Any subsequent holder of
LANDLORD's estate, whether partial or complete, shall be subject to the terms
and conditions of this Lease.
19. Eminent Domain and Condemnation: If the Premises is taken by
condemnation or the right of eminent domain during the pendency of this Lease
Agreement, either party, upon
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written notice to the other, shall be entitled to terminate the Lease as of the
date of the taking of possession by Condemnor.
It is understood in the event of the termination of this Lease due to
said condemnation, TENANT shall have no claim against LANDLORD for the value of
any unexpired term of its Lease. LANDLORD shall have no claim against TENANT for
any rental payments for the unexpired term of the Lease. LANDLORD shall be
entitled to receive and retain the amounts awarded for the Condemnation of the
Premises as the fee owner. TENANT shall have the right to claim and recover from
the condemning authority, such compensation as may be separately awarded or
recoverable by TENANT in TENANT's own right to compensate it for its leasehold
interest.
20. Signs: LANDLORD shall permit TENANT to erect any signs designating
its business or products on the Premises as long as such signs shall conform to
applicable public zoning, city ordinances or other laws and covenants of record.
21. RELEASE: TENANT AND ITS ASSIGNS ASSUME FULL RESPONSIBILITY FOR THE
USE OF THE PREMISES, AND HEREBY INDEMNIFIES AND HOLDS HARMLESS THE LANDLORD, ITS
OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL
CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER, INCLUDING THE
COST OF DEFENSE THEREOF, ATTORNEYS' FEES AND EXPENSES, FOR ANY INJURY TO OR
DEATH OF ANY PERSON (WHETHER EMPLOYEES OF EITHER PARTY OR OTHER THIRD PARTIES)
AND ANY LOSS OF OR DAMAGE TO PROPERTY OR BUSINESS (WHETHER PROPERTY OF EITHER OF
THE PARTIES HERETO, THEIR EMPLOYEES, OR OF THIRD PARTIES) THAT IS CAUSED BY OR
ALLEGED TO BE CAUSED BY, ARISING OUT OF, OR IN CONNECTION WITH AN ACT OR
OMISSION OF TENANT, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS RELATIVE TO
THE USE OF THE PREMISES, THE CONDITION OF THE PREMISES, WHETHER PATENT OR
LATENT, OR ANY BREACH OR DEFAULT IN PERFORMANCE OF ANY OBLIGATION OF TENANT
HEREUNDER.
Insurance covering this indemnity requirement shall be provided by
TENANT. Such insurance shall provide for bodily injury or death in the minimum
amount of $1,000,000.00 per occurrence along with property damage insurance in
the minimum amount of $1,000,000.00 per occurrence. LANDLORD agrees that the
TENANT's obligation to indemnify the LANDLORD herein shall be limited to the
insurance policy amounts stated herein. Such insurance coverage will name the
LANDLORD, its officers and directors, as additional insureds. The TENANT shall
present to LANDLORD a policy or certificate of such insurance with endorsements
reflecting this contractual indemnity, a waiver of subrogation and additional
insured/loss payee as provided for herein. There shall be no exclusion in the
policy for LANDLORD having secured its own insurance. The policy shall require
written notice to be given the LANDLORD at least fifteen (15) days prior to any
cancellation of the policy before its expiration.
22. Partial Damage to Premises: TENANT shall notify LANDLORD in writing
as soon as practicable upon the occurrence of any damage to the Premises. If the
Premises are only
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partially damaged, partially damaged being defined as thirty percent (30%) or
less of the full insurable value of the Improvements immediately prior to the
casualty, and if the proceeds received by LANDLORD from the insurance policies
described in paragraph 5 are sufficient to pay for the necessary repairs to the
Improvements, this Lease shall remain in effect and TENANT shall repair the
damage as soon as reasonably possible. LANDLORD shall assign all insurance
proceeds received as a result of such damage to TENANT to be used to rebuild the
Premises. LANDLORD shall have no obligation to repair or rebuild Tenant's
furniture, fixtures, equipment or personal property contained within the
Premises. If the insurance proceeds received by LANDLORD are insufficient to
cover the entire cost of repair of the Premises, or if the damage was due to a
cause not covered by the insurance policies which TENANT maintains pursuant to
paragraph 5, LANDLORD may elect either to (a) have the TENANT repair the damage
with reasonable diligence in which case this Lease shall remain in full force
and effect, or (b) terminate this Lease as of the date the damage occurred.
LANDLORD shall notify TENANT of its election within sixty (60) days after
receipt of notice of the damage. In the event that LANDLORD elects to have the
damage repaired, LANDLORD shall assign the insurance proceeds to the TENANT and
TENANT shall pay the difference between the actual cost of repair and any
insurance proceeds received by LANDLORD. If LANDLORD elects to terminate the
Lease, LANDLORD shall be entitled to any insurance proceeds paid for such damage
to the Improvements.
23. Total or Substantial Destruction: In the event that the Premises
are totally or substantially destroyed by any cause whatsoever, total or
substantial damage being defined as in excess of thirty percent (30%) of the
full insurable value of the Improvements prior to the casualty, this Lease shall
terminate as of the date the destruction occurred regardless of whether LANDLORD
receives any insurance proceeds. If the Premises can be rebuilt within six (6)
months following the date of destruction, and TENANT desires to have the
Improvements rebuilt, LANDLORD may elect to have the TENANT rebuild the
Premises, to the extent of any proceeds received by LANDLORD from policies of
insurance, in which case, this Lease shall remain in full force and effect. In
such event, LANDLORD shall assign to TENANT any such insurance proceeds.
LANDLORD shall notify TENANT of such election within thirty (30) days after the
occurrence of total or substantial destruction. TENANT shall pay the difference
between the actual cost of rebuilding and any insurance proceeds received by
LANDLORD and assigned to TENANT. Should LANDLORD elect not to rebuild, all
insurance proceeds from policies described in paragraph 5 insuring the
Improvements hereof shall be paid to LANDLORD.
In the event that this Lease is terminated pursuant to the provisions
of paragraphs 22 and 23, the rent due by TENANT shall be abated for the
unexpired portion of the Lease, effective as of the date the destruction
occurred.
24. Holding Over: In the event TENANT remains in possession of the
Premises after the twentieth year of the Lease term without the execution of a
Lease Amendment, TENANT shall be deemed to be occupying the Premises as a tenant
from month to month at a rental rate in the year of the holdover plus fifty
percent (50%) of such amount and otherwise subject to all the conditions,
provisions and obligations of this lease insofar as the same are applicable to a
month to month tenancy.
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25. Default and Remedies by TENANT: The following shall be deemed to be
events of default by TENANT under this Lease:
(a) TENANT shall fail to pay when due any installment of
rent, an Alternative Performance Payment or any other
payment required pursuant to this Lease.
(b) TENANT shall vacate or abandon the Premises.
(c) TENANT 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.
(d) TENANT shall make a transfer in fraud of creditors or
shall make an assignment for the benefit of
creditors.
(e) TENANT shall do or permit to be done any act which
results in a lien being filed against the Premises,
which is not removed within thirty (30) days of its
filing. TENANT shall immediately notify LANDLORD of
any lien filing and provide a recorded Release of
Lien within the time provided above.
(f) The liquidation, termination or dissolution, (but not
sale, merger or consolidation) of TENANT.
(g) TENANT shall be in default of any other term,
provision or covenant of this Lease, other than as
specified in subparagraph (a) through (f) above, and
if such default is not cured within thirty (30) days
after written notice thereof from LANDLORD to TENANT.
26. Remedies for TENANT's Defaults: Upon the occurrence of any event of
default set forth in this Lease, which is not cured within thirty days after
receipt of written notice of said alleged default by TENANT from LANDLORD,
providing said default can be cured within said thirty day period. LANDLORD
shall have the option to pursue any one or more of the following In the event
that TENANT is making reasonable efforts to cure a default which cannot be cured
within a thirty day period the cure period will be extended as appropriate. :
(a) LANDLORD may enter upon and take possession of the
Premises and expel or remove TENANT and any other
person who may be occupying all or any part of the
Premises and relet the Premises on behalf of TENANT
and receive the rent directly by reason of such
reletting. TENANT agrees to pay LANDLORD upon demand
any deficiency that
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may arise by reason of any reletting of the Premises
at a rental rate less than the rent in effect in the
year of default; further, TENANT agrees to reimburse
LANDLORD for any expenditures made by it in order to
relet the Premises, including, but not limited to,
repair costs Arising from occurrences other than
normal wear and tear.
(b) LANDLORD may enter upon the Premises and perform
TENANT's obligations under the 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.
(c) LANDLORD may terminate this Lease, in which event
TENANT shall immediately surrender the Premises to
LANDLORD, and if TENANT fails to surrender the
Premises, LANDLORD may, without prejudice to any
other remedy which it may have for possession or
arrearages in rent and/or Alternative Performance
Payment, enter upon and take possession of the
Premises and expel or remove TENANT and any other
tenant who may be occupying all or any part of the
Premises . TENANT agrees to pay on demand the amount
of all loss and damage which LANDLORD may suffer due
to the termination of this Lease under this paragraph
26 including, without limitation, loss and damage due
to the failure of TENANT to maintain and/or repair
the Premises as required hereunder and/or due to the
inability of LANDLORD to relet the Premises on
satisfactory terms or otherwise.
(d) Provided that TENANT's default under paragraph 25
above is for failure to pay rent and/or Alternative
Performance Payment, LANDLORD may, prevent TENANT
from entering the Premises by changing the door
locks. If LANDLORD changes the door locks, LANDLORD
shall place a written notice on the front door of the
Premises, stating the name and address or telephone
number of an individual or company from which a new
key may be obtained by TENANT; provided, however,
that (i) the new key needs to be provided only during
LANDLORD's regular business hours, and (ii) LANDLORD
may condition delivery of the new key upon TENANT's
payment of all rent then due. Costs and expenses
incurred by LANDLORD in exercise of its right
pursuant to this paragraph 26(d) shall be deemed to
be expenditures and damages recoverable from TENANT
Pursuant to (a), (b) or (c) of this paragraph 26.
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
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accordance with paragraph 35 below, and no other act or omission of LANDLORD
shall be construed as a termination of this Lease.
27. Remedies Cumulative: All rights and remedies of LANDLORD and TENANT
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.
28. Mitigation of Damages: With respect to the provisions of any laws
of the State of Texas or of this Lease which require that Landlord use
reasonable efforts to relet the Premises, it is understood and agreed that the
following shall apply in determining whether such efforts by LANDLORD to relet
are reasonable:
(a) LANDLORD may elect to lease other comparable,
available space it may own before reletting the
Premises;
(b) LANDLORD may decline to incur out-of-pocket costs to
relet the Premises, other than customary leasing
commissions and legal fees for the negotiation of a
lease with a new tenant;
(c) LANDLORD may decline to relet the Premises to a
prospective tenant if the nature of such prospective
tenant's business is not consistent with the zoning
for the area in which the Premises is situated or
with the type of business in that area;
(d) LANDLORD may decline to relet the Premises to a
prospective tenant, the nature of whose business may
have an adverse impact upon the manner in which the
Premises is operated even though such prospective
tenant may have a good credit rating;
(e) Before reletting the Premises to a prospective
tenant, LANDLORD may require the prospective tenant
to demonstrate the same financial capacity that
LANDLORD would require as a condition to leasing
other space it may own to the prospective tenant; and
(f) Listing the Premises with a broker in a manner
consistent with subsections (a) through (f) above
shall constitute prima facie evidence of reasonable
efforts on the part of LANDLORD to relet the
Premises.
29. Default by LANDLORD: The following shall be deemed events of default
by the LANDLORD under this Lease:
(a) LANDLORD shall fail to construct the Improvements
(for a reason not the fault, in whole or in part, of
TENANT); provided however, failure to complete the
Improvements on the time schedule set
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forth in the construction documents for a reason not
the fault of the LANDLORD, shall not be deemed a
default.
(b) LANDLORD shall fail to perform its obligations
pursuant to paragraph 6 hereof.
(c) The City of Bryan, Texas and Brazos County, Texas
fail to approve tax abatement for the TENANT in the
following amounts:
Tax Year Percentage of Increased Value over
January 1, 1999 Value to be Abated
----------------------------------
2000 90%
2001 80%
2002 70%
2003 60%
2004 50%
2005 40%
2006 30%
2007 20%
2008 10%
2009 10%
30. Remedies of TENANT: Upon an event of default as defined in paragraph
29 above, TENANT shall have the following remedies:
(a) Should LANDLORD fail to construct the Premises, for a
reason not the fault, in whole or in part, of the
TENANT, as outlined in paragraph 29(a) hereof, or
breach its obligation under paragraph 6 hereof,
TENANT shall have a right to terminate the Lease and
shall be entitled to recover direct, but not
incidental, consequential or special damages
notwithstanding their foreseeability, from the
LANDLORD.
(b) If the TENANT is unable to secure tax abatement as
described above, LANDLORD shall pay to the taxing
authorities, during the first ten (10) years of this
Lease, ad valorem taxes equal to that percentage of
taxes, as indicated in paragraph 29 (c) above, that
would have been abated had such tax abatement been
approved.
31. Default Prior to Completion: Damages: TENANT acknowledges and agrees
(1) that LANDLORD would not purchase the Premises and construct the improvements
thereon except for TENANT's agreement to occupy the Premises pursuant to this
Lease and to pay the rent and satisfy the Performance Standards provided herein,
and (2) that the improvements to be constructed on the Premises have been
designed by TENANT for its own particular and unique
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use. Therefore, if TENANT breaches this Lease prior to TENANT's occupancy of the
Premises, TENANT shall pay to LANDLORD monthly, the sum of one dollar ($1.00)
per square foot per month calculated on the completed building size, until such
time as (i) LANDLORD can relet the Premises to a tenant of financial capacity
similar to TENANT that (a) can meet the Performance Standards set forth herein
or (b) will enter into a long term lease at the then prevailing commercial
rental rates for space in Xxxxx-College Station or (ii) LANDLORD sells the
Premises to a third party for an amount that exceeds the then unpaid balance on
the Note the EDC executed to finance the construction of the Premises.
32. LANDLORD's Lien: LANDLORD shall have at all times a valid security
interest to secure payment of all rentals, Alternative Performance Payments, and
other sums of money becoming due hereunder from TENANT and to secure payment of
any damages or loss which LANDLORD may suffer by reason of the breach by TENANT
of any covenant, agreement or condition contained herein, upon all goods, wares,
equipment, fixtures, furniture, improvements and other personal property (herein
the "Personalty") of TENANT presently, or which may hereafter be, situated in
the Premises, and all proceeds therefrom, and such Personalty shall not be
removed therefrom without the consent of LANDLORD until all arrearages in rent
or Alternative Performance Payments as well as any and all other sums of money
then due to LANDLORD hereunder shall first have been paid and discharged and all
covenants, agreements and conditions hereof have been fully compiled with and
performed by TENANT. Upon the occurrence of an event of default by TENANT,
LANDLORD may, in addition to any other remedies provided herein or by law, enter
upon the Premises and take possession of the Personalty situated in the
Premises, without liability for trespass or conversion, and sell the same at
public or private sale, with or without having the Personalty at the sale, after
giving TENANT reasonable notice of the time and place of any public sale or of
the time after which any private sale is to be made, at which sale LANDLORD may
purchase unless otherwise prohibited by law. Unless otherwise provided by law,
and without intending to exclude any other manner of giving TENANT reasonable
notice, the requirement of reasonable notice shall be met if such notice is
given in the manner prescribed in paragraph 35 of this Lease at least ten (10)
days before the time of sale. Any public sale made pursuant to the provisions of
this paragraph shall be deemed to have been a public sale conducted in a
commercially reasonable manner if held in the Premises or where the Personalty
is located after the time, place and method of sale and a general description of
the types of property to be sold have been advertised in a daily newspaper
published in Brazos County, Texas, for five (5) consecutive days before the date
of the sale. The proceeds from any such disposition, less any and all expenses
connected with the taking of possession, holding and selling of the Personalty
(including reasonable attorney's fees and expenses), shall be applied as a
credit against the indebtedness secured by the security interest granted in this
paragraph. Any surplus shall be paid to TENANT or as otherwise required by law;
TENANT shall pay any deficiencies forthwith. Upon request by LANDLORD, TENANT
agrees to execute and deliver to LANDLORD a financing statement in form
sufficient to perfect the security interest of LANDLORD in the aforementioned
Personalty and proceeds thereof under the provisions of the Uniform Commercial
Code in force in the State of Texas.
33. Waiver: No failure by either party to insist upon the other party's
strict performance of any provision hereof or to exercise any right, power, or
remedy, and no
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acceptance of full or partial rent during the continuance of any such breach,
shall constitute a waiver of any such breach or of the right then or thereafter
to enforce such provision. No provision of this Lease, and no breach hereof,
shall be waived, altered, or modified except by written instrument executed by
both parties. No waiver of any breach shall affect or alter this Lease, but each
and every provision hereof shall continue in full force and effect with respect
to any other existing or subsequent breach thereof.
34. End of Term: TENANT shall, at the termination of this Lease,
whether by lapse of time or otherwise, peaceably and quietly deliver to the
LANDLORD all of the Premises in good condition less wear and tear.
35. Notices: Any notice required, under the terms of this Lease or
under any legal requirement, shall be in writing and mailed by overnight or
certified mail, return receipt requested, postage prepaid, addressed to the
party intended to be notified at the following address (or such other address as
the receiving party may notify to the sending party), and notice given as
aforesaid shall be sufficient service thereof and shall be deemed given as of
the date of receipt.
All notices to the LANDLORD shall be sent to:
President/CEO
Bryan-College Station Economic Development Corporation
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
All notices to the TENANT shall be sent to:
DecisionOne Corporation
00 Xxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Corporate Real Estate
36. Signature Corporate or Partnership Authority: Both TENANT and
LANDLORD shall be required to deliver adequate assurances, such as a Certificate
of Incumbency, to certify that the signatories to this Lease possess the
necessary authority to bind the entity which they represent. TENANT shall
deliver to LANDLORD a Certificate of the Secretary of State of the State of
Texas evidencing it is licensed to do business in the State of Texas.
37. Originals: The parties hereto shall execute seven original
signature copies of this Lease.
38. Governing Law: This Lease shall be construed under and in
accordance with the laws of the State of Texas and the laws of the United States
Of America as applicable to transactions within the State of Texas.
This Lease is performable in Brazos County, Texas.
39. Amendment: This Lease may not be altered, waived, amended or
extended except by an instrument in writing signed by LANDLORD and TENANT.
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40. Attorneys' Fees: In the event TENANT or LANDLORD defaults in the
performance of any of the terms, agreement or conditions contained in this Lease
and TENANT or LANDLORD commences legal action of any kind to enforce the terms
and conditions of the Lease, the prevailing party in such litigation shall be
entitled to collect from the other party all costs, expenses and attorney's fees
incurred in connection with such action.
41. Publication: TENANT hereby agrees that LANDLORD shall have the
right, but not the obligation, at no cost to TENANT, to publicize and/or
advertise the execution of this Lease and the related transaction.
42. Miscellaneous Provisions: If any provision of this Lease shall be
determined to be void by any court of competent jurisdiction, then such
determination shall not affect any other provision of this Lease, all of which
shall remain in full force and effect. This Lease Agreement shall be binding
upon and inure to the benefit of the LANDLORD and TENANT and their respective
successors and assigns.
XXXXX-COLLEGE STATION ECONOMIC DECISIONONE CORPORATION
DEVELOPMENT CORPORATION
By:
---------------------------------- --------------------------------
Xxxxx X. Xxxxxx, Chairman Printed Name:
----------------------
Title:
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