GROUND LEASE
This Ground Lease (this "LEASE") is entered into to be effective for all
purposes as of June 1, 1998, by INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE,
INC., a Texas corporation ("LESSOR"), and FIRST COMMAND FINANCIAL CORPORATION, a
Texas corporation ("LESSEE").
ARTICLE I.
DEFINITIONS
Sec. 1:1. DEFINITIONS. The following terms, as used in this Lease, shall
have the following meanings unless the context indicates otherwise:
A. COMMENCEMENT DATE. June 1, 1998.
B. LEASE. This Ground Lease and all amendments thereto hereafter
entered into.
C. LEASE TERM. The primary term hereafter stated plus all renewal
and extension periods, if any, which validly go into effect at the end of such
primary term.
D. LEASE YEAR. Each period within the Lease Term commencing on
June 1 and ending on the next succeeding May 31. The first Lease Year will
commence on the Commencement Date and end on May 31, 1999.
E. LEASED PREMISES. That portion of the real estate located in Fort
Worth, Tarrant County, Texas, which is identified as "Parking Garage" on the
site plan attached hereto as EXHIBIT A, together with all improvements now or
hereafter located upon such real estate. The Leased Premises are part of a
tract of land described in EXHIBIT B attached hereto. Within sixty (60) days
after the date of this Lease, Lessor shall, at Lessor's expense, cause to be
prepared and furnished to Lessee a current plat of survey (the "SURVEY") of the
Leased Premises prepared by a duly licensed Texas land surveyor. The metes and
bounds description of the Leased Premises as reflected on the Survey shall be
substituted for the site plan set forth in EXHIBIT A attached hereto.
F. PERMITTED USE. The construction, operation, and lease of a
parking garage and related facilities.
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ARTICLE II.
GRANT OF LEASE
Sec. 2:1. GRANT TO LESSEE. In consideration of the mutual covenants and
agreements contained in this Lease and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the parties
hereto, Lessor hereby Leases to Lessee and Lessee hereby Leases from Lessor the
Leased Premises upon the terms, provisions, and conditions set forth herein.
Sec. 2:2. TITLE AND CONDITION. The Leased Premises are leased subject to
the existing state of the title thereof as of the date of this Lease; to all
encroachments thereon or over any street or adjoining property; to any state of
facts which an accurate survey or physical inspection thereof might show; to all
zoning regulations, restrictions, rules, and ordinances, and all building
restrictions and other laws and regulations now in effect or hereafter adopted
by any governmental authority having or acquiring jurisdiction; to the revocable
nature of the right, if any, to maintain vaults, vault spaces, basement and
subbasement spaces, areas, or signs beyond the building lines; and, as regards
improvements, to their present state and condition and without representation or
warranty of any kind by Lessor. Lessee represents and warrants that Lessee has
examined and become fully familiar with the state of title to the Leased
Premises immediately prior to the execution of this Lease and the title
examination made for Lessor in connection with its acquisition of title, and
Lessee has found such title to be satisfactory. Lessor makes no representations
or warranties, express or implied, to Lessee with respect to the suitability of
the Leased Premises for any particular purpose or use or with respect to the
physical condition (including, but not limited to, surface and subsurface soil
conditions) of the Leased Premises or whether the Leased Premises are located in
a flood plain or other area subject to the hazard of flooding, and Lessee
represents that it has made its own independent and full investigation in this
regard.
Sec. 2:3. COVENANT OF QUIET ENJOYMENT. So long as Lessee complies with
all of the provisions of this Lease, Lessor covenants that Lessor will not
interfere with the peaceful and quiet occupation and enjoyment of the Leased
Premises by Lessee. If Lessor fails to comply with this covenant, Lessee may
seek appropriate injunctive relief but Lessee may not terminate this Lease or
xxxxx or offset against any rent or other payments owing to Lessor under this
Lease. In the event Lessor assigns or mortgages Lessor's interest in the Leased
Premises, it is understood and agreed that Lessor may not be held liable for any
breach of this covenant of quiet enjoyment occasioned by acts or omissions of
any assignee or successor to the interest of Lessor.
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ARTICLE III.
TERM
Sec. 3:1. PRIMARY TERM. Subject to Lessee's compliance with all of the
provisions of this Lease and except as otherwise provided herein, Lessor agrees
to Lease the Leased Premises to Lessee for a primary term of ninety-nine (99)
years beginning on the Commencement Date and continuing until May 31, 2097
(unless sooner terminated as herein provided). Any occupancy of the Leased
Premises by Lessee prior to the Commencement Date shall be subject to all of the
terms and provisions of this Lease except only those requiring the payment of
rent.
ARTICLE IV.
PAYMENT OBLIGATIONS
Sec. 4:1. BASIC RENT. From and after the Commencement Date and continuing
throughout the balance of the Lease Term, Lessee shall pay to Lessor at Lessor's
address in Tarrant County, Texas, shown at the end of this Lease (or at such
other address as may be specified by written notice from Lessor to Lessee) a
minimum guaranteed rental ("BASIC RENT") of $1.00 per Lease Year without prior
notice or demand and without any deduction, offset, or defense, payable as
follows: Rent for the first Lease Year of the Lease Term shall be due and
payable on or before the Commencement Date and a like annual installment shall
be due and payable on or before the first day of each succeeding Lease Year
during the Lease Term.
Sec. 4:2. ADDITIONAL RENT. Other provisions of this Lease require Lessee,
under certain circumstances, to pay additional sums of money to Lessor or
others. For all purposes of this Lease, such sums of money will be deemed to be
Additional Rent (herein so called) owing by Lessee to Lessor, and in the event
of Lessee's failure to pay such sums when due, Lessor may exercise all rights,
powers, and remedies provided herein or by law or equity or otherwise in the
case of Lessee's failure to pay the Basic Rent.
Sec. 4:3. PAYMENT OF RENT. All sums payable by Lessee to Lessor as rent
(either as Basic Rent or as Additional Rent) are to be made by check payable to
the order of Lessor. Lessor may change the party to the order of whom any such
checks are to be made payable, or the address to which such checks are to be
mailed, by giving written notice to such effect to Lessee at least ten (10) days
prior to the effective date of such change.
Sec. 4:9. UTILITIES. During the Lease Term, Lessee shall be solely
responsible for and shall pay as they become due all charges for water, sewer
usage, gas, electricity, power, heat, telephone or other communication service,
garbage disposal, and all other utility or similar services used, rendered,
supplied, or consumed in, upon, or in connection with the Leased Premises.
Lessee shall, at Lessee's sole expense and risk, arrange for installation or
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construction of, repair and maintain, and secure all necessary permits,
licenses, or other authorizations required for the pipes, conduits, tubes,
wires, and other appliances or equipment necessary to furnish the utilities and
services now or hereafter provided to the Leased Premises. Lessor shall have no
duty or responsibility to Lessee for the stoppage or interruption of such
utilities or services.
Sec. 4:5. TAXES. Lessee shall pay as they become due all taxes, charges,
levies, and assessments at any time levied or assessed against the Leased
Premises (including, without limitation, any improvements located on the Leased
Premises) by any governmental taxing authority. During the Lease Term, Lessee
shall also pay as they become due all taxes, charges, levies, and assessments
levied or assessed by any governmental authority against any leasehold interest
or personal property of Lessee placed in, on, or about the Leased Premises, and
Lessee shall further pay as they become due all taxes, charges, assessments, and
levies (including without limitation franchise, sales, excise, and use taxes) in
any way stemming from or connected with Lessee's business operations upon the
Leased Premises. Lessee shall provide Lessor with paid tax receipts no later
than ten (10) days prior to the date on which the taxes become delinquent. Such
taxes, charges, levies, and assessments shall be prorated on a calendar year,
per diem basis between Lessor and Lessee for the year in which this Lease
commences and the year in which this Lease terminates. Lessee may, at Lessee's
sole cost and expense, if Lessee in good faith believes that any tax, charge,
levy, or assessment payable by it shall be invalid, excessive, or unenforceable
in whole or in part, protest against and contest the validity, amount, or
enforceability of any such tax, charge, levy, or assessment. In such case,
Lessee shall comply with all requirements of law as to conditions precedent in
making any contest, and Lessee covenants to protect Lessor and the Leased
Premises against foreclosure of any lien resulting from the imposition of any
such tax, charge, levy, or assessment which Lessee may contest.
Sec. 4:6. INSURANCE; INDEMNIFICATION.
A. LIABILITY INSURANCE. During the Lease Term, Lessee shall, at
Lessee's sole expense, carry and maintain comprehensive broad form general
public liability insurance covering the Leased Premises and the business
operations conducted upon the Leased Premises (including business operations
conducted by Lessee's licensees, concessionaires, and permitted sublessees)
providing coverage in the minimum amount of $1,000,000.00 against liability for
injury to or the death of any number of persons arising out of any one accident
or occurrence, and property damage insurance in the minimum amount of
$100,000.00.
B. CASUALTY INSURANCE. Throughout the Lease Term, Lessee, at its
sole cost and expense, shall keep or cause to be kept insured for the mutual
benefit of Lessor and Lessee, all improvements now or hereafter located on,
under, or appurtenant to the Leased Premises against loss or damage by fire and
such other risks as are now or hereafter included in an extended coverage
endorsement in common use in the locality where the Leased Premises are
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located for projects of similar size and quality, including, without
limitation, hail, lightning, windstorm, vandalism, boiler, explosion, and
malicious mischief coverage. Such improvements shall include, without
limitation, all buildings at any time located on, under, or appurtenant to
the Leased Premises. The amount of such insurance coverage shall be
sufficient to prevent either Lessor or Lessee from becoming a co-insurer
under the provisions of the policy(ies), but in no event shall the amount be
less than 100% of the full replacement cost of all improvements (excluding,
however, the cost of replacing excavations and foundations but without
deduction for depreciation), hereinafter referred to as the "FULL INSURABLE
VALUE". If any dispute as to whether the amount of insurance complies with
the above cannot be resolved by agreement between Lessor and Lessee, Lessor
may not more than every year during the Lease Term request either the carrier
of the insurance then in force or a mutually acceptable insurance consultant
to determine the Full Insurable Value and the resulting determination shall
be conclusive between the parties for the purposes of this paragraph. On
Lessor's notice of demand, Lessee shall include the holder of any mortgage or
deed of trust on the Leased Premises as a loss payee as its interest may
appear. All polices of fire and extended coverage insurance required by this
paragraph shall provide that the proceeds be paid to Lessee, and such
proceeds shall be deemed to be held in trust by Lessee to be applied towards
the repair, restoration, and/or reconstruction of improvements.
C. BUILDER'S RISK INSURANCE. Before commencement of construction of
any improvements to be placed on the Leased Premises, Lessee shall procure and
shall maintain in full force until completion and acceptance of the completed
improvements, "all risks" builder's risk insurance including vandalism and
malicious mischief, in form and with a company reasonably acceptable to Lessor,
covering improvements in place and all material and equipment at the job site
furnished under contract, but excluding contractor's and subcontractors' tools
and equipment and property owned by the contractor's or subcontractors'
employees.
D. OTHER INSURANCE. Lessee shall also keep or cause to be kept in
force such other insurance and in such amount as may from time to time be
reasonably required by Lessor against other insurable hazards which at the time
are commonly insured against in the case of premises similarly situated, due
regard being or to be given to the size and type of any improvements, their
construction, and the use and occupancy of the Leased Premises.
E. GENERAL PROVISIONS APPLICABLE TO INSURANCE. Lessee shall furnish
Lessor with the policies evidencing that the insurance required by this Lease is
in full force and effect and stating the terms thereof. However, Lessee may, in
lieu of original policies of insurance, deliver to Lessor certificates of
insurance evidencing all such coverage or copies of all original insurance
policies or endorsements duly authenticated by the issuing company. All
insurance coverage shall be placed in companies reasonably acceptable to Lessor
and authorized to do business in the State in which the Leased Premises are
located and shall name as insured Lessor, Lessee, and such other persons as may
be designated by Lessor, as their interests may appear. All such policies shall
be nonassessable and shall contain language, to the extent obtainable, to
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the effect that (1) any loss shall be payable notwithstanding any act or
negligence of Lessor or Lessee that might otherwise result in a forfeiture of
the insurance, (2) the policies are primary and non-contributing with any
insurance that may be carried by Lessor, and (3) the policies cannot be
cancelled or materially changed except after thirty (30) days prior written
notice by the insurer to Lessor.
F. WAIVER OF SUBROGATION. For the purpose of waiver of subrogation,
anything in this Lease to the contrary notwithstanding, Lessor, for itself and
its agents, employees, successors, and assigns, releases and waives unto Lessee,
its personal representatives, agents, employees, successors, and assigns, and
Lessee, for Lessee and Lessee's personal representatives, agents, employees,
successors, and assigns, releases and waives unto Lessor, its agents, employees,
successors, and assigns, all right to claim damages for any injury, loss, cost,
or damage to persons or to the Leased Premises or to any building, buildings, or
other improvements, or the contents and property located therein or thereon,
which is occasioned by fire, explosion, accident, occurrence, or condition in,
on, or about the Leased Premises or any other casualty, the amount of which
injury, loss, cost, or damage has been paid either to Lessor, Lessee, or to any
other person or entity under the terms of any fire, extended coverage, public
liability, or other policy of insurance, to the extent such releases and waivers
are permitted under applicable law. All policies of insurance obtained under
this Lease shall contain or be endorsed to contain a provision whereby the
insurer thereunder waives all rights of subrogation against Lessor and Lessee.
However, in the event that as a result of the foregoing it becomes impossible
for Lessee, after endeavoring to do so with due diligence, to procure fire
insurance with extended coverage provisions customarily included in fire
insurance policies with provisions for waiver of subrogation against Lessor,
then the foregoing provision for waiver of subrogation will be deemed
inoperative except as follows. In the event that such policies are procurable
but Lessee will be required to pay an additional premium by reason of such
waiver of subrogation, then Lessee agrees to pay such excess premium cost. In
the event Lessee is unable to procure insurance with a waiver of subrogation,
Lessor may attempt to procure such insurance for Lessee at Lessee's cost.
G. EXCULPATORY CLAUSE. Lessor and Lessor's agents and employees
will not be liable for, and Lessee waives all claims for, damage to person or
property sustained by Lessee or any person claiming through Lessee resulting
from any accident or occurrence in or upon the Leased Premises, including
without limitation such claims for damage resulting from: (1) any equipment or
appurtenances functioning improperly; (2) Lessor's failure to keep the Leased
Premises in repair; (3) injury done or occasioned by wind, rain, snow, ice, or
other elements; (4) any defect in or failure of plumbing, heating, or air
conditioning equipment, electric wiring, or installation thereof, gas, water,
steam pipes, stairs, porches, railings, or walks; (5) broken glass; the backing
up of any sewer pipe or downspout; the bursting, leaking or running of any tank,
tub, washstand, toilet, waste pipe, drain, or any other pipe or tank in, upon,
or about the Leased Premises; the escape of steam or hot water; (6) water, snow,
or ice being upon or coming through the roof, skylight, trapdoor, stairs, walks,
or any other place
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upon or near any building or premises or otherwise; (7) the falling of any
fixture, plaster, or stucco; and (8) any act, omission, or negligence of
co-tenants or of other persons or occupants of the Leased Premises or of
adjoining or contiguous buildings or of owners of adjacent or contiguous
property or of Lessor or Lessor's agents, employees or invitees. Lessee
hereby covenants and agrees to indemnify and hold Lessor harmless from and
against all claims, demands, actions, damages, costs, expenses, and
attorneys' fees in connection with the loss of life, personal injury, and/or
damage to property in any way connected with the Leased Premises or the use
or condition or occupancy thereof, or occasioned wholly or in part by any act
or omission of Lessee or any other person, excluding only any injury, loss,
or damage due to the gross negligence or willful misconduct of Lessor. In
the event Lessor, without fault on Lessor's part, is made a party to any
litigation commenced by or against Lessee or any other person in connection
with any of the matters covered herein, then Lessee shall and must protect
and hold Lessor harmless and shall pay all costs, expenses, and reasonable
attorneys' fees incurred by Lessor in connection therewith.
ARTICLE V.
USE AND MAINTENANCE OBLIGATIONS
Sec. 5:1. USE OF LEASED PREMISES.
A. PERMITTED USE. The Leased Premises are Leased by Lessor to
Lessee, and Lessee must use the Leased Premises, only for the Permitted Use and
for no other purposes or uses whatsoever without the prior written consent of
Lessor. Lessor hereby agrees to accept the Leased Premises as completely
suitable for such purposes. Lessee shall cause to be fully constructed on the
Leased Premises, at Lessee's sole cost and expense and within eighteen (18)
months after the Commencement Date, a four (4) story parking garage (the
"PROJECT"), all in accordance with applicable zoning ordinances, any applicable
restrictive covenants and the plans for the Project prepared by Lessee and
approved in writing by Lessor. Lessor shall have the right to approve the
location of all such improvements including, without limitation, all buildings,
signs, and driveways. Lessee represents that the Leased Premises are properly
zoned for its intended purpose under the applicable zoning ordinance (the
"ZONING ORDINANCE") and Lessee represents to Lessor that Lessee has conducted
its own independent investigation of the requirements of the Zoning Ordinance
and any applicable restrictive covenants, as same relate to the Leased Premises,
and Lessee's development, use, operation, and occupancy thereof, and Lessee has
satisfied itself and represents to Lessor that the contemplated development,
use, operation, and occupancy of the Leased Premises will not violate the Zoning
Ordinance or any applicable laws, ordinances, regulations, or restrictive
covenants. Except as otherwise specifically provided herein, Lessee shall use
the Leased Premises solely for conducting the Permitted Use, and will not use or
permit or suffer the use of, the Leased Premises for any other business or
purpose without the prior written consent of Lessor.
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B. USE IN COMPLIANCE WITH LAWS. Lessee shall, at Lessee's sole cost
and expense, comply with all applicable laws, ordinances, rules, requirements,
and regulations of all duly constituted public or semi-public authorities now or
hereafter in any manner affecting the Leased Premises whether or not any such
laws, ordinances, rules, requirements, and regulations which may be hereafter
enacted involve a change of policy on the part of the enacting authority.
Lessee may not: (1) permit any unlawful or immoral practice to be carried on or
committed on the Leased Premises; (2) make any use of or allow the Leased
Premises to be used for any purpose that might invalidate or increase the rate
of insurance thereof; (3) keep or use or permit to be kept or used on the Leased
Premises any inflammable fluids (other than properly stored cleaning fluids and
solvents) or explosives without Lessor's prior written consent; (4) use the
Leased Premises for any purpose whatsoever which might create a nuisance or
injure the reputation of the Leased Premises; (5) deface or injure any
improvements now or hereafter located on the Leased Premises; (6) commit or
suffer any waste; nor (7) cause or permit any noxious, disturbing, or offensive
odors, fumes or gases, or any smoke, dust, steam or vapors or any loud or
disturbing noise or vibration to originate in or to be emitted from the Leased
Premises. Furthermore, Lessee shall make at its own expense all alterations of
the Leased Premises required by any authority, agency or governmental unit and
shall save Lessor harmless from penalties, fines, costs, expenses, or damages
resulting from failure to do so. Without limiting the generality of the
foregoing, Lessee shall make such arrangements for the storage and timely
disposition of all garbage and refuse generated by the Leased Premises as may be
required in order to keep the Leased Premises and all surrounding areas in a
neat and orderly condition and reasonably clean and free from rubbish, dirt,
snow, and ice. Lessee shall indemnify Lessor for any liabilities (including
court costs and attorneys' fees) incurred by Lessor as a result of Lessee's
violation of any of the provisions contained in this paragraph. Lessee may, at
Lessee's own expense, contest the validity of any law, ordinance, rule,
requirement, or regulation of the nature herein referred to, and if by the terms
of any such law, ordinance, rule, requirement, or regulation, compliance
therewith may be legally held in abeyance without the incurrence of any lien,
charge, or liability of any kind against the fee of the Leased Premises or
against the Leasehold interest of Lessee in and to the Leased Premises and
without subjecting Lessee or Lessor to any liability of any nature for failure
so to comply, Lessee may postpone compliance therewith until a final
determination in any such proceedings but only if all such proceedings are
prosecuted by Lessee with all due diligence and dispatch and at the sole cost,
expense, and risk of Lessee.
Sec. 5:2. MAINTENANCE AND ALTERATION OF LEASED PREMISES.
A. MAINTENANCE BY LESSEE. Lessee agrees to accept possession of the
Leased Premises in their present condition and to allow for such changes in
condition as may normally be expected to occur through reasonable deterioration
between the date of this Agreement and the date Lessee actually takes possession
of the Leased Presses. Lessee shall, at Lessee's sole expense, maintain the
Leased Premises throughout the Lease Term and Lessee shall, at Lessee's sole
expense, make all repairs and replacements which may be necessary to maintain in
good
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condition the Leased Premises and the improvements located on the Leased
Premises. If Lessee fails to make the repairs or replacements required by
this Lease, Lessor is authorized to complete such repairs and replacements on
behalf of Lessee, and in such event Lessor may under no circumstances be held
liable to Lessee for any damages that Lessee might suffer as a result of such
action on the part of Lessor. Upon the termination of this Lease, Lessee
shall surrender the Leased Premises to Lessor in good order and repair,
except for reasonable wear and tear between the last necessary repair and/or
replacement by Lessee pursuant to Lessee's obligations hereunder. However,
Lessee will be liable at the time of termination of this Lease for all
repairs and replacements which have become necessary or desirable as a result
of any act of negligence of Lessee (or Lessee's employees, agents, or
invitees).
B. ALTERATIONS. Except as otherwise provided herein, Lessee
shall not make any alterations, additions, or other changes to the Leased
Premises without Lessor's prior written consent. However, Lessee may,
without obtaining Lessor's prior written consent, make minor alterations,
additions, and changes to the improvements required by SEC. 5:1.A hereof to
be constructed by Lessee on the Leased Premises but only if: (1) such
alterations, additions, and changes are accomplished in a good and
workmanlike manner at Lessee's sole expense and in accordance with all
applicable federal, state, and local laws, regulations, ordinances, and other
promulgations; and (2) such alterations, additions, and changes do not impair
the value, structural integrity, or soundness of such improvements. However,
notwithstanding anything contained herein to the contrary, Lessee shall not
have the right to demolish or remove any improvements at any time located on
the Leased Premises without first obtaining the prior written consent of
Lessor. Title to such alterations, additions, and changes will immediately
vest in Lessor at the end of the final day of the Lease Term or sooner
termination of this Lease and will remain as part of the Leased Premises.
Lessee shall not, however, remove any alterations, additions, or changes from
the Leased Premises nor waste, destroy, or modify any alterations, additions,
or changes on the Leased Premises once completed. The parties covenant for
themselves and all persons claiming under them that the alterations,
additions, and changes made by Lessee are real property. All alterations,
additions, and changes on the Leased Premises at the expiration of the Lease
Term or sooner termination of this Lease shall, without compensation to
Lessee, then become Lessor's property free and clear of all claims to or
against them by Lessee or any third person, and Lessee shall defend and
indemnify Lessor against all liabilities and loss resulting from such claims
or from Lessor's exercise of the rights conferred by this paragraph.
However, Lessor may elect to have Lessee remove any or all of such
alterations, additions, and changes in which event such alterations,
additions, and changes are to be completely removed by Lessee (without damage
to the Leased Premises) by the end of the Lease Term. Lessee shall promptly
pay for all work done or materials furnished in connection with the making of
any such alterations, additions, or other changes to the Leased Premises.
C. MECHANIC'S LIENS. Lessee will not permit any mechanic's lien or
liens to be placed upon the Leased Premises or improvements thereon during the
Lease Term caused by or resulting from any work performed, materials furnished
or obligation incurred by or at the
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request of Lessee. Should any mechanic's liens or other liens or affidavits
claiming liens be filed against the Leased Premises or any portion thereof or
interest therein for any reason whatsoever incident to the acts or omissions
of Lessee or any contractor of Lessee or any such contractor's subcontractor
or any laborer performing labor or materialman furnishing materials at or for
the Leased Premises or by reason of any specially fabricated materials
whether or not placed at the Leased Premises, Lessee shall cause the same to
be cancelled and discharged of record by payment, bonding (in an amount
satisfactory to Lessor) or otherwise within fifteen (15) days after notice by
Lessor, or at such earlier time as is necessary to prevent the foreclosure
thereof. If Lessee shall fail or refuse to cause any such lien or affidavit
to be cancelled and discharged as herein required, Lessor, without waiving
such default by Lessee, shall have the right and privilege at Lessor's option
of paying the same or any portion thereof without inquiry as to the validity
thereof, and any amounts so paid, including expenses and interest, shall be
so much additional rent hereunder due from Lessee to Lessor and shall be
repaid to Lessor immediately upon demand, together with interest on the
amount so paid at the highest lawful rate until repaid. Lessor's consent to
the making of any such alterations, additions, or other changes may not be
construed to make Lessee an agent of Lessor with authority to subject
Lessor's interest in the Leased Premises to any such lien or other claim.
Sec. 5:3. ACCESS BY LESSOR. Lessee agrees to allow Lessor and Lessor's
agents, employees, and representatives to enter into and upon the Leased
Premises during normal business hours for the purpose of inspecting the Leased
Premises and for exercising any of Lessor's rights under this Lease. Lessor may
under no circumstances be held liable for inconvenience, annoyance, disturbance,
or loss of business caused to Lessee or Lessee's guests, employees, or
subLessees by any such entry.
Sec. 5:4. SIGNS. Lessee shall not, without Lessor's prior written
consent, install outside the interior surface of the perimeter walls of any
building located on the Leased Premises any signs, window or door lettering,
placards, decorations, credit card or other decals, or any other advertising
media of any type. The design and location of all exterior signs shall be
approved in writing by Lessor. Prior to installing any signs, Lessee shall
submit to Lessor working drawings of any and all proposed signs. No sign shall
be installed unless and until Lessor's written approval of such sign and its
location has been obtained by Lessee. Lessee, at Lessee's sole cost and
expense, shall maintain all such signs installed by Lessee in good condition and
in proper operating order at all times and shall pay for all electricity used in
the operation of any signs. Lessee, at Lessee's sole cost and expense, shall
repair or cause to be repaired all damage done to any part of the Leased
Premises in connection with the installation, maintenance, repair or removal of
any of Lessee's signs.
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ARTICLE VI.
SPECIAL PROVISIONS
Sec. 6:1. ASSIGNMENTS AND SUBLEASES.
A. BY LESSEE. Lessee may not assign this Lease or any of Lessee's
rights under this Lease or sublease any part or all of the Leased Premises or
grant any license to use any portion of the Leased Premises without Lessor's
prior written consent. Consent by Lessor to one assignment, sublease or license
may not be construed as meaning consent to further assignments, subleases or
licenses. Regardless of any such assignment, sublease or license, Lessee will
remain liable to Lessor for the full performance of all of the provisions of
this Lease. As an additional condition precedent to any assignment, sublease or
license, Lessee shall furnish Lessor, among other things, reasonable notice of
the proposed assignment, sublease or license with appropriate documentation
respecting the identity, reputation, financial condition, and creditworthiness
of the proposed assignee, sublessee or licensee, and the proposed assignee,
sublessee or licensee shall, in recordable form, expressly assume all covenants
and conditions of this Lease on the part of Lessee to observe, comply with, or
perform. Any assignment, subletting or license shall be subject to and
conditioned upon, among other things, Lessee paying to Lessor an amount equal to
the attorneys' fees and administrative costs incurred by Lessor in connection
with such assignment, subletting or license.
B. BY LESSOR. Lessor may at any time convey, assign, or encumber
the Leased Premises and/or Lessor's rights under this Lease. In the event of
any such conveyance or assignment (other than a conveyance or assignment as
collateral security for an indebtedness), Lessor will be completely relieved
from all obligations placed on Lessor by this Lease effective the date of such
conveyance or assignment. However, Lessor will be so relieved only if (and
when) Lessee is furnished with an instrument in writing signed by such grantee
or assignee and providing for the assumption by such grantee or assignee of all
of the provisions of this Lease.
Sec. 6:2. FORCE MAJEURE. In the event that Lessor or Lessee is delayed or
hindered in or prevented from the performance of any of their respective
obligations anywhere herein contained by reason of: (1) the destruction, in
whole or in part, of any improvements forming a part of the Leased Premises; (2)
strikes; (3) lockouts; (4) labor troubles; (5) war, whether declared or
undeclared; (6) riot; (7) Act of God; (8) embargoes; (9) delays in
transportation; (10) inability to procure materials and/or labor; (11) failure
of power; (12) restrictive governmental laws or regulations (whether valid or
not); (13) insurrection; or (14) any other reason (other than financial) beyond
the reasonable control of such party, and not the fault of the party so delayed
or hindered in or prevented from performing work or doing acts otherwise
required under this Lease, then performance of such work or doing of such acts
will be excused for the period of the delay, and the period for the performance
of such work or doing such acts will be extended for a period equivalent to the
period of such delay; provided, however, that the
Page 11
provisions of this Section may not operate so as to excuse or release Lessee
from the prompt payment of rentals or other sums required to be paid by
Lessee to Lessor or to other payees anywhere hereunder.
Sec. 6:3. ESTOPPEL CERTIFICATE. Within ten days after written request
therefor by Lessor, Lessee shall deliver to Lessor (or Lessor's nominee) in
recordable form an Estoppel Certificate (herein so called) certifying (if such
be the case) that this Lease is unmodified and in full force and effect and the
dates to which the Basic Rent, Additional Rent, and other charges have been
paid, and stating whether or not to the knowledge of the signer of such
certificate Lessor is in default in the performance of any provision contained
in this Lease, and, if so, specifying each such default of which the signer may
have knowledge. Lessee hereby irrevocably appoints Lessor Lessee's attorney in
fact with full power and authority to execute, acknowledge, and deliver any such
Estoppel Certificates in the name and on behalf of Lessee in the event Lessee
for any reason fails to do so upon request.
Sec. 6:4. SUBORDINATION OF LEASE. If Lessor is required by the holder of
any note secured by a mortgage, deed of trust, or other lien now or hereafter
given by Lessor covering the Leased Premises to subordinate this Lease to such
mortgage, deed of trust, or other lien (and to all advances hereafter made in
connection therewith), Lessee shall, within ten (10) days after written request
therefor, execute and deliver such instruments as may be necessary to effect
such subordination, but only if: (a) the holder of such note agrees in writing
to recognize this Lease and Lessee's rights under this Lease; and (b)
foreclosure of the lien securing such note will not operate to terminate this
Lease or adversely affect Lessee's rights or obligations. Lessee hereby
irrevocably appoints Lessor Lessee's attorney in fact with full power and
authority to execute, acknowledge, and deliver any such instruments in the name
and on behalf of Lessee in the event Lessee for any reason fails to do so upon
request.
Sec. 6:5. MORTGAGE OF LESSEE'S LEASEHOLD ESTATE. Lessee may mortgage
Lessee's leasehold estate in the Leased Premises as security for any bona fide
indebtedness of Lessee, but no such mortgage may under any circumstances impair
or affect Lessor's interest in the Leased Premises or under this Lease, and any
such mortgage will at all times remain subordinate and inferior to Lessor's
interest in the Leased Premises and under this Lease. If Lessor receives notice
in writing of the name and mailing address of any such mortgagee of Lessee,
Lessor agrees to furnish such mortgagee with notice of the occurrence of any
Event of Default hereunder, and such mortgagee may (but will not be obligated
to), in the name and on behalf of Lessee, cure any such Event of Default within
the time and in the manner herein required of Lessee. In the event such
mortgagee forecloses such mortgagee's interest in the Leased Premises in any
manner provided by law and such mortgagee or other person or entity ("NEW
OWNER") becomes the legal owner of the Leasehold estate, such New Owner shall be
substituted for the Lessee under this Lease and will be obligated to perform all
of the obligations herein placed on Lessee. This substitution will be automatic
and will not require any written instrument of assumption in order to take
effect.
Page 12
Sec. 6:6. RECORDING OF LEASE. Lessee may not record this Lease without
Lessor's prior written consent. However, if requested in writing by Lessee,
Lessor agrees to execute and deliver to Lessee a Memorandum of Lease for
recording purposes which is in form and substance satisfactory to Lessor.
Lessee shall pay all recording costs.
ARTICLE VII.
DAMAGE AND CONDEMNATION
Sec. 7:1. DAMAGE TO LEASED PREMISES. Lessee shall promptly and diligently
repair, restore, and replace all damage to or destruction of any and all
improvements at any time located on the Leased Premises and otherwise remedy all
damage to or destruction of all or any part of the improvements, resulting
wholly or in part from any cause required by this Lease to be covered by fire or
extended coverage insurance. The completed work of repair, restoration, or
replacement shall be at least equal in value, quality and use to the condition
of the improvements immediately before the event giving rise to the work.
Lessor shall not be required to furnish any services or facilities or to make
any repairs, alterations, or replacements of any kind in or on the Leased
Premises, all such matters being the sole duty and responsibility of Lessee. In
the event Lessor elects to perform any obligation of Lessee after Lessee's
failure or refusal to do so, such performance shall not constitute a waiver of
any right or remedy for Lessee's default, and Lessee shall promptly reimburse,
defend, and indemnify Lessor against all liability, loss, cost, and expense
arising from such performance by Lessor. No deprivation, impairment, or
limitation of use resulting from any event or work contemplated by this
paragraph shall entitle Lessee to any offset, abatement, or reduction in rent
nor to any termination or extension of the Lease Term.
Sec. 7:2. CONDEMNATION OF LEASED PREMISES.
A. TOTAL CONDEMNATION. If the whole of the Leased Premises shall be
taken by any public or quasi-public authority under the power of eminent domain,
condemnation or expropriation or in the event of a conveyance in lieu thereof,
then this Lease shall terminate on the date when Lessee is required to yield
possession thereof, and all rentals shall be paid up to that date, and Lessee
shall have no claim against Lessor or the condemning authority for the value of
the unexpired term of this Lease.
B. PARTIAL CONDEMNATION. If part of the Leased Premises shall be so
taken or conveyed and the consequent reduction in the area of the Leased
Premises be such that the conduct of Lessee's business on the Leased Premises
would be substantially and materially prevented or impaired, then the term of
this Lease shall cease and terminate as of the date on which possession of the
Leased Premises is required to be surrendered to the condemning authority, and
all rentals shall be paid up to that date. Lessee shall have no claim against
Lessor or the condemning authority for the value of any unexpired term of this
Lease. Should,
Page 13
however, only a portion of the Leased Premises be so condemned or taken and
the subsequent reduction of the area of the Leased Premises be not such that
the conduct of Lessee's business on the Leased Premises would be
substantially and materially prevented or impaired, then this Lease shall
continue in full force and effect. If this Lease is not terminated following
a partial condemnation, Lessee shall, at Lessee's sole cost and expense, make
all necessary repairs or alterations to any improvements damaged or removed
by such taking which are necessary to restore the Leased Premises to
substantially the condition in which the same existed immediately prior to
such taking. Notwithstanding anything to the contrary in this Lease, Lessor
shall not be obligated to pay any portion of the cost of any work to be
performed by Lessee as a result of any such partial condemnation. No partial
taking shall be deemed to constitute an eviction or disturbance of Lessee's
use and possession of the Leased Premises or a breach by Lessor of any of its
obligations hereunder or render Lessor liable for damages or entitle Lessee
to be relieved from any of its obligations hereunder or grant Lessee any
right of off-set or recoupment.
C. DAMAGES. The taking or condemnation of the whole or any part of
the Leased Premises by any legally constituted authority for any public or any
quasi-public use or purpose shall be without prejudice to the rights of either
Lessor or Lessee to recover compensation and damages caused by such taking or
condemnation from the taker or condemnor. In the event of a taking, the rights
of the parties with respect to the award for such taking shall be as the parties
then agree to be just and equitable under all the circumstances, having in mind
the rights of any mortgagee, the economics of operating any remaining portion of
the Leased Premises and improvements, the cost of restoration, and the balance
of the Lease Term remaining, among other relevant considerations. If Lessor and
Lessee do not agree within ninety (90) days after the amount of the award is
finally determined, the undecided questions shall be resolved by arbitration.
Arbitration shall be by a panel of three (3) arbitrators, one appointed by each
of the parties hereto and a third appointed by the two so selected. Such
arbitration shall be conducted in accordance with the laws of the State in which
the Leased Premises are located. Notwithstanding anything contained herein or
decided by any arbitrators to the contrary, Lessee shall not be entitled to any
part of the award which is attributable to the taking of any land, and Lessor
shall be entitled to receive the full amount of such award.
D. DEED IN LIEU OF CONDEMNATION. In the event that any authority
having the power of eminent domain requests that Lessor convey to such authority
all or any portion of the Leased Premises, Lessor shall have the right to make a
voluntary conveyance to such authority of all or any portion of the Leased
Premises notwithstanding that proceedings have not been filed by such authority;
and in the event of any such voluntary conveyance, it shall nevertheless for all
purposes hereunder be deemed that there has been a taking by such authority of
the property voluntarily conveyed by Lessor. Accordingly, all of the provisions
of SEC. 7:2 shall be applicable notwithstanding such voluntary conveyance.
Page 14
ARTICLE VIII.
DEFAULT
Sec. 8:1. EVENTS OF DEFAULT. An "Event of Default" will be deemed to have
occurred upon the happening of any of the following events or conditions:
A. Lessee fails to timely pay when due any installment of rent
(whether Basic Rent, Additional Rent, or other charges) hereby reserved and such
failure shall continue for more than ten (10) days after written notice from
Lessor to Lessee specifying the failure; provided, however, after Lessor has
given Lessee written notice pursuant to this clause A on three (3) separate
occasions during any calendar year, Lessor shall not be required to give Lessee
any further notice under this clause A.
B. Lessee fails to comply with any term, provision or covenant of
this Lease, other than the payment of rent, and such failure shall continue for
more than thirty (30) days after written notice from Lessor to Lessee specifying
the failure; provided, however, if such failure cannot reasonably be cured
within thirty (30) days, no Event of Default shall exist as a result of such
failure unless Lessee fails to commence curing such failure within such thirty
(30) day period, fails to diligently proceed to cure such failure, or fails to
completely cure such failure within ninety (90) days after such notice.
C. Lessee or any guarantor of Lessee's obligations under this Lease
becomes insolvent, makes a transfer in fraud of creditors, or shall make an
assignment for the benefit of creditors.
D. Lessee or any guarantor of Lessee's obligations under this Lease
files a petition under any section or chapter of the Bankruptcy Code, as
amended, or under any similar law or statute of the United States or any state
thereof; or Lessee or such guarantor is adjudged bankrupt or insolvent in
proceedings filed against Lessee or such guarantor thereunder.
E. A receiver or trustee is appointed for the Leased Premises or for
all or substantially all of the assets of Lessee or any guarantor of Lessee's
obligations under this Lease.
F. Lessee does or permits to be done anything which creates a lien
upon the Leased Premises.
G. Lessee assigns or in any manner transfers this Lease or any
estate or interest therein, or assigns or in any manner transfers any of
Lessee's rights under this Lease, or sublets the Leased Premises or any part
thereof, or grants any license, concession or other right or occupancy of any
portion of the Leased Premises without the prior written consent of Lessor.
Page 15
H. Lessee defaults under the terms and conditions of any loan or
other financing secured by a mortgage, deed of trust or other security agreement
constituting a lien on any of the improvements constructed on the Leased
Premises or Lessee's leasehold interest in the Leased Premises and such default
is not cured within any applicable cure period.
Sec. 8:2. REMEDIES. Upon the occurrence of an Event of Default, Lessor
shall have the option, in addition to any other right or remedy given hereunder
or by law or equity, to pursue any one or more of the following remedies without
any notice or demand whatsoever:
A. Terminate this Lease, in which event Lessee shall immediately
surrender the Leased Premises to Lessor, and if Lessee fails to do so, Lessor
may, without prejudice to any other remedy which Lessor may have for possession
or arrearages in rent, immediately enter upon and take possession of the Leased
Premises and expel or remove Lessee and any other person who may be occupying
the Leased Premises or any part thereof and any property found within the Leased
Premises, by force if necessary, without being liable for prosecution or any
claim of damages therefor. If and to the extent permitted by applicable law,
Lessor also will have the right to lock the Leased Premises and bar Lessee from
entering the Leased Premises. The right of re-entry of Lessor and the right of
Lessor to remove all persons and property from the Leased Premises may be
accomplished by Lessor without any notice given to Lessee. Lessor may
accomplish all of this without resort to legal process and without being deemed
guilty of trespass or becoming liable to Lessee or others for any resulting loss
or damage. Lessee agrees to pay to Lessor on demand the amount of all loss and
damage which Lessor may suffer by reason of such termination, whether through
inability to relet the Leased Premises on satisfactory terms or otherwise. If
Lessor elects to terminate this Lease, all of Lessee's rights under this Lease
shall immediately cease. Notwithstanding the fact that all of the Lessee's
rights under this Lease shall cease upon termination of this Lease, the
termination of this Lease by Lessor on account of default by Lessee does not in
any way affect Lessee's liability for past due rental or damages as set forth
below on account of such breach. Upon termination of this Lease by Lessor,
Lessee shall pay to Lessor all past due rentals and, as liquidated damages, a
sum of money determined as set out below as rental for the balance of the Lease
term. If this sum is not paid within ten (10) days after Lessor has sent Lessee
notice of the amount due, interest shall accrue on such sum at the rate of
twelve percent (12%) per annum from the date of termination of this Lease until
such sum is paid in full.
B. Enter upon and take possession of the Leased Premises and expel
or remove Lessee and any other person who may be occupying the Leased Premises
or any part thereof, together with any property that may be found within the
Leased Premises, by force if necessary, without being liable for prosecution or
any claim for damages therefor, and, if Lessor so elects, perform such
alterations and repairs as Lessor deems advisable and relet the Leased Premises
on such terms as Lessor may deem advisable and receive the rent therefor. Upon
such reletting, Lessee shall immediately be liable to Lessor, in addition to any
indebtedness other than rent due hereunder, for the cost and expenses of such
reletting and of such alterations and
Page 16
repairs incurred by Lessor. At the option of Lessor, rents received by
Lessor by such reletting shall be applied as follows:
1. First, to the payment of any indebtedness, other than rent, due
hereunder from Lessee to Lessor;
2. Second, to the payment of any of the cost or expense of the reletting
and of such alterations and repairs;
3. Third, to the payment of all past due rental;
4. Fourth, to the payment of the future Basic Rent, Additional Rent and
other charges, as the same may become due and payable hereunder.
If the rent received by Lessor by such reletting for any Lease Year shall be
less than that owing by Lessee under this Lease for such Lease Year, Lessee
shall pay the deficiency to Lessor within ten days after Lessor has sent Lessee
written demand therefor. If Lessee fails to timely pay this sum, interest shall
accrue on such amount at the rate of twelve percent (12%) per annum from the
date of such written demand until such sum is paid in full. If the rent
received by Lessor for such reletting is more than that owing by Lessee under
this Lease for such Lease Year, Lessor shall be entitled to retain the excess.
No re-entry or taking possession of the Leased Premises by Lessor shall be
construed as an election on Lessor's part to terminate this Lease unless Lessor
has elected to terminate this Lease. Notwithstanding any reletting without
termination, Lessor may at any time thereafter elect to terminate this Lease for
such previous breach.
C. Enter upon the Leased Premises, by force if necessary, without
being liable for prosecution or any claim for damages therefor, and do whatever
Lessee is obligated to do under the terms of this Lease; and Lessee agrees to
reimburse Lessor on demand for any expenses which Lessor may incur in thus
effecting compliance with Lessee's obligations under this Lease, and Lessee
further agrees that Lessor shall not be liable for any damages resulting to
Lessee from such action, whether caused by the negligence of Lessor or
otherwise.
D. If and to the extent permitted by applicable law, alter any and
all locks and other security devices at the Leased Premises.
Sec. 8:3. EFFECT OF EXERCISE OF REMEDIES. Exercise by Lessor of any one
or more remedies hereunder granted or otherwise available shall not be deemed to
be an acceptance of surrender of the Leased Premises by Lessee, whether by
agreement or by operation of law, it being understood that such surrender can be
effected only by the written agreement of Lessor and Lessee. No such alteration
of locks or other security devices and no removal or other exercise of dominion
by Lessor over the property of Lessee or others at the Leased Premises
Page 17
shall be deemed unauthorized or constitute a conversion, Lessee hereby
consenting, after any Event of Default, to the exercise by Lessor of dominion
over Lessee's property within the Leased Premises. All claims for damages by
reason of re-entry and/or repossession and/or alteration of locks or other
security devices are hereby waived, as are all claims for damages by reason
of any distress warrant, forcible detainer proceedings, sequestration
proceedings or other legal process. Lessee agrees that any re-entry by
Lessor may be pursuant to judgment obtained in forcible detainer proceedings
or other legal proceedings or without the necessity for any legal
proceedings, as Lessor may elect, and Lessor shall not be liable in trespass
or otherwise. Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any other remedies
provided by law, nor shall pursuit of any remedy herein provided constitute a
forfeiture or waiver of any rent due to Lessor hereunder or of any damages
accruing to Lessor by reason of the violation of any of the terms, provisions
or covenants herein contained. Forbearance by Lessor to enforce one or more
of the remedies herein provided upon an event of default shall not be deemed
or construed to constitute a waiver of such default. To the extent permitted
by law, Lessee waives notice of re-entry, or institution of legal proceedings
to that end, and any right of redemption, re-entry or repossession. No
waiver by Lessor of any violation or breach of any of the terms, provisions,
and covenants herein contained shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions, and
covenants herein contained. Lessor's acceptance of the payment of rental or
other payments hereunder after the occurrence of an Event of Default shall
not be construed as a waiver of such default, unless Lessor so notifies
Lessee in writing. Forbearance by Lessor to enforce one or more of the
remedies herein provided upon an Event of Default shall not be deemed or
construed to constitute a waiver of such Event of Default.
Sec. 8:4. DAMAGES. Notwithstanding re-entry and termination pursuant
to SEC. 8:2.A or re-entry without termination pursuant to SEC. 8:2.B, Lessee
shall remain liable for any rent and damages which may be due or which may be
incurred prior thereto and all reasonable costs and all professional fees and
expenses incurred by Lessor in leasing the Leased Premises to another tenant.
Lessee shall also be liable for damages to be calculated in the following
manner: Lessee shall pay an amount of money equal to the total rent
(including Basic Rent, Additional Rent and other charges) which but for
termination would have become payable during the remainder of the Lease term,
less the amount of rent, if any, which Lessor actually receives during such
period from others to whom the Leased Premises may be rented on such terms
and conditions and at such rentals as Lessor, in its sole discretion, shall
deem proper. Such damage shall be payable in annual installments, in
arrears, on the first day of each Lease Year following such termination and
continuing until the date originally fixed herein for the expiration of the
then current term, and any suit or action brought to collect the amount of
any deficiency for any Lease Year shall not in any manner prejudice the right
of Lessor to collect any deficiency for any subsequent Lease Year by a
similar proceeding. In no event shall Lessee be entitled to any excess of
any rent obtained by reletting the Leased Premises for an amount over and
above the rent herein reserved. In case of an Event of Default, Lessee shall
also be liable for and shall pay to Lessor, in addition to any sum provided
to be paid above, broker's fees incurred by
Page 18
Lessor in connection with reletting the whole or any part of the Leased
Premises, the costs of removing and storing Lessee's or other occupant's
property, the costs of repairing, altering, remodeling or otherwise putting
the Leased Premises into condition acceptable to a new tenant or tenants, and
all reasonable expenses incurred by Lessor in enforcing Lessor's remedies,
including reasonable attorneys' fees.
Sec. 8:5. ATTORNEYS' FEES. In the event Lessee defaults in the
performance of any of the terms, covenants, or conditions contained in this
Lease and Lessor places the enforcement of this Lease, or any part thereof, or
the collection of any rental due or to become due hereunder, or the recovery of
possession of the Leased Premises in the hands of an attorney, or files suit
upon the same, Lessee agrees to pay to Lessor all cost of suit and cost of
enforcement of Lessor's rights hereunder, including reasonable attorneys' fees;
and the payment of the sums and amounts specified in this paragraph shall be
secured in like manner as is herein provided as to security for rent.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Sec. 9:1. NOTICES. All notices allowed or required to be given hereunder
must be in writing and either personally delivered or dispatched by United
States certified mail, return receipt requested, to the respective addresses of
the parties set forth at the end of this Lease. Either party hereto may change
the address to which any such notice is to be addressed by giving notice in
writing to the other party of such change. Any time limitation provided for in
this Lease will commence with the date that the party actually receives such
written notice, and the date of postmark of any return receipt indicating the
date of delivery of such notice to the addressee will be conclusive evidence of
such receipt. Any notice or document required or permitted to be delivered by
this Lease shall be deemed to be received (whether or not actually received)
when deposited in the United States mail, postage prepaid, certified mail,
return receipt requested, addressed to the party to be notified at the address
set forth at the end of this Lease.
Sec. 9:2. WAIVER. The waiver by either Lessor or Lessee of any provision
of this Lease may not be deemed to be a waiver of any other provision. The
subsequent acceptance of Basic Rent or Additional Rent by Lessor from Lessee may
under no circumstances be deemed to be a waiver of any preceding breach by
Lessee of any provision hereof other than the failure of Lessee to pay the rent
so accepted regardless of Lessor's knowledge of such preceding breach at the
time of the acceptance of such rent. No provision of this Lease may under any
circumstances be deemed to have been waived by any party hereto unless such
waiver is in writing and signed by the party charged with such waiver.
Acceptance by Lessor of any payment in an amount less than that portion then
owing under this Lease will be deemed an
Page 19
acceptance on account only and not a waiver; and the failure to pay the
entire amount then due will continue to constitute an Event of Default.
Sec. 9:3. ENTIRE AGREEMENT AND AMENDMENTS. This Lease constitutes the
entire agreement between Lessor and Lessee, and there are no other covenants,
agreements, promises, terms, provisions, conditions, undertakings, or
understandings, either oral or written, between them concerning the Leased
Premises other than those herein set forth. No subsequent alteration,
amendment, change, deletion or addition to this Lease will be binding upon
Lessor or Lessee unless in writing and signed by both Lessor and Lessee.
Sec. 9:4. NO JOINT VENTURE. Nothing herein contained will be deemed to
constitute Lessor a partner of Lessee in the conduct of Lessee's business or a
joint venturer or a member of a joint enterprise or partnership with Lessee.
Sec. 9:5. PARTIAL INVALIDITY. If any provision of this Lease, or the
application thereof to any person or circumstances, is determined to any extent
to be invalid or unenforceable, the remainder of this Lease, or the application
of such affected provision to persons or circumstances other than those to which
it is held invalid or unenforceable, will not be affected thereby, and each
provision of this Lease will be valid and may be enforced to the fullest extent
permitted by law. It is further the intention of Lessor and Lessee that if any
provision of this Lease is capable of two constructions, one of which would
render the provision void and other of which would render the provisions valid,
then the construction having the meaning which renders it valid will be deemed
to be the only proper construction of such provision.
Sec. 9:6. BROKER'S COMMISSION. Lessor and Lessee each represent and
warrant to the other that there are no claims for brokerage commissions or
finder's fees in connection with the execution and delivery of this Lease, and
each agrees to indemnify the other against and hold such party harmless from all
liabilities arising from any such claims including without limitation attorneys'
fees and related court costs.
Sec. 9:7. HEADINGS; CAPTIONS. The headings, captions, and numbering
system are inserted only as a matter of convenience and may under no
circumstances be considered in interpreting the provisions of this Lease.
Sec. 9:8. NO SETOFF. Lessee may under no circumstances have any right of
setoff or deduction against any payments payable by Lessee to Lessor under any
of the terms, provisions, conditions and covenants of this Lease, but instead
Lessee may register a protest in connection with any payments being made.
Sec. 9:9. HOLDING OVER. Any holding over of the Leased Premises, or any
part thereof, by Lessee after the termination of this Lease (for whatever reason
such termination may occur)
Page 20
is to be construed only as a tenancy from day to day, terminable at the will
of Lessor, at a daily rental equal to $1.00 per day.
Sec. 9:10. GOVERNING LAW; PLACE OF PERFORMANCE. THIS LEASE SHALL BE
GOVERNED BY AND CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS. All of the duties and obligations herein contained are performable in
Tarrant County, Texas. Venue of any action brought under this Lease shall be in
Tarrant County, Texas.
Sec. 9:11. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which will for all purposes be deemed to be an original,
and all of which are identical.
Sec. 9:12. GENDER; SINGULAR AND PLURAL. As used herein, the neuter gender
includes the feminine and masculine, the masculine includes the feminine and
neuter, and the feminine includes the masculine and neuter and each includes a
corporation, partnership, or other legal entity when the context so requires.
The singular number includes the plural, and VICE VERSA, whenever the context so
requires.
Sec. 9:13. BINDING EFFECT. This Lease shall be binding upon and shall
inure to the benefit of the parties thereto and their respective successors and
assigns except as otherwise provided herein.
Sec. 9:14. AUTHORITY TO EXECUTE. Lessee represents and warrants to Lessor
that Lessee is fully authorized to enter into this Lease without the joinder of
any other person or entity, and the person executing this Lease on behalf of
Lessee has full authority to do so and that any and all corporate action
required has been taken. Lessor represents and warrants to Lessee that Lessor
is fully authorized to enter into this Lease without the joinder of any other
person or entity, and the person executing this Lease on behalf of Lessor has
full authority to do so and that any and all corporate action required has been
taken.
ARTICLE X
SPECIAL PROVISIONS PERTAINING TO ENVIRONMENTAL MATTERS
Sec. 10:1. Representations, Covenants and Warranties. Lessee hereby
represents, covenants and warrants to Lessor and its successors and assigns, as
follows:
A. The location and construction, occupancy, operation and use of
all improvements now or hereafter attached to or placed, erected, constructed or
developed on, in, or under the Leased Premises or as a portion of the Leased
Premises (the "IMPROVEMENTS") will not violate any applicable law, statute,
ordinance, rule, regulation, policy, order or determination of any federal,
state, local or other governmental authority ("GOVERNMENTAL AUTHORITY") or any
Page 21
board of fire underwriters (or other body exercising similar functions), or any
restrictive covenant or deed restriction affecting any portion of the Leased
Premises, including without limitation, any applicable zoning ordinances and
building codes, flood disaster laws and health and environmental laws, rules and
regulations (hereinafter collectively called the "APPLICABLE LAWS").
B. Lessee will obtain, at Lessee's sole cost and expense, all
permits, licenses, and authorizations required to construct, occupy, operate,
and/or use any portion of the Leased Premises by reason of any Applicable Laws
pertaining to health or the environment (the "APPLICABLE ENVIRONMENTAL LAWS")
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ("CERCLA") and the Resource
Conservation and Recovery Act of 1987, as amended ("RCRA").
C. The use which Lessee makes and intends to make of the Leased
Premises will not result in the disposal or release of any hazardous substance,
solid waste or other substance known or suspected to pose a threat to health or
the environment (collectively, "HAZARDS" and individually, "HAZARD") on, in,
under or to the Leased Premises. The terms "hazardous substance" and "release"
shall each have the meanings specified in CERCLA, and the terms "solid waste"
and "disposal" (or "disposed") shall each have the meanings specified in RCRA;
provided, however, that in the event either that CERCLA or RCRA is amended so as
to broaden the meaning of any term defined thereby, such broader meaning shall
apply subsequent to the effective date of such amendment; and provided further
that, to the extent that the laws of the State of Texas establish a meaning for
"hazardous substance," "release," "solid waste," or "disposal" which is broader
than that specified in either CERCLA or RCRA, such broader definition shall
apply.
D. Lessee shall not cause any violation of any Applicable
Environmental Laws, nor permit any subtenant, concessionaire or licensee of any
portion of the Leased Premises to cause such a violation, nor permit any
environmental liens to be placed on any portion of the Leased Premises.
All of the foregoing representations, warranties and covenants shall be
continuing and shall be true and correct for the period from the date hereof
through the end of the Lease Term with the same force and effect as if made each
day throughout such period, and all of such representations and warranties shall
survive the expiration or termination of this Lease.
Sec. 10:2. COVENANT TO CLEAN UP AND NOTIFY. Lessee shall conduct and
complete all investigations, studies, sampling, and testing and all remedial,
removal, and other actions necessary to clean up and remove hazardous
substances, solid wastes or Hazards on, in, under, from or affecting any portion
of the Leased Premises (a) in accordance with all Applicable Laws, (b) to the
satisfaction of Lessor, and (c) in accordance with the orders and directives of
all Governmental Authorities. Lessee shall (a) give notice to Lessor
immediately upon (i)
Page 22
Lessee's receipt of any notice from any Governmental Authority of a violation
of any Applicable Laws or acquiring knowledge of the receipt of any such
notice by any subtenant, concessionaire or licensee of any portion of the
Leased Premises and (ii) acquiring knowledge of the presence of any hazardous
substances, solid wastes or Hazards on, in or under the Leased Premises in a
condition that is resulting or could reasonably be expected to result in any
adverse environmental impact, with a full description thereof; (b) promptly
comply with all Applicable Environmental Laws requiring the notice, removal,
treatment, or disposal of such hazardous substances, solid wastes or Hazards
and provide Lessor with satisfactory evidence of such compliance; and (c)
provide Lessor, within thirty (30) days after demand by Lessor, with a bond,
letter of credit, or similar financial assurance evidencing to Lessor's
satisfaction that sufficient funds are available to pay the cost of removing,
treating, and disposing of such hazardous substances, solid wastes or Hazards
and discharging any assessments that may be established on the Leased
Premises as a result thereof.
Sec. 10:3. SITE ASSESSMENT. If Lessor shall ever have reason to
believe that there are hazardous substances, solid wastes or Hazards
affecting any part of the Leased Premises, Lessor (by its officers, employees
and agents) at any time and from time to time, either prior to or after the
occurrence of an Event of Default, may contract for the services of persons
(the "SITE REVIEWERS") to perform environmental site assessments ("SITE
ASSESSMENTS") on the Leased Premises for the purpose of determining whether
there exists on the Leased Premises any environmental condition that could
result in any liability, cost, or expense to the owner, occupier, or operator
of the Leased Premises arising under any Applicable Environmental Laws. The
Site Assessments may be performed at any time or times, upon reasonable
notice, and under reasonable conditions established by Lessee that do not
impede the performance of the Site Assessments. The Site Reviewers are
hereby authorized to enter upon the Leased Premises for such purposes. The
Site Reviewers are further authorized to perform both above and below the
ground testing for environmental damage or the presence of hazardous
substances, solid wastes and Hazards on the Leased Premises and such other
tests on the Leased Premises as may be necessary to conduct the Site
Assessments in the reasonable opinion of the Site Reviewers. Lessee will
supply to the Site Reviewers such historical and operational information
regarding the Leased Premises as may be reasonably requested by the Site
Reviewers to facilitate the Site Assessments and will make available for
meetings with the Site Reviewers appropriate personnel having knowledge of
such matters. On request, Lessor shall make the results of such Site
Assessments fully available to Lessee, which (prior to an Event of Default)
may, at Lessee's election, participate under reasonable procedures in the
direction of such Site Assessments and the description of tasks of the Site
Reviewers. The cost of performing such Site Assessments shall be paid by
Lessee upon demand of Lessor.
Sec. 10:4. INDEMNITY AND HOLD HARMLESS. Lessee hereby defends,
indemnifies and holds harmless Lessor, its employees, agents, shareholders,
officers and directors (collectively, the "INDEMNIFIED PARTIES"), from and
against any claims, demands, obligations, penalties, fines, suits, liabilities,
settlements, damages, losses, costs or expenses (including, without limitation,
Page 23
attorney and consultant fees and expenses, investigation and laboratory fees and
expenses, cleanup costs, and court costs and other litigation expenses) of
whatever kind or nature, known or unknown, contingent or otherwise, arising out
of or in any way related to (i) the presence, disposal, release, threatened
release, removal or production of any hazardous substances, solid wastes or
Hazards which are on, in, under, from or affecting any portion of the Leased
Premises at any time during the Lease Term or thereafter during any occupancy of
the Leased Premises by Lessee; (ii) any personal injury (including wrongful
death) or property damage (real or personal) arising out of or related to such
hazardous substances, solid wastes or Hazards; (iii) any lawsuit brought or
threatened, settlement reached, or order by Governmental Authority relating to
such hazardous substances, solid wastes or Hazards, and/or (iv) any violation of
any Applicable laws, or demands of Governmental Authorities, or violation of any
policies or requirements of Lessor, which are based upon or in any way related
to such hazardous substances, solid wastes or Hazards, regardless of whether or
not any of the conditions described under any of the foregoing subsections (i)
through (iv), inclusive, was or is caused by or within the control of Lessee.
Lessee agrees, upon notice and request by an Indemnified Party, to contest and
defend any demand, claim, suit, proceeding, or action with respect to which
Lessee has hereinabove indemnified and held the Indemnified Parties harmless and
to bear all costs and expenses of such contest and defense. Lessee further
agrees to reimburse any Indemnified Party upon demand for any costs or expenses
incurred by any Indemnified Party in connection with any matters with respect to
which Lessee has hereinabove indemnified and held the Indemnified Parties
harmless. The provisions of this paragraph shall be in addition to any other
obligations and liabilities Lessee may have to Lessor at common law, in equity
or under this Lease, and shall survive the termination of this Lease.
Sec. 10:5. LESSOR'S RIGHT TO REMOVE HAZARDOUS MATERIALS. Lessor shall
have the right, but not the obligation, without in any way limiting Lessor's
other rights and remedies under this Lease, to enter onto the Leased Premises
or to take such other actions as it deems necessary or advisable to clean up,
remove, resolve, or minimize the impact of, or otherwise deal with, any
hazardous substances, solid wastes or Hazards on, in, under, or affecting the
Leased Premises following receipt of any notice from any person or entity
asserting the existence of any hazardous substances, solid wastes or Hazards
pertaining to the Leased Premises or any part thereof that, if true, could
result in an order, notice, suit, imposition of a lien on the Leased
Premises, or other action or that, in Lessor's sole opinion, could jeopardize
Lessor. All reasonable costs and expenses paid or incurred by Lessor In the
exercise of any such rights shall be payable by Lessee upon demand.
Sec. 10:6. RELIANCE AND BINDING NATURE. Lessee acknowledges that
Lessor has and will rely upon the representations, covenants, warranties and
agreements herein set forth in entering into this Lease and leasing the
Leased Premises to Lessee. The representations, covenants, warranties and
agreements herein contained shall be binding upon Lessee, its successors,
assigns and legal representatives and shall inure to the benefit of Lessor,
its successors, assigns and legal representatives.
Page 24
EXECUTED to be effective for all purposes as of the date first above
written.
LESSOR:
Lessor's Address for notice: INDEPENDENT RESEARCH AGENCY FOR LIFE
INSURANCE, INC.
Independent Research Agency
for Life Insurance, Inc.
P. O. Box 2387 By: /s/ Xxxxxx X. Xxxxxx
Xxxx Xxxxx, Xxxxx 00000 ------------------------------------
Attn: Chief Financial Officer Name: XXXXXX X. XXXXXX
----------------------------
Title: CHIEF FINANCIAL OFFICER
----------------------------
LESSEE:
FIRST COMMAND FINANCIAL
Lessee's Address for notice: CORPORATION
First Command Financial Corporation
4100 South Xxxxx By: /s/ Xxxxx X. Xxxxx
Xxxx Xxxxx, Xxxxx 00000 -----------------------------------
Attn: Chief Executive Officer Name: XXXXX X. XXXXX
---------------------------
Title: CHIEF EXECUTIVE OFFICER
---------------------------
Page 25
EXHIBIT A
BEING a 43750 square foot tract of land situated in the B.B.B. & C.R.R.
Survey, Abstract Number 217, and the X. Xxxxxx Survey, Abstract Xxxxxx 000,
Xxxx xx Xxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx, being part of Xxx 0-X, Xxxxx X xx
XXXXXXX XXXX ADDITION described by plat recorded in Volume 388-173, Page 10,
Plat Records of Tarrant County, Texas (PRTCT), and being part of a called
17.000 acre tract of land described by deed as "TRACT FOUR" to Cassco Land
Co., Inc., recorded in Volume 6494, Page 389, Deed Records of Tarrant County,
Texas (DRTCT), said 43750 square foot tract of land being more particularly
described by metes and bounds as follows:
Commencing at a 1/2-inch iron rod found at the intersection of the north
right-of-way line of Xxxxxxx Plaza (an 80-foot right-of-way) and the west
right-of-way line of South Xxxxx Street (a 120-foot right-of-way);
THENCE along said west right-of-way line the following:
North 00DEG.09'00" East, a distance of 281.00 feet to a 1/2-inch iron
rod found for the beginning of a curve to the left having a central angle
of 09DEG.31'21" and a radius of 1287.60 feet;
Along said curve to the left an arc distance of 214.00 feet and a chord
bearing and distance of North 04DEG.36'41" West 213.75 feet to a
1/2-inch iron rod found for the southeast corner of Xxx 0, Xxxxx X xx
XXXXXXX XXXX ADDITION described by plat recorded in Volume 388-74, Page
2 PRTCT;
THENCE South 84DEG.46'00" West, a distance of 327.42 feet along the south
line of said Xxx 0 xx x xxxxx;
XXXXXX Xxxxx 00XXX.00'00" East, a distance of 59.71 feet to a point for
corner, said point being the POINT OF BEGINNING;
THENCE South 04DEG.23'44" East, a distance of 125.00 feet to a point for
corner;
THENCE South 85DEG.36'16" West, a distance of 350.00 feet to a point for
corner;
THENCE North 04DEG.23'44" West, a distance of 125.00 feet to a point for
corner;
THENCE North 85DEG.36'16" East, a distance of 350.00 feet to the POINT OF
BEGINNING;
CONTAINING a computed area of 43750 square feet of land.
EXHIBIT B
Being a 14.278 acre tract of land situated in the B.B.B. & C.R.R.
Survey, Abstract No. 217, and the X. Xxxxxx Survey, Abstract No. 693, City of
Fort Worth, Tarrant County, Texas, being all of XXX 0-X, XXXXX X xx XXXXXXX
XXXX ADDITION described by plat recorded in Volume 388-173, Page 10, Plat
Records of Tarrant County, Texas (PRTCT), being the remainder of XXX 0 XXXXX
X xx XXXXXXX XXXX ADDITION described by plat recorded in Volume 388-124, Page
27, PRTCT, being part of a called 19.23 acre tract of land described by deed
to Cassco Land Co., Inc., recorded in Volume 5190, Page 800, Deed Records of
Tarrant County, Texas (DRTCT), and being part of a called 17.000 acre tract
of land described by deed as "TRACT FOUR" to Cassco Land Co., Inc., recorded
in Volume 6494, Page 389, DRTCT, said 14.278 acre tract of land being more
particularly described as follows:
BEGINNING at a 1/2-inch iron rod set at the intersection of the north
right-of-way line of Xxxxxxx Plaza (an 80-foot right-of-way) and the west
right-of-way line of South Xxxxx Street (a 120-foot right-of-way);
THENCE along said north right-of-way line the following:
North 89DEG.51'00" West, a distance of 48.27 feet to a 1/2-inch iron
rod set for the beginning of a curve to the left having a central angle of
11DEG.50'55" and a radius of 762.79 feet;
Along said curve of the left an arc distance of 157.74 feet and a chord
bearing and distance of South 84DEG.13'32" West 157.46 feet to a 1/2-inch
iron rod set for the point of tangency;
South 78DEG.18'00" West, a distance of 416.34 feet to 1/2-inch iron rod
set for the beginning of a curve to the right having a central angle of
18DEG.54'30" and a radius of 1128.51 feet;
Along said curve to the right an arc distance of 372.42 feet and a chord
bearing and distance of South 87DEG.45'15" West 370.73 feet to a
1/2-inch iron rod set for the beginning of a compound curve to the right
having a central angle of 22DEG.21'07" and a radial bearing and
distance of North 07DEG.05'18" East 634.45 feet;
Along said compound curve to the right an arc distance 247.51 feet and a
chord bearing and distance of North 71DEG.44'09" West 245.94 feet to a
1/2-inch iron set for the southeast corner of XXX 0, XXXXX X xx XXXXXXX
XXXX ADDITION described by plat recorded in Volume 388-140, Page 19,
PRTCT;
THENCE along the southeast and northeast lines of said XXX 0 xxx xxxxxxxxx:
Xxxx 0 xx 0
Xxxxx 00XXX.00'00" East, a distance of 295.00 feet to a 1/2-inch iron
rod found for corner;
North 48DEG.30'00" West, a distance of 205.00 feet to a 1/2-inch iron
rod set for the north corner of said LOT 5, said corner being in the
southeast right-of-way line of Kingsridge Road (a 60-foot right-of-way)
and in a non-tangent curve to the left having a central angle of
16DEG.32'57" and a radial bearing and distance of North 47DEG.39'34"
East 830.00 feet;
THENCE along said southeast right-of-way line and said curve to the left an
arc distance of 239.74 feet and a chord bearing and distance of North 34DEG.
03'57" East 238.90 feet to a 1/2-inch iron rod found for the southwest corner
of XXX 0, XXXXX X xx XXXXXXX XXXX ADDITION described by plat recorded in
Volume 388-74, Page 2, PRTCT;
THENCE along the south lines of said XXX 0 xxx xxxxxxxxx:
Xxxxx 00XXX.00'00" Xxxx, a distance of 303.48 feet to a 1/2-inch iron
rod found for corner;
North 84DEG.46'00" East, a distance of 801.45 feet to a 1/2-inch iron
rod set for corner in the west right-of-way line of the aforementioned
South Xxxxx Street, said corner being in a non-tangent curve to the right
having a central angle of 09DEG.31'21" and a radial bearing and distance
of South 80DEG.37'39" West 1287.60 feet;
THENCE along said west right-of-way line the following:
Along said curve to the right an arc distance of 214.00 feet and a chord
bearing and distance of Xxxxx 00XXX.00'00" Xxxx 303.48 feet to a 1/2-inch
iron rod set for the point of tangency;
South 00DEG.09'00" West, a distance of 281.00 feet to the POINT OF
BEGINNING;
CONTAINING a computed area of 621,931 square feet or 14.278 acres of land.
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