EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("AGREEMENT") is made as of the 12th day
of December, 2005 (the "EFFECTIVE DATE"), by and between RadioShack Corporation,
a Delaware corporation ("SELLER"), and KAN AM XXXXX KAPITALANLAGEGESELLSCHAFT
MBH, a German limited liability company ("BUYER"), for the benefit of the
KanAm-grundinvest Fonds, a German open-end real estate fund sponsored by Kan Am
Xxxxx Kapitalanlagegesellschaft mbH (the "FUND").
In consideration of the mutual covenants and agreements herein contained,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. SALE AND PURCHASE.
(a) Seller hereby agrees to sell, transfer and convey to Buyer, and Buyer
hereby agrees to purchase and accept from Seller, in each case for the Purchase
Price (as defined in Section 2(a) below) and on and subject to the other terms
and conditions set forth in this Agreement, the following (collectively, the
"PROPERTY"):
(i) That parcel of land containing approximately 18.688 acres, with
the corresponding legal description and address listed on EXHIBIT A
attached hereto and made a part hereof, together with all of Seller's
right, title and interest, if any, in and to all easements, rights of way,
appurtenances, strips and gores of land, water rights and other interests,
rights and benefits thereunto belonging, and to all public or xxxxxxx
xxxxxxx, xxxxx, xxxxxxx, alleys, or passageways, open or proposed, on or
abutting the parcel of land (collectively, the "LAND").
(ii) All buildings and other improvements on, over, under or to the
Land, including a five building office campus containing approximately
875,694 square feet (the "BUILDINGS"); a 2,362 space structured garage and
all parking areas on the Land; all landscaped and hardscaped areas and
features; and Seller's right, title and interest in all systems, building
fixtures, amenities, facilities, machinery and equipment used in the
operation of the facility and other improvements, conduits, ducts, hot
water heaters, oil burners, domestic water systems, and installations
including those used to provide fire protection, heat, exhaust,
ventilation, air conditioning, electrical power, security, light,
plumbing, refrigeration, gas, sewer and water thereto, all elevators,
escalators, canopies, and the physical structure of all signs (excluding
any right to use any trade names, trademarks or service marks of Seller
depicted on the signs), which are used for the operation of the Buildings
(collectively, the "IMPROVEMENTS").
(iii) Seller's right, title and interest in the intangible property
used in connection with the Land and Improvements including, without
limitation, all contract rights, guarantees, architectural drawings, plans
and specifications, contracts, licenses, permits, registrations and
warranties relating to the ownership, construction, or occupancy of the
Land or the Improvements, or both (the "INTANGIBLE PERSONAL PROPERTY").
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(b) Notwithstanding anything to the contrary, the Property conveyed by
Seller to Buyer pursuant to this Agreement shall not include any of the
following (collectively, the "EXCLUDED PROPERTY"):
(i) Any interest in the oil and gas (collectively, the "MINERALS")
under the Property and that may be produced from the Property. Seller's
retention of the Minerals shall be subject to the applicable terms and
provisions set forth in the REA (as defined in Section 20 below).
(ii) The Excluded Fixtures (as defined in the Lease (which is
defined in Section 7(b) below)).
(iii) Any trade names, service marks, trademarks, patents, other
intellectual property, trade secrets, phone numbers and the like which are
associated with Seller's business, as well as any and all rights to place
names and signage upon the Property for so long as the Lease is in
existence, which are and shall remain the sole property of Seller.
(iv) All economic development incentives including, but not limited
to, economic development grants and property tax abatements and
reimbursements previously or at any time granted to Seller by the City of
Fort Worth, the Tax Increment Reinvestment Zone Number Six, City of Fort
Worth, Texas, or any other Governmental Authority (as defined in the
Lease) (the "EXCLUDED INCENTIVES"); provided, however, upon the expiration
or termination of the Lease, Seller shall assign to Buyer all of Seller's
interests in the Excluded Incentives, to the extent assignable. Copies of
the Excluded Incentives have been delivered to Buyer pursuant to the
Confidentiality Agreement (as defined in Section 5(a)(xiv) below).
(v) During the continuance of the Lease, Seller shall retain the
originals of all documents evidencing or relating to any of the Intangible
Personal Property, and to the extent applicable, no changes or amendments
to such documents will be made reflecting any change in the ownership of
the Intangible Personal Property until the Lease is terminated or expires
pursuant to its terms, but (i) true and correct copies of all such
documents shall be delivered to Buyer at Closing and (ii) all such
original documents shall be delivered to Buyer at the termination or
expiration of the Lease.
(c) The Property shall be conveyed subject to the Permitted Encumbrances
(as defined in Section 3(b) below).
2. PURCHASE PRICE; XXXXXXX MONEY.
(a) The purchase price for the Property (the "PURCHASE PRICE") shall be
Two Hundred Twenty-Two Million and No/100 Dollars ($222,000,000.00) which,
subject to the terms and conditions hereinafter set forth, shall be paid to
Seller by Buyer at the Closing.
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(b) The Purchase Price, subject to adjustments as set forth herein, shall
be paid at Closing by wire transfer of immediately available federal funds,
transferred to the order or account of Seller or such other person as Seller may
designate in writing.
(c) Within three (3) business days after the Effective Date, Buyer shall
deliver to Title Company (defined in Section 3(a) below) Five Million and No/100
Dollars ($5,000,000.00) ("XXXXXXX MONEY"), either by wire transfer or by a
certified or cashier's check payable to the order of Title Company, which
Xxxxxxx Money shall be held in accordance with the terms of Section 22 below.
The Xxxxxxx Money will be held in escrow in an interest-bearing account accruing
to the benefit of the party entitled to receive the Xxxxxxx Money under this
Agreement. Delivery of the Xxxxxxx Money is a condition precedent to the
effectiveness of this Agreement. If the contemplated transaction is consummated
in accordance with this Agreement, the Xxxxxxx Money, and all interest earned
thereon, will be applied to the Purchase Price at Closing. If the transaction is
not so consummated, the Xxxxxxx Money, and all interest earned thereon, will be
held and delivered by Title Company as provided below.
3. TITLE EXCEPTIONS.
(a) Attached as EXHIBIT I is a Commitment for Title Insurance (the "TITLE
COMMITMENT") issued by Republic Title of Texas, Inc., as agent for First
American Title Insurance Company ("TITLE COMPANY"), which was delivered to Buyer
pursuant to the Confidentiality Agreement (as defined in Section 5(a)(xiv)
below). At Buyer's request and to the extent available, a supplemental title
commitment shall be issued from the Title Company with the following
endorsements: comprehensive, survey amendment, access and such other
endorsements as may be available in Texas. In addition, Seller has delivered to
Buyer pursuant to the Confidentiality Agreement that certain Survey of the
Property (the "SURVEY") prepared by Xxxxxx & Xxxxxxx, Inc.
(b) At Closing, provided that neither Buyer nor Seller has terminated this
Agreement pursuant to the terms hereof, Seller shall transfer title to the
Property to Buyer pursuant to the Deed, subject only to (i) the Existing Leases
(as defined in Section 5(a)(iii) below) as such are converted to subleases under
the Lease or otherwise subordinated to the Lease as provided in Section
5(a)(iii) hereof, (ii) any matter shown on the Title Commitment to which Buyer
does not object pursuant to Section 3(c) below, (iii) any matter shown on the
Survey to which Buyer does not object pursuant to Section 3(c) below, and (iv)
any other matter which appears on any supplemental title commitment issued by
Title Company or any new or revised Survey (a "TITLE UPDATE") subsequent to the
date hereof to which Buyer does not object pursuant to Section 3(c) below or to
which Buyer initially objects but such objection is thereafter waived by Buyer
pursuant to Section 3(d) below ("PERMITTED ENCUMBRANCES").
(c) Title Company will deliver all Title Updates and all other related
documents (including copies of all title exception documents) simultaneously to
Seller and Buyer. Within three (3) business days after the Effective Date, Buyer
shall forward to Seller a written statement ("TITLE DEFECT NOTICE") specifying
all exceptions to title identified in the Title Commitment, the Survey or the
Title Update (as applicable) which are objectionable to Buyer in Buyer's sole
and absolute discretion ("TITLE DEFECTS"), it being acknowledged and agreed that
Buyer may notify
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Seller of any Title Defects determined by Buyer in its sole and absolute
discretion. Notwithstanding anything to the contrary herein, Seller shall be
obligated to cure the following title exceptions or defects affecting the
Property that exist of record prior to Closing: (i) liens and security interests
securing any loan to Seller, and any other liens or security interests created
by documents executed by Seller to secure monetary obligations, other than liens
for ad valorem taxes and assessments for the current calendar year and (ii) any
liens or encumbrances resulting from Seller's intentional breach of its covenant
not to encumber the Property pursuant to Section 13 hereof.
(d) If Buyer timely gives a Title Defects Notice to Seller, Seller shall
have the right, but not the obligation, to cure such Title Defects, and Seller
agrees to notify Buyer in writing no later than three (3) business days after
its receipt of the Title Defect Notice whether or not it intends to cure same.
If Seller notifies Buyer within such three (3) business day period of its intent
to cure any such Title Defects on or before Closing, then Seller shall on or
before Closing cure the same so that the Title Company will omit the same from
the Owner Policy (as defined in Section 8(b)(3) below) or endorse over or
affirmatively insure the same for the benefit of Buyer in a manner reasonably
satisfactory to Buyer. If Seller fails to so notify Buyer of Seller's intent to
cure any such Title Defects within such three (3) business day period, Seller
shall be deemed to have elected not to cure such Title Defects and Buyer, as
Buyer's sole and exclusive remedy hereunder, shall have the right to either (i)
terminate this Agreement by giving written notice thereof to Seller and Title
Company at any time within three (3) business days after the expiration of such
three (3) business day period, in which case Buyer shall be entitled to a full
refund of the Xxxxxxx Money and neither party will have any further obligations
one to the other except as set forth in Sections 4(c)(1), 4(c)(3), 12 and 15, or
(ii) waive such Title Defects and consummate the purchase of the Property
subject to such Title Defects which shall be deemed to be Permitted
Encumbrances, but with no change in any of Buyer's obligations hereunder and
with no reduction in the Purchase Price attributable to the Title Defects. A
failure to terminate within such three (3) business day period shall be deemed
an election by Buyer to waive such Title Defects.
(e) The failure of Buyer to timely give a Title Defect Notice on or before
the applicable deadline specified in Section 3(c) above shall be deemed an
irrevocable waiver of Buyer's right to object to any Title Defects set forth in
such Title Update or any new or revised Survey (as applicable) issued prior to
such deadline. Notwithstanding anything in this Agreement to the contrary,
Seller agrees that at or prior to the Closing, Seller shall take such action as
is necessary to cause the satisfaction of the requirements set forth in items 1,
2, 4, 5, 7 and 8 of Schedule C of the Title Commitment so that the Owner Policy
(as defined in Section 8(b)(3) below) delivered to Buyer at the Closing contains
no exception to coverage for any such items.
4. FEASIBILITY PERIOD.
(a) As used in this Agreement, "FEASIBILITY PERIOD" means the period
beginning on the Effective Date and ending at 5:00 p.m., Fort Worth, Texas time,
on the third (3rd) business day after the Effective Date.
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(b) Buyer may terminate its obligation to purchase the Property at any
time during the Feasibility Period if Buyer, in its sole discretion, concludes
that the Property is not suitable for any reason. Buyer must exercise its
termination rights under this Section 4(b) by delivering written notice to
Seller and the Title Company at any time prior to the expiration of the
Feasibility Period. Upon Title Company's receipt of such a notice during the
Feasibility Period, Title Company shall deliver the Xxxxxxx Money to Buyer, and
neither party will have any further rights or obligations under this Agreement,
except as set forth in Sections 4(c)(1), 4(c)(3), 12 and 15. If Buyer does not
send such a notice prior to the expiration of the Feasibility Period, it will be
deemed to have elected to proceed with purchasing the Property, and Buyer and
Seller shall continue to comply with all applicable provisions of this Agreement
including, but not limited to, the provisions relating to the Closing in
Sections 7 and 8.
(c) (1) Seller will permit Buyer and its contractors and agents to enter
upon the Property to inspect and test the Property (including soil borings
and environmental tests) as Buyer deems necessary or desirable, and all at
Buyer 's sole cost and expense. Buyer must repair any damages to the
Property resulting from any inspection or testing conducted by it or at
its direction. Buyer shall provide reasonable advance notice (no less than
24 hours) to Seller, and the parties shall cooperate in the scheduling of
any such inspections and tests. BUYER AGREES TO INDEMNIFY AND DEFEND
SELLER, AND HOLD SELLER HARMLESS FROM AND AGAINST, ALL LIENS, CLAIMS, AND
LIABILITY ARISING OUT OF OR RELATED TO BUYER'S OR ITS CONTRACTORS' OR
AGENTS' INSPECTIONS AND TESTS IN ACCORDANCE WITH THIS SECTION 4(c),
INCLUDING PERSONAL INJURIES OR DEATH.
(2) Before Buyer or any of its contractors or agents may enter onto
the Property for its inspections or tests or otherwise, Buyer shall
provide Seller with certificates of insurance evidencing that each of
Buyer's contractors and/or agents who enter upon the Property carries
commercial general liability insurance (on an occurrence basis) with a
combined single limit of not less than One Million Dollars ($1,000,000)
per occurrence during the period that these parties are on the Property.
Each policy must be issued by an insurance company licensed to do business
in the State of Texas and reasonably acceptable to Seller and under a form
of policy reasonably satisfactory to Seller. Seller must be included as an
additional insured under all insurance policies. The insurance may not be
cancelled or amended except upon thirty (30) days' prior written notice to
Seller.
(3) In connection with the Confidentiality Agreement and Buyer's
inspection of the Property pursuant to this Section 4, Seller has provided
or made available to Buyer true and complete copies of the documents,
materials, records, data, drawings, specifications, engineering and
environmental reports and other documents listed on SCHEDULE 4(c)(3)
(collectively "DOCUMENTS"), which shall be deemed to be "Confidential
Information" under the Confidentiality Agreement. Buyer will require its
contractors, agents, investors, and prospective lenders to keep
confidential all information set forth in the Documents as provided in the
Confidentiality Agreement.
(4) Buyer's obligations and indemnity under this Section 4(c)
survive the Closing or earlier termination of this Agreement. Buyer shall
return to Seller its copies of
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all Documents if Buyer terminates its obligation to purchase the Property
under Section 4(b) hereof.
(d) As consideration for holding the Property available for its purchase
during the Feasibility Period, Buyer has paid Seller $100.00 ("INDEPENDENT
CONTRACT CONSIDERATION"), which Seller may retain even if this Agreement is
terminated. The Independent Contract Consideration does not apply to the
Purchase Price.
5. REPRESENTATIONS AND WARRANTIES OF SELLER.
(a) Subject to all matters disclosed in the Documents actually delivered
to Buyer or on any exhibit attached hereto, and subject to any information
discovered by Buyer or other information disclosed in writing to Buyer by Seller
or any other person after the date hereof and prior to the Closing (all such
matters being referred to herein as "EXCEPTION MATTERS"), Seller represents and
warrants to Buyer and agrees with Buyer as follows:
(i) Seller is a corporation organized and validly existing under the laws
of the State of Delaware, is qualified to do business and is in good
standing in the State of Texas, and has all requisite power and authority
to enter into this Agreement and all related agreements and perform its
obligations hereunder. The execution and delivery of this Agreement by
Seller has been duly authorized. This Agreement and any other documents
executed in connection herewith have been duly executed and delivered, and
are legally valid obligations of Seller, enforceable in accordance with
their terms.
(ii) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereunder on the part of Seller do not and
will not conflict with or result in the breach of any material terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge, or encumbrance upon any of the Property or
assets of Seller by reason of the terms of any contract, mortgage, lien,
lease, agreement, indenture, instrument or judgment to which Seller is a
party or which is binding upon Seller or which otherwise affects Seller,
which will not be discharged or released at Closing.
(iii) There are no leases or occupancy agreements currently in effect
which affect the Property as of the Effective Date, except the two (2)
leases that are described on EXHIBIT B attached hereto (the "EXISTING
LEASES"). It shall be a condition to Buyer's obligation to consummate this
transaction that the Existing Leases shall be converted to subleases under
or otherwise subordinated to the Lease at or prior to Closing in a manner
reasonably acceptable to Buyer. It is acknowledged that any such sublease
or subordination agreement shall provide the following: (A) the tenants
under the Existing Leases will look solely to Seller, as the lessee under
the Lease, to perform all of the obligations under the Existing Leases and
shall have no recourse against Buyer, as the owner of the Property; and
(B) in the event of the termination or expiration of the Lease, the
Existing Leases will terminate and the tenants thereunder shall have no
rights thereafter under the Existing Leases or with respect to the leasing
or occupancy of any portion of the Property.
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(iv) Seller has not received any written notice of any pending or
contemplated condemnation, eminent domain or similar proceeding with
respect to all or any portion of the Property; provided, however, Buyer
acknowledges that Seller has disclosed to Buyer the general concept of the
Trinity River Vision project and that this representation is subject
thereto. To Seller's current actual knowledge, no portion of the Property
is proposed to be taken as part of the Trinity River Vision project.
(v) Seller has not received written notice of any existing violations of
any federal, state, county or municipal laws, ordinances, orders, codes,
regulations or requirements affecting the Property which have not been
cured.
(vi) To Seller's current actual knowledge, there is no action, suit or
proceeding pending or threatened against or affecting the Property, or
arising out of the ownership, management or operation of the Property,
this Agreement, or the transactions contemplated hereby.
(vii) Seller is not a "foreign person" as defined in Section 1445(f)(3) of
the Internal Revenue Code.
(viii) There are no contracts affecting the Property or Seller's right,
title and interest therein which would be binding upon Buyer after Closing
or which would run with the Property, except Permitted Encumbrances. All
contracts executed by Seller with respect to the management, maintenance,
repair and operation of the Property shall not be assigned to Buyer at
Closing but shall remain the responsibility of Seller thereafter.
(ix) The certificates of occupancy attached as EXHIBIT C hereto are true
and complete copies of all of the certificates of occupancy required for
the occupancy and operation of the Improvements. No applications are
pending to amend such certificates of occupancy, and there are no pending
or, to Seller's current actual knowledge, threatened proceedings to
cancel, amend or revoke such certificates of occupancy.
(x) All water, sewer, gas, electric, telephone, cable, drainage
facilities, and other utilities required by applicable legal requirements
or by the use and operation of the Property are installed to the property
lines of the Property, are connected to the Improvements pursuant to valid
permits, are adequate to service the Property for its current use and so
as to comply with applicable legal requirements, are in good working order
and repair, and enter and exit the Property, as the case may be, directly
through either (A) public rights-of-ways, (B) valid and recorded easements
for the benefit of the Property, (C) the easements to be established by
the Plat described in Section 21 hereof which shall be recorded prior to
the Closing or (D) the easements to be granted at the Closing pursuant to
the REA described in Section 20 hereof; all driveways, roads, sidewalks
and other vehicular and pedestrian passageways located on the Property
comply with all applicable legal requirements and enter and exit the
Property, as the case may be, through one of the means described in the
foregoing (A)-(D); and all other easements and rights necessary for the
continued operation, maintenance, use and
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occupancy of the Property (such as, without limitation, slope, support,
foundation, drainage and encroachment easements) have been or will be
validly created for the benefit of the Property pursuant to the easements
referred to in the foregoing (B)-(D).
(xi) To Seller's current actual knowledge, there are no authorizations,
consents or approvals of and filings with any Governmental Authority or
any other person or entity required with respect to Seller for the
execution and delivery of the documents contemplated by this Agreement and
the performance of its obligations thereunder and under the Lease.
(xii) To Seller's current actual knowledge, Seller has not received any
environmental indemnities from prior owners of the Property.
(xiii) To Seller's current actual knowledge, the Property, including the
use and operation thereof, is in substantial compliance with all
applicable legal requirements, including without limitation, the Americans
With Disabilities Act, Public Law 101-336, as codified, and with all
applicable requirements of every Governmental Authority, including without
limitation, zoning, subdivision, building and environmental requirements.
To Seller's current actual knowledge, (A) except for the Excluded
Incentives, there are no special or preferential assessments in effect
with respect to the Property, and (B) except for Permitted Encumbrances
there are no written agreements with any Governmental Authority which
affect the Property.
(xiv) Pursuant to that certain Confidentiality Agreement by and between
Seller and Buyer dated as of November 15, 2005 ("CONFIDENTIALITY
AGREEMENT"), Seller has delivered to Buyer, among other things, copies of
the Phase I Environmental Site Assessment (including a limited asbestos
survey) dated May 14, 2001 and the Phase II Environmental Site Assessment
dated June 4, 2001, both prepared by Xxxxxx & Xxxxxxx, Inc. To Seller's
current actual knowledge, Seller has received no written notice from any
Governmental Authority of any violation of any Environmental Laws (as
defined in the Lease) in relation to the Property.
(xv) Subject to the Permitted Encumbrances, there are no declarations or
covenants, conditions and restrictions or similar agreements that run with
the Land to which Seller is a party or by which Seller or the Property, or
any portion thereof, may be bound.
(xvi) To Seller's current actual knowledge, Seller has not received
written notice or demand from any of the insurers of all or any portion of
the Property (or insurers of any activities conducted thereon) to correct
or change any physical condition on the Property or any practice of
Seller.
(xvii) To Seller's current actual knowledge, Seller has not received any
written notice that the Property is or will be subject to or affected by
any moratoria on additional developments or expansions.
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(xviii) To Seller's current actual knowledge, Seller has received no
written notice from any Governmental Authority of (A) any pending or
contemplated change in any federal, state or local governmental or private
restriction applicable to the Property, (B) any pending or threatened
judicial or administrative action applicable to the Property, or (C) any
action pending or threatened by adjacent land owners or other persons,
which would result in a material adverse change in the condition of the
Property, or any part thereof, or in any material way prevent or limit the
operation of the Improvements or any part thereof.
(xix) Seller has not prepared or submitted any plans relating to the
development of Seller's Adjacent Property (as described in Section 21
hereof) and has not entered into any agreement or conducted negotiations
or discussions with any third party relating to the sale or development of
Seller's Adjacent Property.
(b) As used in this Agreement, or in any other agreement, document,
certificate or instrument delivered by Seller to Buyer, the phrase "TO SELLER'S
CURRENT ACTUAL KNOWLEDGE" or any similar phrase shall mean the current actual,
not constructive or imputed, knowledge of Xxxx Xxxxx and Xxxxxxx Xxxxxx.
(c) Buyer agrees to inform Seller promptly in writing if it discovers that
any representation or warranty of Seller is inaccurate in any material respect,
or if it believes that Seller has failed to deliver to Buyer any document or
material which it is obligated to deliver hereunder.
(d) The representations and warranties set forth in this Section 5, as
updated by the certification to be delivered by Seller pursuant to Section
8(b)(11) hereof, shall be for the benefit of Buyer and its respective successors
and assigns and shall be binding upon Seller and each of its successors and
assigns and shall survive the Closing for a period of one (1) year from the date
of the Closing after which time they will terminate and be of no further force
or effect. Subject to the terms and provisions set forth herein, Seller shall,
as Buyer's exclusive remedy, defend, indemnify and hold harmless Buyer and its
successors and assigns, from and against any and all liabilities, losses,
damages, costs, expenses (including without limitation reasonable attorneys'
fees and expenses), causes of action, suits, claims, demands or judgments should
any representation or warranty set forth in this Section 5 prove to have been
untrue or inaccurate in any material respect when made. No right of rescission
shall be available to Buyer or its successors and assigns if any representation
or warranty set forth in this Section 5 shall prove to have been untrue or
inaccurate in any material respect when made.
6. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. All of Buyer's obligations
hereunder are expressly conditioned on the satisfaction at or before the time of
Closing hereunder, or at or before such earlier time as may be expressly stated
below, of each of the following conditions (any one or more of which may be
waived in writing in whole or in part by Buyer, at Buyer's option), and in the
event that any of the conditions set forth below has not so been fully satisfied
or waived, then Buyer shall have the right, in its discretion, to terminate this
Agreement by notice to Seller, whereupon this Agreement shall terminate, the
Xxxxxxx Money shall be returned to
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Buyer, and Seller and Buyer shall have no further obligations hereunder except
for any obligations which expressly survive the termination of this Agreement:
(i) All of the representations and warranties of Seller contained in this
Agreement shall have been true and correct in all material respects when made,
and shall be true and correct in all material respects on the date of Closing
with the same effect as if made on and as of such date.
(ii) Seller shall have performed, observed and complied in all material
respects with all covenants, agreements and conditions required by this
Agreement to be performed, observed and complied with on its part prior to or as
of Closing hereunder.
(iii) All instruments and documents required on Seller's part to
effectuate this Agreement and the transactions contemplated hereby shall be
delivered to Buyer and shall be in form and substance consistent with the
requirements herein.
(iv) The Title Company's commitment to issue the Owner Policy in the form
required by the Title Commitment, as the same may have been supplemented, in the
full amount of the Purchase Price.
(v) The Existing Leases shall be converted to subleases under the Lease or
otherwise subordinated to the Lease in the manner described in Section 5(a)(iii)
hereof.
(vi) The Plat (as defined in Section 21 below) has been recorded in the
Plat Records of Tarrant County, Texas pursuant to the requirements of Section 21
below.
7. LEASES; WARRANTIES.
(a) During the term of this Agreement, Seller shall not convey the
Property nor enter into any new lease of the Property or similar agreement
without the prior written consent of Buyer, which shall not be unreasonably
withheld, conditioned or delayed; provided, however, any such new lease or
similar agreement shall comply with the provisions of Section 5(a)(iii)
applicable to the Existing Leases.
(b) At Closing, Seller and Buyer (or a Buyer Affiliate (as defined in
Section 17 below) shall enter into a lease agreement between the Buyer (or a
Buyer Affiliate), as landlord, and Seller, as tenant, for the Property in the
form attached as EXHIBIT D hereto (the "LEASE"). Refusal by Buyer or Seller to
execute the Lease at Closing in the form attached as EXHIBIT D, with such
immaterial corrections and conforming changes as may be reasonably required by
Buyer or Seller and reasonably acceptable to the other party, shall be deemed a
default under this Agreement on the part of the refusing party.
(c) Seller has delivered or made available to Buyer a copy of each
material guaranty or warranty listed in SCHEDULE 4(c)(3) hereof relating to the
design or construction of the Improvements (collectively, "WARRANTIES") which
are in effect as of the date of Seller's
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execution of this Agreement and are in Seller's actual possession, or reasonably
available to Seller.
8. CLOSING; DELIVERIES.
(a) The closing ("CLOSING") shall take place at 12:00 noon Fort Worth,
Texas time on December 21, 2005 at the offices of the Title Company, or on such
other date as may be agreed to in writing by both Seller and Buyer ("CLOSING
DATE"), subject, however, to the provisions of Section 21 hereof relating to the
extension of the Closing Date.
(b) At Closing, Seller shall deliver to Buyer the following, and it shall
be a condition to Buyer's obligation to close that Seller shall have delivered
the same to Buyer:
(1) a Special Warranty Deed ("DEED") to the Property from Seller, duly
executed and acknowledged by Seller and substantially in the form of
EXHIBIT E, subject to the Permitted Encumbrances.
(2) Two (2) original counterparts of an Assignment of Warranties and
Permits and Xxxx of Sale from Seller for the Property, substantially in
the form of EXHIBIT F, duly executed by Seller.
(3) The Title Company's irrevocable commitment to issue a TLTA Owner
Policy of Title Insurance ("OWNER POLICY") to Buyer, at Seller's expense,
for the Purchase Price insuring that, upon Closing, Buyer is the owner of
indefeasible fee simple title to the Property subject only to the
Permitted Encumbrances and the standard printed exceptions included in a
Texas Standard Form Owner Policy of Title Insurance, and containing, at
Buyer's expense, the following endorsements (if available): comprehensive,
survey amendment, access and such other endorsements as may be available
in Texas. Without limiting the generality of the foregoing, the printed
form exception for restrictive covenants must be deleted unless one or
more restrictive covenants are included among the Permitted Encumbrances;
there must be no exception for rights of parties in possession (except for
the Existing Leases and the Lease), and the standard exception for taxes
must read: "Standby fees, taxes and assessments by any taxing authority
for the year 2006 and subsequent years, and subsequent taxes and
assessments by any taxing authority for prior years due to change in land
usage or ownership."
(4) Seller's affidavit setting forth its U.S. Taxpayer Identification
Number, its office address, and its statement that it is not a "foreign
person" as defined in Internal Revenue Code Section 1445(f)(3), as
amended.
(5) Four (4) original counterparts of the Lease, duly executed by Seller
as tenant thereunder.
(6) A Memorandum of Lease concerning the Lease, substantially in the form
attached hereto as EXHIBIT G, duly executed by Seller. The Memorandum of
Lease shall be filed
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of record by the Title Company immediately after the filing of the Deed by
the Title Company.
(7) An original Secretary's Certificate executed by a secretary of Seller
containing resolutions authorizing the sale of the Property and the
execution and delivery of the Lease.
(8) An original incumbency certificate for Seller.
(9) Original good standing certificates for Seller from the Delaware and
Texas Secretaries of State.
(10) True and correct copies of all documents evidencing or relating to
any of the Intangible Personal Property.
(11) A certification by Seller that all representations and warranties
made by Seller in Section 5 of this Agreement are true and correct in all
material respects on the date of Closing.
(12) The REA, duly executed and acknowledged by Seller.
(13) Possession and occupancy of the Property, subject to the Permitted
Encumbrances and the Existing Leases and the Lease.
(14) Four (4) original counterparts of a closing statement (the "CLOSING
STATEMENT") for the purchase and sale of the Property, in form and
substance reasonably acceptable to Buyer and Seller; provided, however,
Seller will use its good faith efforts to deliver to Buyer a proforma
Closing Statement at least three (3) business days prior to Closing.
(15) An original title affidavit in the form attached hereto as EXHIBIT K
and any other customary documents of assurance required by the Title
Company to issue the Owner Policy in the form required pursuant to Section
8(b)(3).
(16) A legal opinion from the General Counsel of Seller, opining as to the
due authorization by Seller of the purchase and sale of the Property
hereunder and the due authorization, execution and delivery by Seller of
the Lease, and a legal opinion from Seller's outside counsel, Xxxxxx Xxxxx
Xxxxxxx & Xxxxxxx, L.L.P., opining as to the validity and enforceability
of the Lease against Seller, which legal opinions shall be in form and
substance reasonably satisfactory to Purchaser and Purchaser's counsel,
with reasonable and customary qualifications and assumptions.
(17) Immediately available funds via wire transfer in the amount equal to
the basic rent payable under the Lease for the month in which the Closing
occurs.
(18) The certificates of insurance, together with reasonable evidence of
payment of the premiums therefor, required under Paragraph 12(b) of the
Lease.
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(19) The letter of credit in the amount of $5,000,000 required under
Paragraph 44 of the Lease.
(20) The side letter relating to the Lease in the form attached hereto as
EXHIBIT M.
(21) All other instruments and documents reasonably required by the Title
Company to issue the Owner Policy and/or to effectuate this Agreement and
the transactions contemplated hereby.
(c) At Closing, Buyer shall deliver to Seller the following, and it shall
be a condition to Seller's obligation to close that Buyer shall have delivered
the same to Seller:
(1) Immediately available funds via wire transfer in the amount equal to
the Purchase Price less the Xxxxxxx Money and any interest earned thereon
(subject to any adjustments provided for in this Agreement).
(2) A certification by Buyer that all representations and warranties made
by Buyer in Section 16 of this Agreement are true and correct in all
material respects on the date of Closing.
(3) Four (4) original counterparts of the Lease, duly executed by Buyer as
landlord thereunder.
(4) The Memorandum of Lease duly executed by Buyer.
(5) Four (4) original counterparts of the Closing Statement.
(6) The REA, duly executed and acknowledged by Buyer.
(7) The side letter relating to the Lease in the form attached hereto as
EXHIBIT M.
(8) All other instruments and documents reasonably required by the Title
Company to effectuate this Agreement and the transactions contemplated
hereby.
9. TAXES; CLOSING COSTS.
(a) Buyer agrees after the Closing, to the extent reasonably necessary for
Seller to continue to prosecute any tax abatement proceedings or to obtain the
economic development grants and/or tax incentives described in this Agreement,
to reasonably cooperate with Seller, at no cost to Buyer, and also agrees to
promptly endorse or pay over to Seller any such abatement amounts, grants and/or
incentives for such years received by Buyer.
(b) Seller and Buyer shall each pay their respective attorney's fees.
Seller shall pay the base premium for the Owner Policy, and Buyer may purchase,
at its expense, any additional coverage or endorsements in excess of the
standard TLTA Owner Policy. Seller shall pay for the
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Survey, any transfer taxes relating to the sale of the Property, and any lease
appraisal obtained by Seller. Buyer shall pay for any update to the Survey or if
Buyer causes a new survey to be prepared. All other escrow and closing costs
shall be paid in the customary fashion for transactions in the Fort Worth, Texas
area.
(c) Taxes, operating and maintenance expenses for the Property including,
but not limited to, gas, water, electricity and other utility charges, and any
other operating expenses and pre-paid expenses shall not be prorated at Closing,
since Seller shall be responsible for payment of all such expenses that are
attributable to the period prior to Closing as the Seller under this Agreement
and payment of all such expenses that are attributable to the period from and
after Closing shall be the responsibility of Seller in its capacity as tenant
under the Lease, as more particularly provided in the Lease.
10. DISCLAIMER.
(a) Subject to the representations and warranties of Seller contained in
Section 5 hereof, Buyer expressly acknowledges that the Property is being sold
and accepted AS-IS, WHERE-IS AND WITH ALL FAULTS and, except as expressly set
forth herein, Seller makes no representations or warranties with respect to the
physical condition or any other aspect of the Property, including, without
limitation, (i) the structural integrity of any Improvements on the Property,
(ii) the manner, construction, condition, and state of repair or lack of repair
of any of such Improvements, (iii) the conformity of the Improvements to any
plans or specifications for the Property, including but not limited to any plans
and specifications that may have been or which may be provided to Buyer, (iv)
the conformity of the Property to past, current or future applicable zoning or
building code requirements or the compliance with any other laws, rules,
ordinances, or regulations of any government or other body, (v) the financial
earning capacity or history or expense history of the operation of the Property,
(vi) the nature and extent of any right-of-way, lease, possession, lien,
encumbrance, license, reservation, condition, or otherwise, (vii) the existence
of soil instability, past soil repairs, soil additions or conditions of soil
fill, susceptibility to landslides, sufficiency of undershoring, sufficiency of
drainage, (viii) whether the Property is located wholly or partially in a flood
plain or a flood hazard boundary or similar area, (ix) the existence or
non-existence of asbestos, underground or above ground storage tanks, hazardous
waste or other toxic or hazardous materials of any kind or any other
environmental condition or whether the Property is in compliance with applicable
laws, rules and regulations, (x) the Property's investment potential or resale
at any future date, at a profit or otherwise, (xi) any tax consequences of
ownership of the Property, or (xii) any other matter whatsoever affecting the
stability, integrity, other condition or status of the Land or any Buildings or
other Improvements situated on all or part of the Property (collectively, the
"PROPERTY CONDITIONS"), and except as expressly set forth herein, BUYER HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL ACTUAL OR POTENTIAL RIGHTS
BUYER MIGHT HAVE REGARDING ANY FORM OF WARRANTY, EXPRESS OR IMPLIED, OR ARISING
BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO ANY WARRANTY OF
CONDITION, HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
relating to the Property, its Improvements or the Property Conditions, such
waiver being absolute, complete, total and unlimited in any way.
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(b) Subject to Seller's representations and warranties set forth in
Section 5 above, Buyer acknowledges that the Property may not be in compliance
with all regulations, rules, laws and ordinances that may apply to the Property
or any part thereof and the continued ownership, maintenance, management and
repair of the Property ("REQUIREMENTS"). Subject to Seller's obligations under
the Lease, Buyer shall be solely responsible for any and all Requirements,
Property Conditions, and all other aspects of the Property, whether the same
shall be existing as of the Closing Date or not. To the fullest extent permitted
by law, Buyer hereby waives any and all rights and benefits which it now has, or
in the future may have, conferred upon it by virtue of any applicable state,
federal, or local law, rule, or regulation as a result of any alleged inaccuracy
or incompleteness of the Confidential Information (as defined in the
Confidentiality Agreement) or the purchase of the Property, including, without
limitation, (i) the provisions of the Deceptive Trade Practices-Consumer
Protection Act of the State of Texas, (ii) any other comparable statute of the
State of Texas, and (iii) any environmental law, rule, or regulation whether
federal, state or local, including, without limitation, the Comprehensive
Response, Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601 et
seq.) as amended by the Superfund Amendments and Reauthorization Act of 1986,
and any analogous federal or state laws, including without limitation, the Texas
Solid Waste Disposal Act. With respect to Buyer's waiver of the above, Buyer
represents and warrants to Seller that: (a) Buyer is not in a significantly
disparate bargaining position; (b) Buyer is represented by legal counsel in
connection with the sale contemplated by this Agreement; and (c) Buyer is
knowledgeable and experienced in the purchase, operation, ownership,
refurbishing and sale of commercial real estate, and is fully able to evaluate
the merits and risks of this transaction. As part of the provisions of this
Section 10(b), but not as a limitation thereon, Buyer hereby agrees, represents
and warrants that the matters released herein are not limited to matters which
are known or disclosed. In this connection, to the extent permitted by law,
Buyer hereby agrees, represents, and warrants that it realizes and acknowledges
that factual matters now unknown to it may have given or may hereafter give rise
to causes of action, claims, demands, debts, controversies, damages, costs,
losses and expenses which are presently unknown, unanticipated and unsuspected,
and Buyer further agrees, represents and warrants that the waivers and releases
herein have been negotiated and agreed upon in light of that realization and
that Buyer nevertheless hereby intends to release, discharge and acquit Seller
from any such unknown causes of action, claims, demands, debts, controversies,
damages, costs, losses and expenses which might in any way be included in the
waivers and matters released as set forth in this Section 10(b) above, subject
to the representations and warranties of Seller contained in Section 5 hereof.
(c) Without limiting the generality of the foregoing, Buyer acknowledges
that except with respect to any Seller's representations and warranties set
forth in Section 5 above, Seller does not make any representations whatsoever as
to the presence or absence of hazardous substances or toxic wastes on the
Property, nor as to any disposal or release thereof on the Property at any time.
Other than as may arise in connection with a breach of a representation or
warranty of Section 5 hereof, BUYER HEREBY KNOWINGLY WAIVES AND RELEASES SELLER
FROM ALL CLAIMS THAT BUYER MAY NOW HAVE OR MAY BE ABLE TO ASSERT IN THE FUTURE
(INCLUDING, BUT NOT LIMITED TO, ANY ACTIONS BASED ON FEDERAL, STATE OR COMMON
LAW AND ANY COST-RECOVERY OR CONTRIBUTION CLAIM OR OTHER PRIVATE RIGHT OF ACTION
UNDER
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THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF
1980, AS AMENDED ("CERCLA"), THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976,
AS AMENDED, THE TEXAS SOLID WASTE DISPOSAL ACT, AS AMENDED, OR ANY OTHER STATE
OR FEDERAL LAW TO WHICH THE PROPERTY IS OR MAY BE SUBJECT, INCLUDING ANY CLAIMS
BASED ON THE STRICT LIABILITY OR CONCURRENT NEGLIGENCE OF SELLER) REGARDING THE
PHYSICAL CHARACTERISTICS OR CONDITION (INCLUDING THE PRESENCE OR RELEASE IN THE
SOIL, AIR, STRUCTURES, SURFACE OR SUBSURFACE WATERS, OR ELSEWHERE ON THE
PROPERTY, OF HAZARDOUS SUBSTANCES (AS DEFINED BY CERCLA) OR SUBSTANCES THAT HAVE
BEEN OR MAY IN THE FUTURE BE DETERMINED TO BE TOXIC, HAZARDOUS, UNDESIRABLE OR
SUBJECT TO REGULATION, TREATMENT OR REMOVAL), VALUATION, SALABILITY OR UTILITY
OF THE PROPERTY, OR ITS SUITABILITY FOR ANY PURPOSE WHATSOEVER. Buyer further
hereby assumes the risk of changes in applicable laws and regulations relating
to past, present and future environmental conditions on the Property.
Notwithstanding anything to the contrary, all of the terms and provisions
of this Section 10 shall survive the Closing.
11. DEFAULT; REMEDIES.
(a) In the event Buyer fails to close this transaction by the Closing
Date, other than due to Seller's default or termination hereof by Buyer pursuant
to the applicable provisions hereof, Seller shall be entitled to receive the
Xxxxxxx Money as liquidated damages as Seller's sole and exclusive remedy,
Seller and Buyer agreeing that actual damages due to Buyer's default hereunder
would be difficult and inconvenient to ascertain and that such amount is not a
penalty and is fair and reasonable in light of all relevant circumstances. This
Section 11(a) shall in no way limit Seller's remedies relating to any claim by
Seller arising under Sections 4(c)(1), 4(c)(3), 12 or 15 hereof.
(b) In the event that the closing of this transaction does not occur by
reason of Seller's default hereunder, Buyer may, at its option and as its sole
and exclusive remedy, either terminate this Agreement and receive a full and
immediate refund of the Xxxxxxx Money previously deposited, together with its
documented direct costs and expenses incurred in connection with its inspection
of the Property and negotiations of the transaction contemplated by this
Agreement, not to exceed $100,000.00, or seek to enforce specific performance of
this Agreement. In no event shall any consequential damages be recovered by
Buyer against Seller arising out of any alleged default under this Agreement.
12. CONFIDENTIALITY. Buyer agrees that the terms and provisions set forth in
this Agreement and in any exhibits or schedules attached hereto, including but
not limited to, the Lease, shall be deemed Confidential Information under the
Confidentiality Agreement. Buyer may disclose any Confidential Information
contained herein to Buyer's lender and to the employees, consultants,
accountants, investors, partners, and attorneys of Buyer or as required by
applicable law in accordance with the Confidentiality Agreement. Buyer agrees to
indemnify and hold harmless
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Seller from and against any and all losses, damages, claims and liabilities of
any kind (including, without limitation, reasonable attorneys' fees) arising out
of Buyer's breach of this Section 12.
13. PROPERTY MAINTENANCE. Seller shall maintain the Property from the date of
the full execution and delivery of this Agreement until the Closing in
substantially the same manner and condition (reasonable wear and tear, casualty,
depreciation and obsolescence excepted) as immediately before the full execution
and delivery of this Agreement. Except as may be otherwise expressly provided
herein, Seller shall not intentionally execute and record any documents in the
real property records which result in any liens or other encumbrances on the
Property which are not released on or prior to Closing; provided, however,
Seller may record that certain Easement for Public Access attached hereto as
EXHIBIT J on or prior to the Closing.
14. NOTICES. All notices and other communications provided for herein shall be
in writing and shall be sent to the addresses or facsimile numbers set forth
below (or such other address or number as a party may hereafter designate for
itself by notice to the other parties as required hereby) of the party for whom
such notice or communication is intended:
If to Seller: RadioShack Corporation
000 XxxxxXxxxx Xxxxxx, XX WF3 - 125
Xxxx Xxxxx, Xxxxx 00000
Attn.: Vice President -- Corporate Real Estate
Operations
Facsimile: (000) 000-0000
With a copy to:
RadioShack Corporation
000 XxxxxXxxxx Xxxxxx, XX CF4-101
Xxxx Xxxxx, Xxxxx 00000
Attn.: Vice President and General Counsel
Facsimile: (000) 000-0000
And with a copy to:
E. Xxxx Xxxxx
Xxxxxx Xxxxx Xxxxxxx & Farrier, L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to Buyer: Kan Am Xxxxx Kapitalanlagegesellschaft mbH
c/o WestWind Capital Partners, LP
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. XxXxxxxx
L. Xxxx Xxxxx
Xxxxxxxx X. Xxxx
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Facsimile: (000) 000-0000
With a copy to:
KanAm Xxxxx Kapitalanlagegesellschaft mbH
XxxxxXxxx
00000 Xxxxxxxxx Xx Xxxx
Attn: Olivier Catusse, Director
Facsimile: 011 49 69 7104 11 600
And with a copy to:
King & Spalding, LLP
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attn: W. Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to Title
Company: Republic Title of Texas, Inc.
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxxxxx Xxxxx
Facsimile: (000) 000-0000
Notices shall be sent by (i) U. S. registered or certified mail, postage
prepaid, return receipt requested, (ii) reputable overnight delivery service
providing proof of receipt, or (iii) hand delivery, or (iv) legible facsimile
transmission sent to the intended addressee at the addresses and/or numbers set
forth above, in which case they shall be deemed delivered on the date of actual
delivery to said offices or on the date of refusal to accept delivery, in the
case of (i), (ii) or (iii) above, or on the date of the facsimile transmission
(or the next business day if transmitted later than 5:00 p.m. in the recipient's
time zone), provided that an original of such facsimile is also sent to the
intended addressee by means described in clauses (i), (ii) or (iii) above. Any
notice delivered pursuant to clause (i), (ii) or (iii) above that is actually
received or deemed received pursuant to the foregoing provisions after 5:00 p.m.
(in the recipient's time zone) shall be deemed received on the next business
day. Either party may by written notice to the other party given as provided
hereunder change its address or facsimile number for service of Notice to any
other address or number. Any address so designated shall include a street
address for courier delivery.
15. BROKERS. Seller and Buyer represent and warrant to each other that neither
party has engaged any agent, broker, or other similar party in connection with
this transaction except Eastdil Realty Company, L.L.C. ("BROKER"), which
represents Seller. Seller shall pay to Broker a commission pursuant to separate
agreement. Each party agrees to indemnify and hold the other harmless from the
claims of any other agent, broker, or other similar party claiming by, through,
or under the indemnifying party. Buyer has been and is advised that it should
have the abstract
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covering the Property examined by an attorney of its selection or that it should
be furnished with a policy of title insurance. By signing this Agreement, Buyer
acknowledges that it has been so advised in compliance with The Texas Real
Estate License Act. The provisions of this Section 15 shall survive the Closing
or any termination of this Agreement.
16. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants that:
(a) Buyer is a limited liability company, duly organized, validly existing
and in good standing under the laws of the Federal Republic of Germany, and has
or will have by Closing, all requisite power and authority to enter into this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement by Buyer has been duly authorized. This Agreement, and all
other agreements executed in connection herewith, have been duly executed and
delivered by Buyer, and are legally valid obligations of Buyer, enforceable in
accordance with their terms.
(b) The execution and delivery of this Agreement and all related
agreements and the consummation of the transactions contemplated hereunder on
the part of Buyer does not and will not violate any applicable law, ordinance,
statute, rule, regulation, order, decree or judgment, conflict with or, as of
the Closing, result in the breach of any material terms or provisions of, or
constitute a default under, or, as of the Closing, result in the creation or
imposition of any lien, charge, or encumbrance upon any of the property or
assets of the Buyer by reason of the terms of any contract, mortgage, lien,
lease, agreement, indenture, instrument or judgment to which Buyer is a party or
which is or purports to be binding upon Buyer or which otherwise affects Buyer,
which will not be discharged, assumed or released at Closing. Except as follows
in this Section 16(b), no action by any federal, state or municipal or other
governmental department, commission, board, bureau or instrumentality is
necessary to make this Agreement a valid instrument binding upon Buyer in
accordance with its terms. Notwithstanding the foregoing, on or after the
Effective Date, Buyer shall request the approval of the transactions described
herein from (a) the Supervisory Board of the Fund and (b) X.X. Xxxxxxx & Co
KGaA, acting as the Depositary Bank of the Fund under the German law known as
the Investmentgesetz. If, prior to the expiration of the Feasibility Period,
Buyer notifies Seller in writing that the transactions described herein have
been disapproved by the persons or entities referred to in the preceding
sentence, then the Xxxxxxx Money will be refunded in full to Buyer and thereupon
this Agreement will be null and void and of no further force and effect
whatsoever, except as set forth in Sections 4(c)(1), 4(c)(3), 12 and 15.
(c) Buyer hereby acknowledges that, as of the Effective Date, Buyer has
been advised in writing that Buyer should have an abstract covering the Land
examined by an attorney of Buyer's own selection or that Buyer should be
furnished with or obtain a policy of title insurance.
(d) Buyer is not: (i) a plan which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), as defined in
Section 3(3) of ERISA, nor a plan as defined in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended (each of the foregoing hereinafter
referred to collectively as a "PLAN"); (ii) a "governmental plan" as defined in
Section 3(32) of ERISA; or (iii) a "party in interest," as defined in Section
3(14) of ERISA, to a Plan, except with respect to plans, if any, maintained by
Buyer, nor do the assets of
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Buyer constitute "plan assets" of one or more of such Plans within the meaning
of Department of Labor Regulations Section 2510.3-101. Buyer is acting on its
own behalf and not on account of or for the benefit of any Plan. Buyer has no
present intent to transfer the Property to any entity, person or Plan which will
cause a violation of ERISA. Buyer shall not assign its interest under this
Agreement to any entity, person or Plan which will cause a violation of ERISA.
17. ASSIGNMENT. Buyer may not assign or transfer all or any portion of its
rights or obligations under this Agreement to any other individual, entity or
other person without the consent thereto by Seller; provided, however, Buyer may
assign or transfer such rights and obligations to (x) any entity in which Buyer
holds a majority of equity interests, directly or indirectly (any such entity, a
"BUYER AFFILIATE"), without the consent of Seller, or (y) any entity approved by
Seller. No assignment or transfer by Buyer will be permitted if such assignment
or transfer would, in Seller's opinion, cause this transaction to violate any
provision of applicable law, including, without limitation, ERISA. Buyer
contemplates assigning this Agreement on or before the Closing to a special
purpose Delaware limited partnership to be formed by Buyer as a Buyer Affiliate,
and such Delaware limited partnership will acquire the Property pursuant to this
Agreement and enter into the Lease at the Closing. Seller shall not assign or
transfer all or any portion of its rights or obligations under this Agreement.
18. RISK OF LOSS.
(a) In the event of loss or damage to the Property or any portion thereof
which is not "major" (as hereinafter defined), this Agreement will remain in
full force and effect provided Seller performs any necessary repairs or, at
Seller's option, assigns to Buyer all of Seller's right, title and interest to
any claims and proceeds Seller may have with respect to any casualty insurance
policies or condemnation awards relating to the premises in question. Seller
agrees to maintain the insurance currently in place with respect to the Property
during the term of this Agreement. In the event that Seller elects to perform
repairs upon the Property, Seller will use reasonable efforts to complete such
repairs promptly and the date of Closing will be extended a reasonable time (but
not more than thirty (30) days) in order to allow for the completion of such
repairs. If Seller elects to assign a casualty claim to Buyer, the Purchase
Price will be reduced by an amount equal to the deductible amount under Seller's
insurance policy. Upon Closing, full risk of loss with respect to the Property
will pass to Buyer.
(b) In the event of a "major" loss or damage, either Seller or Buyer may
terminate this Agreement by written notice to the other party, in which event
the Xxxxxxx Money will be returned to Buyer. If neither Seller nor Buyer elects
to terminate this Agreement within ten (10) days after Seller sends Buyer
written notice of the occurrence of major loss or damage, then Seller and Buyer
will be deemed to have elected to proceed with Closing, in which event Seller
will, at Seller's option, either (a) perform any necessary repairs, or (b)
assign to Buyer all of Seller's right, title and interest to any claims and
proceeds Seller may have with respect to any casualty insurance policies or
condemnation awards relating to the portion of the Property in question. In the
event that Seller elects to perform repairs upon the Property, Seller will use
reasonable efforts to complete such repairs promptly and the date of Closing
will be extended for a reasonable period of time not to exceed one hundred
twenty (120) days in order to allow for the completion of such repairs. If
Seller elects to assign a casualty claim to Buyer, the Purchase
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Price will be reduced by an amount equal to the deductible amount under Seller's
insurance policy.
(c) For purposes of Sections 18(a) and (b), "major" loss or damage refers
to the following: (i) loss or damage to the Property or any portion thereof such
that the cost of repairing or restoring the portion of the Property in question
to a condition substantially identical to that of the premises prior to the
event of damage would be, in the opinion of an architect selected by Seller and
reasonably approved by Buyer, equal to or greater than $3,000,000.00, (ii) loss
or damage constituting a basis for Seller, in its capacity as tenant under the
Lease, to terminate the Lease (unless such right to terminate is waived or not
timely exercised) or to be entitled to an abatement of rent under the Lease or
(iii) any loss due to a condemnation which permanently and materially impairs
the current use of the Property.
19. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of the State of Texas and
shall bind and inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors, assigns and personal
representatives.
(b) This Agreement or any notice or memorandum hereof shall not be
recorded in any public record. A violation of this prohibition by Buyer shall
constitute a material breach of Buyer, entitling Seller to terminate this
Agreement.
(c) Time is of the essence of this Agreement. Whenever a date specified in
this Agreement falls on a Saturday, Sunday, or federal holiday, the date will be
extended to the next business day.
(d) The headings preceding the text of the sections hereof are inserted
solely for convenience of reference and shall not constitute a part of this
Agreement, nor shall they affect its meaning, construction or effect.
(e) This Agreement may be executed simultaneously in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. To expedite the transaction contemplated herein,
telecopied signatures may be used in place of original signatures on this
Agreement and on any written notice delivered pursuant hereto. Seller and Buyer
intend to be bound by the signatures on the telecopied document, are aware that
the other party will rely on the telecopied signatures, and hereby waive any
defenses to the enforcement of the terms of this Agreement based on the form of
signature.
(f) All Exhibits which are referred to herein and which are attached
hereto or bound separately and initialed by the parties are expressly made and
constitute a part of this Agreement.
(g) Unless otherwise expressly stated in this Agreement, each of the
warranties and representations of Seller and of Buyer made hereunder shall
survive the Closing and delivery of the Deed and other closing documents by
Seller to Buyer, and shall not be deemed to have merged therewith; provided,
however, that any suit or action for breach of any of the
-21-
representations or warranties set forth herein must be commenced within one (1)
year after the Closing or any claim based thereon shall be deemed irrevocably
waived provided that this Section 18(g) shall not be deemed to modify or affect
or limit the survival of any separate representations in the Lease. Unless
expressly made to survive, all obligations and covenants of Seller contained
herein shall be deemed to have been merged into the Deed and shall not survive
the Closing.
(h) To enable Seller to make the conveyance as herein provided, Seller
may, at the time of Closing, use the Purchase Price or any portion thereof to
clear the title of any or all encumbrances or interests affecting the issuance
of the Owner Policy and/or Buyer's lender's title policy, provided that
provision reasonably satisfactory to the Title Company is made for prompt
recording of all instruments required in accordance with conveyancing practice
in the jurisdiction in which the Property is located.
(i) Any provision of this Agreement that shall be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction, and each party hereto shall remain liable to perform its
obligations hereunder except to the extent of such prohibition or
unenforceability. To the extent permitted by applicable law, each party hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
(j) The submission of this Agreement or a summary of some or all of its
provisions for examination or negotiation by Buyer or Seller does not constitute
an offer by Seller or Buyer to enter into an agreement to sell or purchase the
Property, and neither party shall be bound to the other with respect to any such
purchase and sale until a definitive agreement satisfactory to the Buyer and
Seller in their sole discretion is executed and delivered by both Seller and
Buyer.
(k) Subject to the Confidentiality Agreement, this Agreement and the
Exhibits hereto set forth all of the promises, covenants, agreements, conditions
and undertakings between the parties hereto with respect to the subject matter
hereof, and supersede all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as contained herein. This Agreement may not be changed orally but only by
an agreement in writing, duly executed by or on behalf of the party or parties
against whom enforcement of any waiver, change, modification, consent or
discharge is sought.
(l) Seller and Buyer, at the cost and expense of the requesting party
(except as otherwise set forth in this Agreement to the contrary), will cause to
be promptly and duly taken, executed, acknowledged and delivered all such
further acts, documents and assurances as the other reasonably may request from
time to time to carry out more effectively the intent and purposes of this
Agreement.
(m) In the event that litigation is instituted by one party against the
other in connection with this Agreement, the prevailing party shall be entitled
to reimbursement from the other party for all of its reasonable attorneys' fees
and expenses.
-22-
20. REA. Seller and Buyer agree to execute, deliver and record at Closing the
Reciprocal Easement Agreement with Covenants, Conditions and Restrictions in the
form attached hereto as EXHIBIT H (the "REA"), with such immaterial corrections
and conforming changes as may be reasonably required by Seller or Buyer and
reasonably acceptable to the other party.
21. PLATTING. Buyer acknowledges that Seller is in the process of replatting the
Property and Seller's Adjacent Property. A preliminary plat of the Property and
the two adjacent parcels to be retained by Seller ("SELLER'S ADJACENT PROPERTY")
has been or will be submitted to the City of Fort Worth, Texas, copies of which
were delivered to Buyer pursuant to the Confidentiality Agreement and are
attached hereto as EXHIBIT L (the plat of the Property may be referred to herein
as the "PLAT"). Buyer acknowledges that it has reviewed and approved such
preliminary plat of the Property and Seller's Adjacent Property. Buyer agrees to
reasonably cooperate with Seller (including the execution of any necessary
documents) to cause the Property to be fully and finally platted in accordance
with the terms of this Section 21 and the applicable ordinances, rules,
regulations, requirements and procedures of the City of Fort Worth and/or other
Governmental Authorities ("CITY AUTHORITIES"), in the form approved by Seller
and Buyer, in as expeditious a manner as is reasonably practicable, but at no
cost to Buyer. Seller shall pay all application fees and other charges payable
in order to initiate and complete the platting process required by City
Authorities to be paid in connection therewith. If amendments to the Plat are
required by City Authorities, Seller will submit such changes to Buyer for
Buyer's approval, which approval shall not be unreasonably withheld, conditioned
or delayed; provided, however, in no event shall the single lot that includes
the Land and all Improvements be further subdivided without the prior approval
of Buyer, which approval may be granted or withheld in Buyer's sole discretion.
Seller agrees to use its reasonable best efforts to obtain final approval of the
Plat by the City Authorities and record that Plat as soon as possible after the
Effective Date and prior to December 21, 2005. Promptly after final approval of
the Plat by the City Authorities, Seller shall cause the Plat to be recorded in
the Plat Records of Tarrant County, Texas. Seller will keep Buyer fully informed
of the status of such final approval and recording of the Plat and will notify
Buyer promptly upon receipt of such final approval and recording of the Plat. If
the Plat has not been finally approved by the City Authorities and recorded at
least three (3) business days prior to the scheduled Closing Date of December
21, 2005, then the Closing and the Closing Date shall be extended automatically
until the third (3rd) business day after such final approval and recording of
the Plat; provided, however, if such final approval and recording of the Plat
has not occurred by July 1, 2006, then this Agreement shall automatically
terminate as of July 1, 2006, unless otherwise agreed by the parties in their
sole discretion, and the Xxxxxxx Money shall be returned in full to Buyer and
neither party will have any further obligations one to the other except as set
forth in Sections 4(c)(1), 4(c)(3), 12 and 15 and any remedies Buyer may have
under Section 11(b) hereof if Seller has defaulted under this Section 21.
Notwithstanding anything to the Contrary, if the Plat is not finally approved
and recorded on or before January 31, 2006, Buyer may terminate this Agreement
at its sole option by delivering written notice to Seller any time thereafter
and prior to such final approval and recording of the Plat, in which case Buyer
shall be entitled to a full refund of the Xxxxxxx Money and neither party will
have any further obligations one to the other except as set forth in Sections
4(c)(1), 4(c)(3), 12 and 15 and any remedies Buyer may have under Section 11(b)
hereof if Seller has defaulted under this Section 21.
-23-
22. ESCROW AGREEMENT.
(a) The Title Company has agreed to act as escrow agent for the
convenience of the parties without fee or other charges for such services as
escrow agent. The Title Company will not be liable: (i) to any of the parties
for any act or omission to act except for its own gross negligence, bad faith or
willful misconduct; (ii) for any legal effect, insufficiency, or undesirability
of any instrument deposited with or delivered by the Title Company or exchanged
by the parties hereunder, whether or not the Title Company prepared such
instrument (except for the Commitment, the Owner Policy of any mortgage title
policy); (iii) for any loss or impairment of funds that have been deposited in
escrow while those funds are in the course of collection, or while those funds
are on deposit in a financial institution, if such loss or impairment results
from the failure, insolvency or suspension of a financial institution, unless
the Title Company fails to move such funds to another financial institution in
accordance with joint written instructions from Seller and Buyer to the Title
Company, (iv) for the expiration of any time limit or other consequence of
delay, unless a properly executed written instruction, accepted by the Title
Company, has instructed the Title Company to comply with such time limit; or (v)
for the default, error, action or omission of either Seller or Buyer to the
escrow. The Title Company will be entitled to rely, in good faith, on any
document or paper received by it, believed by the Title Company, in good faith,
to be bona fide and genuine.
(b) In the event of any dispute as to the disposition of the Xxxxxxx Money
or any other monies held in escrow, the Title Company will give written notice
to all parties advising same that, in the absence of written instructions signed
by both Purchaser and Seller received within the next ten (10) days, the Title
Company may interplead the Xxxxxxx Money by filing an interpleader action in the
Superior Court of Tarrant County, Texas (to the jurisdiction of which both
parties hereby consent) or may continue to hold the Xxxxxxx Money and take no
action until the Title Company receives such joint written instructions or an
order of a court as to the disposition of same. If the Title Company receives
the aforesaid written instructions, it will continue to hold the Xxxxxxx Money
pursuant to such written instructions. If the Title Company does not receive the
aforesaid written instructions, it may pay into the registry of the court the
Xxxxxxx Money and any other monies held in escrow or may continue to hold the
Xxxxxxx Money and take no action until the Title Company receives such joint
written instructions or an order of a court as to the disposition of same,
whereupon the Title Company will be relieved and released from any further
liability as escrow agent hereunder. The Title Company will not be liable for
the Title Company's compliance with any legal process, subpoena, writs, orders,
judgments and decree of any court, whether issued with or without jurisdiction,
and whether or not subsequently vacated, modified, set aside or reversed.
[SIGNATURE PAGES ATTACHED]
-24-
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
SELLER: RadioShack Corporation, a
Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
[Signature page to Purchase and Sale Agreement]
-25-
BUYER: KAN AM XXXXX
KAPITALANLAGEGESELLSCHAFT
MBH, a German limited liability company,
for the benefit of a German open-end real
estate fund sponsored by Kan Am Xxxxx
Kapitalanlagegesellschaft mbH
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
By: /s/ Olivier Catusse
---------------------------------------
Name: Olivier Catusse
Title: Director
[Signature page to Purchase and Sale Agreement]
-26-
Title Company Joinder
By its execution below, Title Company acknowledges its receipt of a copy of this
Agreement and of the Xxxxxxx Money in the amount of $5,000,000.00, and agrees to
hold and disburse the Xxxxxxx Money in accordance with the terms and conditions
of this Agreement.
REPUBLIC TITLE OF TEXAS, INC.
By: /s/ Xxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxx Xxxxx
------------------------
Title: Escrow Officer
-----------------------
-27-
List of Exhibits
Exhibit A - Legal Description of Property
Exhibit B - Existing Leases
Exhibit C - Certificates of Occupancy
Exhibit D - Form of Lease
Exhibit E - Form of Special Warranty Deed
Exhibit F - Form of Assignment of Warranties and Permits
Exhibit G - Form of Memorandum of Lease
Exhibit H - Form of Reciprocal Easement Agreement
Exhibit I - Title Commitment
Exhibit J - Easement for Public Access
Exhibit K - Seller's Title Affidavit
Exhibit L - Preliminary Plat
Exhibit M - Form of Side Letter
List of Schedules
4(c)(3) - List of Documents
-28-
EXHIBIT A
Description of Property
Being an 18.668 acre tract of land, and being a portion of Xxx 0, Xxxxx 0,
XxxxxXxxxx Addition to the City of Fort Worth according to the plat thereof
recorded in Cabinet A, Slide 8291, Plat Records, Tarrant County, Texas, and also
being all of Xxx 0, Xxxxx 0, XxxxxXxxxx Addition, an Addition to the City of
Fort Worth, Tarrant County, Texas, being shown on the plat attached to this
Agreement as Exhibit L.
EXHIBIT B
Existing Leases
1. Lease Agreement by and between RadioShack Corporation as landlord, and
EECU as tenant, dated effective as of November 15, 2004.
2. Lease Agreement by and between RadioShack Corporation as lessor and
Circle R Media, L.L.C. as lessee, dated effective December 31, 2003.
EXHIBIT C
Certificates of Occupancy
(Follows this Page)
CITY OF FORT WORTH - DEVELOPMENT DEPARTMENT - FIELD OPERATIONS DIVISION
CERTIFICATE OF OCCUPANCY
CO No. T0886422
Legal Description: RADIOSHACK XXXXXXXX XXXXX 0 XXX 0
Xxxxxx Xxxxxxx: 000 XXXXXXXXXX XXX Date: 06/05/2005
Building, Room, Area:
Upon reviewing the City of Fort Worth Zoning records on the date of application,
it was determined the above land is zoned H. This land can be used as a OFFICE
BUILDING USE
Permit No. PB03-09842
I have inspected this (building) (room) (area) and find that as defined by the
City of Fort Worth Building Code and, when used by such Occupancy-
Classification, will comply with all pertinent laws and ordinances. (Annotate
high-piled combustible storage as-H.) The property will have the following
classification:
Group Division Occupany Load Type Construction # Units Comment
----- -------- ------------- ----------------- ------- -------
B 2145 I-B 0 bldg A.
0
0
Occupant: RADIO SHACK CORP
Owner: RADIO SHACK CORP :300 RADIOSHACK CIR XXXX XXXXX XX 00000
Building Official: XX XXXXXX ,CBO Code Compliance Approval:
Issued By: XX XXXXX//TS
The City of Fort Worth cannot and does not in any way represent, advise, or
guarantee that your compliance with the building code will prevent liability for
violations of the Americans with Disabilities act.
The Building Code requires that this certificate be posted in a conspicuous
place on the premises.
CITY OF FORT WORTH - DEVELOPMENT DEPARTMENT - FIELD OPERATIONS DIVISION
CERTIFICATE OF OCCUPANCY
CO No. T0886422
Legal Description: RADIOSHACK XXXXXXXX XXXXX 0 XXX 0
Xxxxxx Xxxxxxx: 000 XXXXXXXXXX XXX Date: 06/05/2005
Building, Room, Area:
Upon reviewing the City of Fort Worth Zoning records on the date of application,
it was determined the above land is zoned H. This land can be used as a OFFICE
BUILDING USE
Permit No. PB03-09849
I have inspected this (building) (room) (area) and find that as defined by the
City of Fort Worth Building Code and, when used by such Occupancy
Classification, will comply with all pertinent laws and ordinances. (Annotate
high-piled combustible storage as -H.) The property will have the following
classification:
Group Division Occupany Load Type Construction # Units Comment
----- -------- ------------- ----------------- ------- -------
B 0000 X-X 0 XXXX X
0
0
Occupant: RADIO SHACK CORP
Owner: RADIO SHACK CORP : 000 XXXXXXXXXX XXX XXXX XXXXX XX 00000
Building Official: XX XXXXXX ,CBO Code Compliance Approval:
Issued By: XX XXXXX/TS
The City of Fort Worth cannot and does not in any way represent, advise, or
guarantee that your compliance with the building code will prevent liability for
violations of the Americans with Disabilities act.
The Building Code requires that this certificate be posted in a conspicuous
place on the premises.
CITY OF FORT WORTH - DEVELOPMENT DEPARTMENT - FIELD OPERATIONS DIVISION
CERTIFICATE OF OCCUPANCY
CO No. T0886422
Legal Description: RADIOSHACK XXXXXXXX XXXXX 0 XXX 0
Xxxxxx Xxxxxxx: 000 XXXXXXXXXX XXX Date: 06/05/2005
Building, Room, Area:
Upon reviewing the City of Fort Worth Zoning records on the date of application,
it was determined the above land is zoned H. This land can be used as a OFFICE
BUILDING USE
Permit No. PB03-09857
I have inspected this (building) (room) (area) and find that as defined by the
City of Fort Worth Building Code and, when used by such Occupancy
Classification, will comply with all pertinent laws and ordinances. (Annotate
high-piled combustible storage as -H.) The property will have the following
classification:
Group Division Occupany Load Type Construction # Units Comment
----- -------- ------------- ----------------- ------- -------
B 1752 l-B 0 Bldg C
0
0
Occupant: RADIO SHACK CORP
Owner: RADIO SHACK CORP :300 RADIOSHACK CIR XXXX XXXXX XX 00000
Building Official: XX XXXXXX ,CBO Code Compliance Approval:
Issued By: XX XXXXX//TS
The City of Fort Worth cannot and does not in any way represent, advise, or
guarantee that your compliance with the building code will prevent liability for
violations of the Americans with Disabilities act.
The Building Code requires that this certificate be posted in a conspicuous
place on the premises.
CITY OF FORT WORTH - DEVELOPMENT DEPARTMENT - FIELD OPERATIONS DIVISION
CERTIFICATE OF OCCUPANCY
CO No. T0886422
Legal Description: RADIOSHACK XXXXXXXX XXXXX 0 XXX 0
Xxxxxx Xxxxxxx: 000 XXXXXXXXXX XXX Date: 06/05/2005
Building, Room, Area:
Upon reviewing the City of Fort Worth Zoning records on the date of application,
it was determined the above land is zoned H. This land can be used as a OFFICE
BUILDING USE
Permit No. PB03-09864
I have inspected this (building) (room) (area) and find that as defined by the
City of Fort Worth Building Code and, when used by such Occupancy
Classification, will comply with all pertinent laws and ordinances, (Annotate
high-piled combustible storage as -H.) The property will have the following
classification:
Group Division Occupany Load Type Construction # Units Comment
----- -------- ------------- ----------------- ------- -------
B 3093 I-B 0 BLDG D
0
0
Occupant: RADIO SHACK CORP
Owner: RADIO SHACK CORP :300 RADIOSHACK CIR XXXX XXXXX XX 00000
Building Official: XX XXXXXX ,CBO Code Compliance Approval:
Issued By: XX XXXXX//TS
The City of Fort Worth cannot and does not in any way represent, advise, or
guarantee that your compliance with the building code will prevent liability for
violations of the Americans with Disabilities act.
The Building Code requires that this certificate be posted in a conspicuous
place on the premises.
CITY OF FORT WORTH - DEVELOPMENT DEPARTMENT - FIELD OPERATIONS DIVISION
CERTIFICATE OF OCCUPANCY
CO No. T0886422
Legal Description: RADIOSHACK XXXXXXXX XXXXX 0 XXX 0
Xxxxxx Xxxxxxx: 000 X XXXXXXX XX Date: 05/19/2005
Building, Room, Area:
Upon reviewing the City of Fort Worth Zoning records on the date of application,
it was determined the above land is zoned H. This land can be used as a OFFICE
BUILDING USE
Permit No. PB05-02860
I have inspected this (building) (room) (area) and find that as defined by the
City of Fort Worth Building Code and, when used by such Occupancy
Classification, will comply with all pertinent laws and ordinances. (Annotate
high-piled combustible storage as -H.) The property will have the following
classification:
Group Division Occupany Load Type Construction # Units Comment
----- -------- ------------- ----------------- ------- --------------------
B 24 IIB 0 NO SEPARATED "M" USE
Occupant: _STARBUCKS
Owner: RADIO SHACK CORP :300 RADIOSHACK CIR XXXX XXXXX XX 00000
Building Official: XX XXXXXX ,CBO Code Compliance Approval:
Issued By: XX XXXXX//TS
The City of Fort Worth cannot and does not in any way represent, advise, or
guarantee that your compliance with the building code will prevent liability for
violations of the Americans with Disabilities act.
The Building Code requires that this certificate be posted in a conspicuous
place on the premises.
CITY OF FORT WORTH - DEVELOPMENT DEPARTMENT - FIELD OPERATIONS DIVISION
CERTIFICATE OF OCCUPANCY
CO No. T0265484
Legal Description: LAND 500 ADDITION, XXX 00, 00 & 00
Xxxxxx Xxxxxxx: 000 X XXXXXXX XX Date: 05/19/2005
Building, Room, Area:
Upon reviewing the City of Fort Worth Zoning records on the date of application,
it was determined the above land is zoned H. This land can be used as a RETAIL
STORE
BUILDING USE
Permit No. PB03-01697
I have inspected this (building) (room) (area) and find that as defined by the
City of Fort Worth Building Code and, when used by such Occupancy
Classification, will comply with all pertinent laws and ordinances. (Annotate
high-piled combustible storage as -H.) The property will have the following
classification:
Group Division Occupany Load Type Construction # Units Comment
----- -------- ------------- ----------------- ------- -------
Ml 104 IB 1
A-2 100 IB
A-3 84 IB
Occupant: RADIO SHACK CORP
Owner: RADIO SHACK CORP :FORT XXXXX XX 00000
Building Official: XX XXXXXX ,CBO Code Compliance Approval:
Issued By: XX XXXXX//TS
The City of Fort Worth cannot and does not in any way represent, advise, or
guarantee that your compliance with the building code will prevent liability for
violations of the Americans with Disabilities act.
The Building Code requires that this certificate be posted in a conspicuous
place on the premises.
CITY OF FORT WORTH - DEVELOPMENT DEPARTMENT - FIELD OPERATIONS DIVISION
CERTIFICATE OF OCCUPANCY
CO No. T0930293
Legal Description: FIELDS XXXXXXXX XXXXXXXX, XXX XXXX, XXXXX X
Xxxxxx Address: 000 X XXXXXXXXX XX Date: 06/05/2005
Building, Room, Area:
Upon reviewing the City of Fort Worth Zoning records on the date of application,
it was determined the above land is zoned H. This land can be used as a PARKING
GARAGE-OPEN
BUILDING USE
Permit No. PB03-01700
I have inspected this (building) (room) (area) and find that as defined by the
City of Fort Worth Building Code and, when used by such Occupancy
Classification, will comply with all pertinent laws and ordinances. (Annotate
high-piled combustible storage as -H.) The property will have the following
classification:
Group Division Occupany Load Type Construction # Units Comment
----- -------- ------------- ----------------- ------- --------------
S-2 3170 IB 1 parking garage
F-1 57 IB central plant
S-1 110 IB storage
Occupant: RADIO SHACK CORP
Owner: RADIO SHACK CORP :FORT XXXXX XX 00000
Building Official: XX XXXXXX ,CBO Code Compliance Approval:
Issued By: XX XXXXX//TS
The City of Fort Worth cannot and does not in any way represent, advise, or
guarantee that your compliance with the building code will prevent liability for
violations of the Americans with Disabilities act.
The Building Code requires that this certificate be posted in a conspicuous
place on the premises.
EXHIBIT D
Form of Lease
(Follows this Page)
LEASE
BETWEEN
---------------------
AS LANDLORD,
AND
RADIOSHACK CORPORATION,
AS TENANT
DATED AS OF ______________, 2005
PAGE
1. Demise of Premises.......................................................................................1
2. Title and Condition......................................................................................2
3. Use of Premises..........................................................................................2
4. Term.....................................................................................................2
5. Rent.....................................................................................................3
6. Net Lease; Non-Terminability.............................................................................3
7. Taxes and Assessments; Compliance with Law; Environmental Matters........................................5
8. Indemnification..........................................................................................8
9. Liens....................................................................................................9
10. Maintenance and Repair...................................................................................9
11. Alterations.............................................................................................11
12. Insurance...............................................................................................13
13. Casualty................................................................................................16
14. Condemnation............................................................................................17
15. Termination of Lease Following Major Casualty or Condemnation...........................................18
16. Assignment and Subletting...............................................................................19
17. Financial Statements....................................................................................20
18. Permitted Contests......................................................................................22
19. Default Provisions......................................................................................23
20. Additional Rights of Landlord...........................................................................26
21. Notices, Demands and Other Instruments..................................................................27
22. Transfer by Landlord....................................................................................28
23. Mortgaging by Landlord..................................................................................28
24. Estoppel Certificates...................................................................................30
25. No Merger...............................................................................................30
26. Surrender...............................................................................................30
27. Severability............................................................................................31
28. Savings Clause..........................................................................................31
29. Binding Effect..........................................................................................31
30. Memorandum of Lease.....................................................................................31
31. Table of Contents; Headings.............................................................................31
-i-
32. Governing Law...........................................................................................31
33. Certain Definitions.....................................................................................32
34. Assignment of Intangibles...............................................................................33
35. Representation and Warranties...........................................................................32
36. Exhibits................................................................................................34
37. Quiet Enjoyment.........................................................................................34
38. Easements...............................................................................................34
39. Right of First Offer....................................................................................35
40. Naming and Signing Rights...............................................................................38
41. Brokers.................................................................................................38
42. Force Majeure...........................................................................................38
43. Exculpatory Clause......................................................................................38
44. Letter of Credit ...................................................................................... 38
45. Waiver of Landlord Liens................................................................................41
EXHIBITS
Exhibit 1.1 Legal Description
Exhibit 5 Basic Rent
Exhibit 9 Permitted Exceptions
Exhibit 23 Subordination, Non-Disturbance and Attornment Agreement
Exhibit 00-0 Xxxxxxxx Certificate
Exhibit 00-0 Xxxxxxxx Certificate
Exhibit 30 Memorandum of Lease
Exhibit 35 Tenant Representations and Warranties
-ii-
LEASE
This LEASE, dated as of _______________, 2005, between __________
___________, a(n) ____________________ (herein, as further defined in
Subparagraph 33(d), called "LANDLORD"), having an address at _____________, and
RADIOSHACK CORPORATION, a Delaware corporation (herein called "TENANT"), having
an address at 000 XxxxxXxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000-0000.
NOW THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, and intending to be legally bound, the parties agree as
follows:
1. DEMISE OF PREMISES.
In consideration of the rents and covenants herein stipulated to be
paid and performed, Landlord hereby demises and lets to Tenant, and Tenant
hereby lets from Landlord, for the Term herein described, the premises (herein
called the "PREMISES") consisting of:
1.1 That parcel of land containing approximately 18.688 acres, with
the corresponding legal description and address listed on EXHIBIT 1.1 attached
hereto and made a part hereof, together with all of Landlord's right, title and
interest, if any, in and to all easements, rights of way, appurtenances, strips
and gores of land, water rights and other interests, rights and benefits
thereunto belonging, and to all public or xxxxxxx xxxxxxx, xxxxx, xxxxxxx,
alleys, or passageways, open or proposed, on or abutting the parcel of land, and
to any award made to or to be made in lieu thereof, and in and to any award for
damage to the parcel of land or any part thereof by reason of a change of grade
in any street, alley, road or avenue, as aforesaid (collectively, the "LAND").
For purposes of this Lease, the Land shall not include any mineral rights or
interest in, to or underlying the Land.
1.2 All buildings on and other improvements now or hereafter located
on, over or to the Land, including a five building office campus containing
approximately 875,694 square feet (the "BUILDINGS"); a 2,362 space structured
garage and all parking areas on the Land; all landscaped and hardscaped areas
and features; and Landlord's right, title and interest in all systems, building
fixtures, amenities, facilities, machinery and equipment used in the operation
of the facility and other improvements, conduits, ducts, hot water heaters, oil
burners, domestic water systems, and installations including those used to
provide fire protection, heat, exhaust, ventilation, air conditioning,
electrical power, security, light, plumbing, refrigeration, gas, sewer and water
thereto, all elevators, escalators, canopies, and the physical structure of all
signs (excluding any right to use any trade names, trademarks or service marks
of Tenant depicted on the signs), which are used for the operation of the
Buildings (collectively, the "IMPROVEMENTS"); but, excluding Tenant's trade
fixtures, office equipment (including audio/video meeting and conferencing
equipment), furniture, signs, decorations, furnishings, interior and exterior
artwork, except for items of personal property used in the operation of the
Improvements (all such personal property and trade fixtures, together with
Severable Additions (as defined in Subparagraph 11(d)), being referred to as
"EXCLUDED FIXTURES"), which are and shall remain the sole property of Tenant.
2. TITLE AND CONDITION.
(a) The Premises are demised and let subject to (i) the rights of
any parties in possession and the existing state of the title as of the
commencement of the Term of this Lease, including the Permitted Exceptions
(as defined in EXHIBIT 9), (ii) any state of facts which an accurate
survey or physical inspection thereof might show, (iii) all zoning
regulations, restrictions, rules and ordinances, building restrictions and
other laws and regulations now in effect or hereafter adopted by any
Governmental Authority (as defined in Subparagraph 33(b)) having
jurisdiction, and (iv) the condition of the Buildings, and other
Improvements located thereon, as of the commencement of the Term of this
Lease, without representation or warranty by Landlord. Tenant represents
that it is in possession of the Premises and is fully familiar with the
Premises in all respects, having owned the Premises immediately prior to
the commencement of the Term of this Lease and having caused the
construction of the Improvements thereon. Tenant further represents that
it has examined the title to, zoning of and other restrictions applicable
to, and the condition of, the Premises and has found the same to be
satisfactory to it. Tenant has unconditionally accepted the Premises in
all respects.
(b) During the Term, Tenant shall retain all economic development
incentives including, but not limited to, economic development grants and
property tax abatements and reimbursements previously or at any time
granted to Tenant by the City of Fort Worth, the Tax Increment
Reinvestment Zone Number Six, City of Fort Worth, Texas, or any other
Governmental Authority.
3. USE OF PREMISES.
Subject to applicable Legal Requirements (as defined in Subparagraph
33(f)) and Subparagraph 7(e)(iv), Tenant may use the Premises for general office
use, including executive, managerial, administrative and sales offices, media
and broadcast production, cafeteria, training and testing facilities, retail
sales activities, employee fitness center, employee related services, parking,
and uses ancillary thereto, and otherwise in conformity with this Lease, but for
no other purposes.
4. TERM.
Subject to the terms and conditions hereof, Tenant shall have and
hold the Premises for an interim term (herein called the "INTERIM TERM")
commencing on the date hereof and continuing until the last day of the calendar
month in which the date hereof occurs (provided that if the Lease commences on
the first day of a calendar month there shall be no Interim Term) and a primary
term (herein called the "PRIMARY TERM") commencing on the first day of the first
calendar month following the date hereof (except if this Lease commences on the
first day of a calendar month, the Primary Term shall commence on said first
day), and continuing for twenty (20) years. Tenant shall have the option to
extend this Lease for four (4) consecutive terms of five (5) years each (herein
individually called an "EXTENDED TERM" and, together with the Interim Term, if
any, and the Primary Term, called the "TERM"), unless this Lease shall expire or
be sooner terminated pursuant to the terms hereof. In the event Tenant elects to
extend the Term for an Extended Term, Tenant shall give a written notice to
Landlord (an "EXTENSION NOTICE") no
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later than twelve (12) months prior to the then-scheduled expiration of the
Term. Upon the giving of an Extension Notice, the Term shall be automatically
extended for such Extended Term on the terms and conditions provided in this
Lease, except that Tenant shall have no further option to extend the Term beyond
said four (4) additional periods of five (5) years each. Upon the request of
Landlord or Tenant, the parties hereto will execute and exchange an instrument
in recordable form setting forth any extension of the Term in accordance with
this Paragraph 4. If (i) an Event of Default shall exist as of the giving of the
Extension Notice, or (ii) Tenant does not timely give an Extension Notice in
accordance with the provisions of this Paragraph 4, then, unless Landlord and
Tenant otherwise agree in writing, Tenant shall thereafter have no right to
extend the Term for the subject or any succeeding Extended Term.
5. RENT.
(a) Tenant covenants to pay to Landlord, as rent for the Premises
during the Interim Term, the Primary Term and each Extended Term of this
Lease (if Tenant extends the Term in accordance with Paragraph 4) the
amounts set forth on EXHIBIT 5 attached hereto (herein called the "Basic
Rent") in monthly installments, in advance, on the first day of each
calendar month (herein called the "BASIC RENT PAYMENT DATES") by wire or
other electronic transfer of immediately available funds to the Landlord
at the address set forth above or to such other person or such other place
or account as Landlord from time to time may designate to Tenant in
writing; provided, Landlord may designate to Tenant in writing that all
but not less than all of the monthly Basic Rent be paid directly to a
Mortgagee (as defined in Subparagraph 23(a)) or an institutional payment
agent.
(b) Tenant covenants that all other amounts, liabilities and
obligations which Tenant assumes or agrees to pay or discharge pursuant to
this Lease together with every fine, penalty, interest and cost which may
be added for nonpayment or late payment thereof, shall constitute
additional rent hereunder (herein called "ADDITIONAL RENT"). In the event
of any failure by Tenant to pay or discharge any Additional Rent, Landlord
shall have all rights, powers and remedies provided herein or by law in
the case of nonpayment of Basic Rent. Tenant further covenants to pay to
Landlord on demand interest on all Basic Rent and Additional Rent due to
Landlord from the date due until such amount is paid in full at the per
annum rate of interest (the "DEFAULT RATE") equal to the annual "prime
rate" identified in the "Money Rates" column in the Wall Street Journal
(the "PRIME RATE") plus four percent (4%), but in no event shall the
Default Rate exceed the maximum rate permitted by law. If the Wall Street
Journal is no longer published or the Wall Street Journal discontinues
publication of the "prime rate," then Landlord shall designate a
reasonably comparable source to identify the Prime Rate.
6. NET LEASE; NON-TERMINABILITY.
(a) This is an absolutely net lease to Landlord. It is the intent of
the parties hereto that the Basic Rent payable under this Lease shall be
an absolutely net return to Landlord and that Tenant shall pay all costs
and expenses relating to the Premises and the business carried on therein,
unless otherwise expressly provided to the contrary in this Lease. Any
amount or obligation relating to the Premises which is not expressly
declared to be that of Landlord shall be deemed to be an obligation of
Tenant to be performed by
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Tenant at Tenant's expense. Basic Rent and Additional Rent shall be paid
by Tenant without notice or demand (except as expressly provided herein),
setoff, counterclaim, abatement, suspension, deduction or defense;
provided, however, that overpayments of Basic Rent or Additional Rent, as
reasonably substantiated in writing by Tenant, shall be subject to a right
of offset against subsequent payments of Basic Rent or Additional Rent.
(b) This Lease shall not terminate, nor shall Tenant have any right
to terminate this Lease (except as otherwise expressly provided to the
contrary in Paragraph 15), nor shall Tenant be entitled to any abatement
of rent, nor shall the obligations of Tenant under this Lease be affected,
by reason of any of the following: (i) the condition of the Premises at
the commencement of the Term; (ii) any damage to or destruction of all or
any part of the Premises from whatever cause regardless of whether the
Improvements may be rebuilt following such damage or destruction to be the
same as they were before such event because of applicable Legal
Requirements or otherwise; (iii) the taking of the Premises or any portion
thereof by condemnation, eminent domain, requisition or otherwise; (iv)
the prohibition, limitation or restriction of Tenant's use or occupancy of
all or any part of the Premises, or any interference with such use or
occupancy; (v) any eviction by paramount title or otherwise; (vi) Tenant's
acquisition or ownership of all or any part of the Premises, except as
expressly provided herein; (vii) any default on the part of Landlord under
this Lease or under any other agreement to which Landlord and Tenant may
be parties; or (viii) any other cause whether similar or dissimilar to the
foregoing, any present or future law to the contrary notwithstanding. It
is the intention of the parties hereto that the obligations of Tenant
hereunder shall be separate and independent covenants and agreements, that
the Basic Rent and the Additional Rent shall continue to be payable in all
events, and that the obligations of Tenant hereunder shall continue
unaffected in all events, unless the requirement to pay or perform the
same shall have been terminated pursuant to an express provision of this
Lease. Notwithstanding anything to the contrary contained above in this
Paragraph 6, Tenant retains a separate and independent right to xxx
Landlord or seek equitable remedies against Landlord with respect to any
claim Tenant may have against Landlord in any way relating to this Lease
or the Premises; provided, however, any judgment, order or injunctive or
equitable relief granted in favor of Tenant shall not xxxxx, be set off
against, reduce or otherwise affect Tenant's obligation to pay Basic Rent
or Additional Rent or terminate this Lease or reduce or otherwise affect
any of Tenant's obligations hereunder.
(c) Tenant agrees that it will remain obligated under this Lease in
accordance with its terms, and that it will not take any action to
terminate, rescind or avoid this Lease, notwithstanding (i) the
bankruptcy, insolvency, reorganization, composition, readjustment,
liquidation, dissolution, or winding-up or other proceeding affecting
Landlord or its successors in interest, or (ii) any action with respect to
this Lease which may be taken by any trustee or receiver of Landlord or
its successors in interest or by any court in any such proceeding, so long
as Tenant is undisturbed in its right to occupy and use the Premises.
(d) Tenant waives, to the extent permitted by law, all rights which
may now or hereafter be conferred by law (i) to quit, terminate or
surrender this Lease or the Premises
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or any part thereof, or (ii) to any abatement, suspension, deferment or
reduction of the Basic Rent or Additional Rent.
7. TAXES AND ASSESSMENTS; COMPLIANCE WITH LAW; ENVIRONMENTAL MATTERS.
(a) Subject to Paragraph 18 below, Tenant shall pay or discharge all
Impositions (as defined in Subparagraph 33(c)) when due. Notwithstanding
the foregoing provision of this Subparagraph 7(a), Tenant shall not be
required to pay any franchise, corporate, estate, inheritance, succession,
net income or excess profits taxes of Landlord hereunder (other than (i)
transfer and documentary taxes, if any, recording fees, or similar charges
payable in connection with a conveyance to Tenant pursuant to this Lease,
the execution of this Lease or the recording of any memorandum or notice
of this Lease, and (ii) any such tax, assessment, charge or levy imposed
or levied upon or assessed against Landlord in substitution for or in
place of an Imposition). Tenant agrees to furnish to Landlord, within
thirty (30) days after written request therefor, evidence of the payment
of all Impositions. Subject to Paragraph 18 below, Tenant shall pay all
Taxes (as defined in Subparagraph 33(c)) and charges for utilities
consumed on the Premises which become due during the Term (even if such
Taxes and charges accrued or pertain to a period prior to the commencement
of the Term) and also all Taxes which are allocable to the period prior to
the expiration of the Term and charges which relate to utilities consumed
during the Term even if payable after the expiration or earlier
termination of the Term. Taxes shall be prorated at the end of the Term,
and Tenant shall pay its estimated share of unpaid Taxes which will accrue
through the end of the Term with the last installment of Basic Rent due
hereunder (such share to be reprorated upon issuance of the actual xxxx
therefor and adjustment payments made by the parties as necessary to
adjust payments made pursuant to the reproration). In the event that any
special assessment levied or assessed against the Premises during the Term
hereof may be legally paid in installments, Tenant shall have the option
to pay such special assessment in installments. In such event, Tenant
shall be liable only for those installments of the special assessment, and
any accrued interest and penalties relating thereto, which become due and
payable prior to the expiration of the Term.
(b) Tenant shall pay all Taxes prior to the past due date thereof
and give evidence of payment of each such item to Landlord no later than
twenty (20) Business Days following the past due date thereof.
(c) Landlord agrees, to the extent reasonably necessary for Tenant
to continue to prosecute any tax abatement proceedings or to obtain any
economic development grants and/or tax incentives granted to Tenant by any
Governmental Authority, to reasonably cooperate with Tenant, at no cost to
Landlord, and also agrees to promptly endorse or pay over to Tenant any
such abatement amounts, grants and/or incentives for such years received
by Landlord.
(d) Tenant shall, at its expense, make all payments required under
and otherwise comply with, cause the Premises to comply with, and cause
the use of the Premises to comply with, all Legal Requirements, including
those which require the making of any structural, unforeseen or
extraordinary changes, whether or not any of the
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same involve a change of policy on the part of the body enacting the same,
including but not limited to, the Americans With Disabilities Act of 1990
(42 U.S.C. Section 12101 et seq.). Tenant shall, at its expense, comply
with all changes required in order to obtain and maintain the Required
Insurance (as defined in Paragraph 12), and comply with the provisions of
all contracts, agreements, instruments and restrictions existing at the
commencement of this Lease and included in the Permitted Exceptions or
thereafter created pursuant to the express provisions of this Lease. Each
party shall provide the other party(ies) with notice as soon as reasonably
possible of any written complaints from any Governmental Authority
pertaining to any alleged violation of any Legal Requirements and/or the
commencement of any proceedings or investigation (of which the notifying
party has knowledge) under any Legal Requirements affecting or pertaining
to the Premises.
(e) Tenant shall:
(i) Not cause, suffer or permit any Hazardous Material (as
defined below) to exist on or be discharged from or be released at
the Premises in violation of Environmental Laws (as defined below)
(whether originating thereon or brought onto the Premises by third
parties), and shall promptly: (A) remove, remediate and dispose of
any such Hazardous Material in compliance with all Environmental
Laws, (B) pay any claim against Tenant, any Indemnified Party (as
defined below) or the Premises arising therefrom, (C) remove any
charge or lien upon any of the Premises relating thereto, (D) prior
to the expiration or earlier termination of this Lease, remove and
dispose of all Hazardous Material which then exists on the Premises,
in compliance with all Environmental Laws, and (E) without
limitation of the foregoing comply, at its sole cost and expense,
during the Term in all respects with all Environmental Laws
applicable to the Premises in regard to all Hazardous Materials.
(ii) Notify Landlord in writing of any Hazardous Material
(other than Hazardous Material stored or transported to or from the
Premises in the ordinary course of Tenant's or Tenant's sublessee's
business and in compliance with all Environmental Laws) that exists
on or is discharged from or onto or released at the Premises
(whether originating thereon, placed thereon by third parties or
migrating to the Premises from other property) within twenty (20)
days after Tenant first has actual knowledge of such existence or
discharge.
(iii) DEFEND (WITH COUNSEL SELECTED BY TENANT AND REASONABLY
ACCEPTABLE TO LANDLORD), INDEMNIFY AND HOLD HARMLESS LANDLORD, ANY
MORTGAGEE AND THEIR RESPECTIVE OFFICERS, DIRECTORS, TRUSTEES,
MEMBERS, PARTNERS, SHAREHOLDERS, BENEFICIARIES, EMPLOYEES AND AGENTS
(HEREIN COLLECTIVELY CALLED "INDEMNIFIED PARTIES" AND INDIVIDUALLY
AN "INDEMNIFIED PARTY") FROM AND AGAINST ANY AND ALL CLAIMS,
EXPENSES, LIABILITY, LOSS OR DAMAGE (INCLUDING ALL REASONABLE
ATTORNEYS' FEES AND EXPENSES) RESULTING FROM THE FAILURE OF TENANT
OR THE PREMISES TO COMPLY DURING THE TERM WITH ENVIRONMENTAL LAWS.
TENANT SHALL GIVE LANDLORD NOTICE AS SOON AS REASONABLY POSSIBLE OF
(A) ANY PROCEEDING OR INQUIRY OF WHICH TENANT
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BECOMES AWARE DURING THE TERM BY ANY GOVERNMENTAL AUTHORITY WITH
RESPECT TO THE PRESENCE OF ANY HAZARDOUS MATERIAL ON, UNDER, FROM OR
ABOUT THE PREMISES, (B) ALL CLAIMS MADE BY ANY THIRD PARTY AGAINST
TENANT OR THE PREMISES RELATING TO ANY LOSS OR INJURY RESULTING FROM
ANY HAZARDOUS MATERIAL OF WHICH TENANT BECOMES AWARE, AND (C)
TENANT'S DISCOVERY OF ANY OCCURRENCE OR CONDITION ON ANY REAL
PROPERTY ADJOINING OR IN THE VICINITY OF THE PREMISES THAT TENANT
REASONABLY DETERMINES IS LIKELY TO CAUSE THE PREMISES TO BE SUBJECT
TO ANY INVESTIGATION OR CLEANUP PURSUANT TO ANY ENVIRONMENTAL LAW.
TENANT SHALL PERMIT LANDLORD TO JOIN AND PARTICIPATE IN, AS A PARTY
IF IT SO ELECTS, ANY LEGAL PROCEEDINGS OR ACTION INITIATED WITH
RESPECT TO THE PREMISES IN CONNECTION WITH ANY ENVIRONMENTAL LAW OR
HAZARDOUS MATERIAL, AND TENANT SHALL PAY ALL REASONABLE ATTORNEYS'
FEES AND DISBURSEMENTS INCURRED BY LANDLORD IN CONNECTION THEREWITH
TO THE EXTENT SUCH PROCEEDINGS OR ACTION RELATES TO TENANT'S
OBLIGATIONS UNDER THIS LEASE.
(iv) Not change the use of the Premises or permit the use of
the Premises to be changed to any purpose other than the use on the
date hereof, or change the Tenant's business operations conducted at
the Premises from that conducted on the date hereof, if any such
change of use or operations would (A) increase the risk of any
Hazardous Material being released or discharged at or from the
Premises in violation of any Environmental Laws, (B) result in
Tenant or Landlord being obligated to perform any remediation of any
Hazardous Material, or (C) result in the rescinding or adverse
modification of any waiver or stand-still agreement as to
environmental compliance matters granted by any Governmental
Authority.
For purposes of this Lease, the following terms shall have the following
meanings: (1) "HAZARDOUS MATERIAL" means any hazardous or toxic material,
substance or waste which is defined by those or similar terms and is
regulated as such under any Environmental Laws, except for cleaning
solvents, paints, construction materials, fuel supplies, and similar
materials used in the ordinary course of business and in compliance with
all applicable laws (including Environmental Laws) with respect thereto;
and (2) "ENVIRONMENTAL LAWS" means any statute, law, ordinance, rule or
regulation of any local, county, state or federal authority having
jurisdiction over the Premises or any portion thereof or its use, which
pertains to environmental, health or safety matters and/or the regulation
of any Hazardous Materials, including but not limited to: (a) the Federal
Water Pollution Control Act (33 U.S.C. Section 1317 et seq.) as amended;
(b) the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.) as amended; (c) the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) as
amended; (d) the Toxic Substances Control Act (15 U.S.C. Section 2601 et
seq.), as amended; and (e) the Clean Air Act (42 U.S.C. Section 7401 et
seq.), as amended. The Tenant's obligations and liabilities under this
Subparagraph 7(e) shall survive the expiration or earlier termination of
this Lease with respect to any obligation accruing prior to the end of the
Term (or if earlier, the date on which Landlord actually retakes
possession of the Premises under clause (ii) of Subparagraph 19(b)) and
any Hazardous Material which exists or is discharged from or onto or
released at the Premises prior to the end of the Term (or if earlier, the
date on which Landlord actually retakes possession of the Premises under
clause (ii) of Subparagraph 19(b)) in violation of any Environmental Law.
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(f) Upon Landlord's request, at any time an Event of Default has
occurred and is continuing and at such other times as Landlord has
reasonable grounds to believe that (A) Hazardous Material has been
released, stored or disposed on or around the Premises (other than as
permitted under this Lease or by applicable Environmental Laws) or (B) the
Premises may be in violation of any Environmental Laws, Tenant shall, at
Tenant's sole cost, deliver to Landlord a current inspection or audit of
the Premises prepared by a hydrogeologist or environmental engineer or
other appropriate consultant reasonably approved by Landlord indicating
the presence or absence of Hazardous Material at the Premises, including
the presence or absence of toxic mold, friable asbestos or substances
containing asbestos at the Premises. If Tenant fails to provide any
required inspection or audit within sixty (60) days after any such
request, Landlord may order same, in which event (1) Tenant shall
reimburse Landlord upon demand for the cost thereof, and (2) Landlord, any
first Mortgagee and such hydrogeologists, engineers and/or consultants
shall have the right to come onto the Premises with reasonable prior
notice to Tenant to perform such inspection and/or audit in which case
Tenant shall be provided with a complete copy of all such inspections
and/or audits within five (5) Business Days of completion thereof. Tenant
shall promptly deliver to Landlord copies of all monitoring results and
environmental inspections and reports which Tenant performs or receives
with respect to Hazardous Material at the Premises. The obligations of
Tenant under this Subparagraph 7(f) shall survive the expiration or
earlier termination of this Lease.
8. INDEMNIFICATION.
(a) TENANT AGREES TO PAY, AND TO PROTECT, DEFEND (WITH COUNSEL
REASONABLY ACCEPTABLE TO LANDLORD), INDEMNIFY AND HOLD HARMLESS LANDLORD
AND THE OTHER INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL
LIABILITIES, LOSSES, DAMAGES, COSTS, EXPENSES (INCLUDING ALL REASONABLE
ATTORNEYS' FEES AND EXPENSES), CAUSES OF ACTION, SUITS, CLAIMS, DEMANDS OR
JUDGMENTS OF ANY NATURE (HEREIN COLLECTIVELY CALLED "DAMAGES") WHATSOEVER
ARISING FROM (i) ANY USE, CONDITION OR EVENT OCCURRING ON THE PREMISES
PRIOR TO OR DURING THE TERM (INCLUDING WITHOUT LIMITATION, THE
CONSTRUCTION OR EXISTENCE OF ANY ALTERATIONS), (II) ANY INJURY TO, OR THE
DEATH OF, ANY PERSON OR DAMAGE TO PROPERTY ON THE PREMISES PRIOR TO OR
DURING THE TERM, (III) ANY VIOLATION BY TENANT OF ANY AGREEMENT OR
CONDITION OF THIS LEASE, OR ANY CONTRACT OR AGREEMENT TO WHICH TENANT IS A
PARTY OR WHICH PERTAINS TO THE PREMISES OR ANY PART THEREOF OR THE
OWNERSHIP, OCCUPANCY OR USE THEREOF, AND (IV) ANY VIOLATION BY TENANT OF
ANY LEGAL REQUIREMENT; PROVIDED, HOWEVER, THE FOREGOING INDEMNITY SHALL
NOT APPLY AS TO AN INDEMNIFIED PARTY WITH RESPECT TO CLAIMS ARISING FROM
THE NEGLIGENT ACTS OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY. IF AN
INDEMNIFIED PARTY SHALL BE MADE A PARTY TO ANY SUCH LITIGATION COMMENCED
AGAINST TENANT, TENANT SHALL, AT ITS OPTION, EITHER DEFEND, AT TENANT'S
SOLE COST AND EXPENSE, SUCH INDEMNIFIED PARTY WITH COUNSEL SELECTED BY
TENANT REASONABLY ACCEPTABLE TO SUCH INDEMNIFIED PARTY OR PAY ALL COSTS
AND REASONABLE ATTORNEYS' FEES AND EXPENSES INCURRED OR PAID BY SUCH
INDEMNIFIED PARTY IN CONNECTION WITH SUCH LITIGATION. IN THE EVENT TENANT
SHALL, PURSUANT TO THIS PARAGRAPH 8, DISCHARGE ANY CLAIM AGAINST AN
INDEMNIFIED PARTY, TENANT SHALL BE SUBROGATED TO THE RIGHTS OF THE
INDEMNIFIED PARTY WITH RESPECT THERETO, EXCEPT THAT IN NO EVENT SHALL
TENANT BE THEREBY SUBROGATED TO A CLAIM AGAINST ANOTHER INDEMNIFIED PARTY.
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(b) TENANT SHALL INDEMNIFY EACH INDEMNIFIED PARTY WITH RESPECT TO
ANY LOSS OR DAMAGE SUFFERED BY LANDLORD OR SUCH OTHER INDEMNIFIED PARTY BY
REASON OF ANY MATERIAL INACCURACY OR MISSTATEMENT IN ANY REPRESENTATION OR
WARRANTY OF TENANT SET FORTH IN THIS LEASE OR IN ANY CERTIFICATE DELIVERED
TO ANY INDEMNIFIED PARTY PURSUANT TO THIS LEASE.
(c) TENANT'S OBLIGATIONS AND LIABILITIES UNDER THIS PARAGRAPH 8
SHALL SURVIVE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE.
(d) EACH PERSON OR ENTITY THAT IS AT ANY TIME AN INDEMNIFIED PARTY
SHALL REMAIN AN INDEMNIFIED PARTY WITH RESPECT TO THE PERIOD WHICH IT HELD
AN INTEREST IN THE PREMISES, THE MORTGAGE, LANDLORD OR MORTGAGEE,
NOTWITHSTANDING THE CONVEYANCE OR OTHER TRANSFER BY SUCH INDEMNIFIED PARTY
OF ITS INTEREST IN THE PREMISES, THE MORTGAGE, LANDLORD OR MORTGAGEE, OR
THE RELEASE OF ANY MORTGAGE.
9. LIENS.
Tenant will not, directly or indirectly, create or permit to be
created and to remain for more than thirty (30) days after the creation thereof,
and will, subject to Paragraph 18 below, promptly discharge, at Tenant's
expense, within thirty (30) days after receipt of notice thereof, any mortgage,
lien, encumbrance or charge on, pledge of, or conditional sale or other title
retention agreement with respect to, the Premises or any part thereof or
Tenant's interest therein or the Basic Rent, Additional Rent or other sums
payable by Tenant under this Lease, other than any Mortgage (as defined in
Subparagraph 23(a)) or other encumbrance created by Landlord or the Permitted
Exceptions set forth in EXHIBIT 9. Nothing contained in this Lease shall be
construed as constituting the consent or request, expressed or implied, by
Landlord to or for the performance of any labor or services or of the furnishing
of any materials for any construction, alteration, addition, repair or
demolition of or to the Premises or any part thereof by any contractor,
subcontractor, laborer, materialman or vendor. Notice is hereby given that
Landlord will not be liable for any labor, services or materials furnished or to
be furnished to Tenant, or to anyone holding the Premises or any part thereof,
and that no mechanic's, construction or other liens for any such labor, services
or materials shall attach to or affect the interest of Landlord in and to the
Premises.
10. MAINTENANCE AND REPAIR.
(a) Tenant acknowledges that, with full awareness of its obligations
under this Lease, Tenant has accepted the condition, state of repair and
appearance of the Premises.
(b) Except as otherwise provided in Paragraph 15, Tenant agrees
that, at its expense, it shall put, keep and maintain the Premises,
including any altered, rebuilt or additional buildings, structures and
other improvements thereto or thereon, in good and safe condition, repair
and appearance, reasonable wear and tear excluded, and in a manner at
least equal to the way in which the Premises (as of the commencement of
the Term) is currently maintained, and shall make all repairs and
replacements necessary therefor including (without limitation) any needed
capital repairs, replacements or improvements. Tenant will keep the
Premises orderly and free and clear of rubbish. Tenant covenants to
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perform or observe all terms, covenants and conditions of any easement,
restriction, covenant, reciprocal easement agreement, declaration and
maintenance agreement (collectively, "EASEMENTS") to which it may at any
time be a party or to which the Premises are currently subject or become
subject pursuant to this Lease (including easements created pursuant to
the REA (as defined in Subparagraph 38(b)) whether or not such performance
is required of Landlord under such Easements, including without
limitation, payment of all amounts due from Landlord or Tenant (whether as
assessments, service fees or other charges) under such Easements. Tenant
shall, at its expense, use reasonable efforts to enforce compliance with
any Easements benefiting the Premises by any other person or entity or
property subject to such Easement. Landlord shall not be required to
maintain, repair or rebuild, or to make any alterations, replacements,
improvements or renewals of any nature to the Premises, or any part
thereof, whether ordinary or extraordinary, expense items or capital
items, structural or nonstructural, foreseen or not foreseen, or to
maintain the Premises or any part thereof in any way or to correct any
patent or latent defect therein. Tenant hereby expressly waives any right
to make repairs at the expense of Landlord which may be provided for in
any law in effect at the time of the commencement of the Term or which may
thereafter be enacted. If Tenant shall vacate or abandon the Premises, it
shall give Landlord notice thereof as soon as reasonably possible, but no
abandonment or vacating of all or any portion of the Premises shall
release or relieve Tenant from any obligations under this Lease, and
Tenant shall continue to fully and timely perform all obligations of
Tenant under this Lease.
(c) Subject to Paragraph 18 below, if any Improvements situated on
the Premises at any time during the Term shall encroach upon any property,
street or right of way adjoining or adjacent to the Premises, shall
violate any Legal Requirement or shall impair the rights of others under
or hinder or obstruct any Easement or right of way to which the Premises
is subject, then, promptly after the written request of any applicable
Governmental Authority, Landlord or any other person or entity affected by
any such encroachment, violation, impairment, hindrance or obstruction
(which other person or entity may be Landlord with respect to any such
encroachment, violation or impairment which first arises after the date of
this Lease), Tenant shall, at its expense, exercise commercially
reasonable efforts to either (i) obtain legally effective variances of
such legal requirements or waivers or settlements of all claims,
liabilities and damages resulting from each such encroachment, violation,
impairment, hindrance or obstruction whether the same shall affect
Landlord, Tenant or both, or (ii) make such changes in the Improvements on
the Premises and take such other action as shall be necessary to remove
such encroachments, hindrances or obstructions and to end such violations
or impairments, including, if necessary, the alteration or removal of any
Improvement on the Premises; provided, however, Tenant shall do so only
(1) in a manner that does not lessen the market value of the Premises and
(2) in conformity with the requirements of Paragraph 11 to the same extent
as if such alteration or removal were an alteration subject to the
provisions of Paragraph 11.
(d) Landlord, any Mortgagee and their respective agents and
designees may, in the company of a representative of Tenant if Tenant so
requires, enter upon and inspect the Premises at reasonable times and on
reasonable prior notice and show the Premises to prospective Mortgagees
and/or purchasers. Tenant may designate an employee to
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accompany Landlord, any Mortgagee and their respective agents and
designees on such examinations. Tenant will provide, upon Landlord's
written request, records for the prior twelve (12) months with respect to
operating expenses (such as utility costs and maintenance expenses) of the
Premises and for the prior five (5) years, where applicable, with respect
to repair and replacement of structural elements, roof and mechanical
systems in the Premises, provided, except as may be explicitly required
elsewhere in this Lease, Tenant shall have no obligation to disclose
records relating solely to the operation of Tenant's business as opposed
to the operation, repair or replacement of the Premises. All such
information will be certified as true, complete and correct to the best of
Tenant's knowledge.
11. ALTERATIONS.
(a) Tenant may make or suffer to be made any non-structural
alterations, additions or improvements in, on or to the Premises or any
part thereof ("ALTERATIONS"), provided Tenant shall not make any
Alterations which would (i) reduce by more than $250,000 (as determined
with respect to each Alterations project) the fair market value of the
Premises (determined without regard to the existence of this Lease), (ii)
create a hazardous or illegal condition or violate any Legal Requirements,
(iii) change the intended use of the Premises from the use permitted under
Paragraph 3, (iv) increase the risk of a violation of any Environmental
Law or otherwise increase any environmental risk to the Premises, (v)
result in the rescinding or adverse modification of any waiver or
stand-still agreement as to environmental compliance matters, zoning or
any other Legal Requirements granted by any Governmental Authority,
without, in each such case, submitting a written request for and obtaining
the prior written consent of Landlord, which consent may be withheld in
Landlord's absolute discretion (Alterations described in any one or more
of the foregoing clauses (i) -- (v) being referred to as "RESTRICTED
ALTERATIONS"). Redecoration of the interior of the Premises, such as
painting, wallpapering, replacement of light fixtures or floor covering,
and installation or deinstallation of artworks shall not constitute
Alterations for purposes of this Lease. Moreover, Tenant shall not be
required to obtain the prior written consent of Landlord as to
non-structural alterations consisting solely of the reconfiguration of
offices, workstations, support spaces and common areas in the Premises
which are not Restricted Alterations ("PERMITTED OFFICE
RECONFIGURATIONS"). Without limitation of Landlord's right to withhold its
consent to Restricted Alterations, (A) Landlord may withhold its consent
if an Event of Default then exists and (B) any consent to the making of
Restricted Alterations may be conditioned on the requirement that Tenant
remove any such Restricted Alterations at the end of the Term (as it may
be extended) and put the Premises back into its former condition, and
repair any damage to the Premises caused thereby. In the event that the
projected cost of any proposed Alterations (exclusive of Permitted Office
Reconfigurations) exceeds $10,000,000, (i) Tenant shall not commence the
work until and unless Landlord shall have approved plans and
specifications for such Alterations, which approval shall not be
unreasonably withheld or delayed, and (ii) upon Landlord's written
request, Tenant shall submit the written opinion of an MAI appraiser
reasonably acceptable to Landlord (or other evidence reasonably acceptable
to Landlord) that the proposed Alterations shall not reduce the fair
market value of the Premises (determined without regard to the existence
of this Lease) by more than $250,000. In the
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event Tenant makes any changes in or to any mechanical component of the
Premises (for example, a portion of the HVAC system), Tenant shall install
mechanical equipment of equal or greater quality, functionality and
utility. Notwithstanding anything in this Lease to the contrary, without
Landlord's prior written consent (which consent shall not be unreasonably
withheld, delayed or conditioned), no Alterations shall be made to the
Premises that consist of (i) the construction of any new or additional
buildings or major structures or material additions to or expansions of
any existing Improvements, (ii) the demolition of any Improvements or any
material portions thereof, or (iii) the material modification of any
structural components of the Improvements.
(b) All Alterations shall be constructed in a good and workmanlike
manner in compliance with all Legal Requirements. Tenant shall satisfy the
following conditions in connection with all Alterations, including
Permitted Office Reconfigurations:
(1) Tenant shall pay or cause to be paid the entire cost of such
Alterations;
(2) Tenant shall take all necessary steps to prevent the imposition
of liens against the Premises as a result of such Alterations;
(3) Tenant shall obtain and pay for all building, occupancy and
other required permits and shall comply with all applicable Legal
Requirements and deliver copies of all such permits to Landlord as soon as
reasonably possible following issuance thereof;
(4) Tenant shall cause the construction of Alterations, once
commenced, to be diligently pursued to completion;
(5) If the Alterations include any changes or new matter which would
be shown on an updated ALTA/ACSM Class A Urban survey of the Premises
(including Table A and other items customarily required by institutional
lenders), then Tenant shall obtain and submit to Landlord, promptly
following substantial completion of the Alterations, a revised ALTA/ACSM
Class A Urban survey of the Premises certified, and in a form reasonably
satisfactory, to Landlord;
(6) Except for Permitted Office Reconfigurations, Tenant shall
provide Landlord with plans and any change orders for all Alterations as
soon as reasonably possible following substantial completion of the
Alterations; and
(7) If the Alterations, together with any other related Alterations
or series of related Alterations are reasonably expected to cost in excess
of $10,000,000 in the aggregate, Tenant shall provide to Landlord (i) a
construction budget showing all "hard" and "soft" costs to be incurred in
connection with all such Alterations, plus a reasonable contingency, and
(ii) a proposed schedule of construction for the Alterations.
(c) Notwithstanding anything to the contrary stated in this
Paragraph 11, in the event Tenant is required to make Alterations to the
Premises in order to comply with any Legal Requirements, Tenant shall (to
the maximum extent reasonably possible in compliance with all Legal
Requirements) satisfy the conditions specified in clauses (1) through (7)
of this Paragraph 11 with respect to such Alterations and make or cause to
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make such Alterations in the manner which will have the least negative
impact on the market value of the Premises.
(d) Except as Landlord and Tenant otherwise agree in writing, all
Alterations other than Severable Additions shall at once become a part of
the realty and belong to Landlord. Severable Additions, movable furniture,
furnishings, decorations, art work, trade fixtures and other personal
property of Tenant and its sublessees may be removed from the Premises
upon or at any time prior to the expiration or earlier termination of this
Lease, provided that Tenant shall repair any damage to the Premises
resulting from such removal. For purposes of this Lease, the term
"SEVERABLE ADDITIONS" shall mean all additions to the Premises prior to or
during the Term which (1) are readily removable without causing more than
de minimus damage to the Premises, (2) will not reduce the value, useful
life or utility of the Premises if removed, (3) are not required for
lawful occupancy of the Premises, and (4) have been paid for by Tenant
after the date of this Lease. The obligations of Tenant under this
Paragraph 11 shall survive expiration or earlier termination of this
Lease.
12. INSURANCE.
(a) Tenant shall maintain, or cause to be maintained, at its sole
expense, the following insurance on the Premises (herein called the
"REQUIRED INSURANCE"):
(i) Property insurance insuring the Improvements for risks of
direct physical loss and for perils covered by the causes of
loss-special form (all risk, extended coverage) and, in addition,
change in ordinances or laws coverage and boiler and machinery
coverage (if applicable). Such insurance shall be written on a
replacement cost basis with an agreed value equal to the full
insurable replacement value of the Improvements. The policy shall
name Landlord and any first Mortgagee as "additional insureds and
loss payees" as to the Premises only and as their interests may
appear. The loss payable endorsement in favor of the first Mortgagee
shall be on form 438BFU or such other form as shall be specified by
the first Mortgagee and acceptable to the insurance carrier.
(ii) Commercial general liability insurance naming the
Landlord and any Mortgagee as additional insureds against any and
all claims as are customarily covered under a standard policy form
routinely accepted, for bodily injury, death and property damage
occurring in or about the Premises. Such insurance shall have a
combined single limit of not less than $2,000,000 per occurrence
with a minimum $10,000,000 aggregate limit and excess umbrella
liability insurance in the amount of at least $20,000,000. If Tenant
has other locations that it owns or leases, the liability insurance
provided by this clause (ii) policy may be a so-called blanket
policy. Tenant shall be required to increase its insurance limits
from time to time consistent with coverage on properties similarly
constructed, occupied and maintained. Such liability insurance shall
be primary and not contributing to any insurance available to
Landlord, and Landlord's insurance, if any, shall be in excess
thereto. In no event shall the limits of such insurance be
considered as limiting the liability of Tenant under this Lease.
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(iii) During any period of construction on the Premises,
builder's risk insurance insuring perils covered by the loss-special
form (all risk, extended coverage) shall be purchased for the value
of the alteration and/or additions made to the Premises when the
work is not insured under the Tenant's property insurance policy.
Each builder's risk policy shall name Landlord and any first
Mortgagee as additional insureds and loss payees as their interests
may appear.
(iv) Flood insurance in a commercially reasonable amount if
the Premises are located in a special flood hazard zone.
(v) Rental value insurance in an amount equal to at least
twelve (12) months of Basic Rent and Additional Rent (as reasonably
estimated by Landlord) due and payable under this Lease.
(b) The policies required to be maintained by Tenant shall conform
to S&P and Moody's securitization guidelines and shall be with companies
having (i) an insurance company claims paying rating equal to or greater
than A- by Standard & Poor's Corporation or A2 by Xxxxx'x Investment
Service, or (ii) a general policy rating of A or better and a financial
class of X or better by A.M. Best Company, Inc. Insurers shall be licensed
to do business in the State of Texas and domiciled in the USA. Except as
may be otherwise specified in Subparagraph 12(a), any deductible amounts
under any insurance policies required hereunder shall not exceed
$5,000,000. Certificates of insurance (as to property insurance, using
Accord Form No. 27 (or the equivalent thereof), and as to liability
insurance, using Accord Form 25-S (or the equivalent thereof)), together
with reasonable evidence of payment of the premiums therefor, shall be
delivered to Landlord prior to the commencement date of this Lease and
thereafter at least ten (10) days prior to the expiration date of each
required policy. Tenant shall have the right to provide insurance coverage
which it is obligated to carry pursuant to the terms hereof in a blanket
policy, provided such blanket policy expressly affords coverage to the
Premises and to Landlord and any Mortgagee as required by this Lease. Each
policy of insurance shall provide notification to Landlord and any first
Mortgagee at least thirty (30) days prior to any non-renewal, cancellation
or modification to reduce the insurance coverage.
(c) Insurance claims by reason of damage to or destruction of any
portion of the Premises shall be adjusted by Tenant if an Event of Default
does not then exist and the reasonable estimate by Tenant of the cost to
repair the damage does not exceed $10,000,000, or by Landlord and Tenant
jointly if an Event of Default does not then exist and the reasonable
estimate by Tenant of the cost to repair the damage exceeds $10,000,000,
or by Landlord alone if an Event of Default then exists. Tenant shall, as
soon as reasonably possible, advise Landlord of such damage or
destruction. Landlord shall not be required to prosecute any claim
against, or to contest any settlement proposed by, an insurer. Tenant may,
at its expense, prosecute any such claim or contest any such settlement in
the name of Landlord, Tenant or both, and Landlord will join therein at
Tenant's written request upon the receipt by Landlord of an indemnity from
Tenant against all costs, liabilities and expenses in connection
therewith. Subject to the provisions of Paragraph 13, if an Event of
Default does not then exist and the cost of
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repair and restoration (as reasonably determined by Tenant) is estimated
to be less than $10,000,000, proceeds from the property insurance policy,
net of Tenant's and Landlord's expenses incurred in adjusting and
collecting such proceeds (such net amount being the "NET INSURANCE
PROCEEDS"), shall be paid to Tenant to pay the cost of restoration at
Tenant's direction. Otherwise, the Net Insurance Proceeds shall be paid to
Landlord and Landlord shall make such proceeds available to Tenant to pay
the cost of such repair and restoration promptly upon submission to
Landlord of the following: (A) prior to commencement of work, plans and
specifications covering all repair and restoration work in form and
substance reasonably acceptable to Landlord, and (B) prior to each
periodic disbursement: (1) certificates of Tenant delivered to Landlord
from time to time as such work or repair progresses, each such certificate
describing the work or repair for which Tenant is requesting payment and
the cost incurred by Tenant in connection therewith and stating that
Tenant has not previously received payment for such work, (2) owner's and
contractor's sworn statements in customary form and appropriate waivers of
mechanic's or construction liens, and (3) architect's certificates in
customary form covering the work for which payment is requested. Subject
to the provisions of Paragraph 13, any portion of the Net Insurance
Proceeds remaining after Tenant has repaired the Premises pursuant to
Paragraph 13 shall be delivered to Tenant. Notwithstanding the foregoing
provisions of this Subparagraph 12(c), (i) Net Insurance Proceeds shall
not include the proceeds of business interruption insurance maintained for
Tenant's benefit or property damage insurance with respect to Tenant's
Excluded Fixtures and (ii) insurance proceeds payable for or attributable
to the rental value insurance maintained pursuant to Subparagraph 12(a)(v)
shall be paid to Landlord if Tenant delivers a Termination Notice pursuant
to Subparagraph 15(a), but otherwise shall be paid to Tenant.
(d) In the event Tenant does not purchase the insurance required by
this Lease or keep the same in full force and effect, Landlord may, but
shall not be obligated to, purchase the necessary insurance and pay the
premium therefor. Tenant shall repay to Landlord, as Additional Rent, the
amount so paid promptly upon demand together with interest at the Default
Rate on such payment from the date expended until the date reimbursed. In
addition, Landlord may recover from Tenant and Tenant agrees to pay, as
Additional Rent, any and all expenses (including reasonable attorneys'
fees) and damages which Landlord may sustain by reason of the failure of
Tenant to obtain and maintain such insurance.
(e) Landlord shall not be limited in the proof of any damages which
Landlord may claim against Tenant arising out of or by reason of Tenant's
failure to provide and keep in force any of the Required Insurance to the
amount of the insurance premium or premiums not paid or incurred by Tenant
and which would have been payable under such insurance; but Landlord shall
also be entitled to recover as damages for such breach, the uninsured
amount of any loss to the extent of any deficiency in the Required
Insurance, and damages, costs and expenses of suit suffered or incurred by
reason of or damage to, or destruction of the Premises, occurring during
any period when the Tenant may have failed or neglected to obtain the
Required Insurance. TENANT SHALL INDEMNIFY AND HOLD HARMLESS LANDLORD AND
ANY MORTGAGEE FOR ANY LIABILITY INCURRED BY LANDLORD OR ANY MORTGAGEE
ARISING OUT OF ANY DEDUCTIBLES FOR REQUIRED INSURANCE.
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(f) At Tenant's option, Tenant may elect to self-insure all or any
portion of the Required Insurance described in Subparagraph 12(a)(ii) if,
and only for so long as, no Event of Default exists and Tenant carries a
senior unsecured long term credit rating of BBB/Baa2 (S&P/Xxxxx'x) or
higher, or in the event no such rating is available, a comparable Issuer
Rating as provided by either S&P or Xxxxx'x and Tenant complies with any
reasonable and customary conditions or requirements of Landlord in
connection with the provision of such self-insurance to confirm an
appropriate self-insurance program. Tenant may not self-insure any of the
other Required Insurance without Landlord's prior written consent. During
any period that Tenant is self-insuring, Tenant shall not be required to
deliver any third party policies, certificates or other evidence of third
party insurance pertaining thereto. If Tenant elects to self-insure, it
shall be obligated to use, or deliver to Landlord (if applicable) or pay
to third parties, all amounts that Landlord, or such third parties, would
have received had Tenant not self-insured. Sums due from Tenant in lieu of
insurance proceeds because of Tenant's self-insurance program shall be
treated as insurance proceeds for all purposes under this Lease, including
Paragraph 13.
(g) Nothing in this Paragraph 12 shall prohibit Tenant from
maintaining at its expense insurance on or with respect to the Premises,
naming Tenant as insured and/or loss payee for any amount greater than the
insurance required to be maintained under this Paragraph 12, unless such
insurance would conflict with or otherwise limit the availability of or
coverage afforded by insurance required to be maintained under this
Paragraph 12.
13. CASUALTY.
If all or a part of the Premises shall be damaged or destroyed by
casualty ("CASUALTY"), subject to the provisions of Paragraph 15, (i)
Tenant shall, with reasonable promptness and diligence, rebuild, replace
and repair any damage or destruction to the Premises, at its expense, in
conformity with the requirements of Paragraph 11 (as if such work were
Alterations) in such manner as to restore the same to the same or better
condition and equivalent or better value, as nearly as reasonably
practicable, as existed immediately prior to such casualty and (ii) there
shall be no abatement or reduction whatsoever of Basic Rent or Additional
Rent. If the estimated cost of rebuilding, replacing and repairing any
damage or destruction to the Premises caused by a Casualty, as reasonably
determined by Tenant, shall exceed $10,000,000, Tenant shall promptly
notify Landlord thereof. In the event of a Casualty which results in
damage or destruction to the Premises which Tenant reasonably estimates
will cost $10,000,000 or more to rebuild, replace and repair and which
occurs within the last two (2) years of the Term, Landlord or Tenant may,
by written notice to the other given within sixty (60) days following such
Casualty, elect that Tenant not be required to rebuild, replace and repair
any damage or destruction caused by such Casualty (such notice being a
"RESTORATION WAIVER"). In the event Landlord gives Tenant a Restoration
Waiver and provided an Event of Default does not then exist, Tenant may
render such Restoration Waiver ineffective by giving to Landlord an
Extension Notice with respect to the next remaining Extended Term, if any
then remains, such Extension Notice to be given, notwithstanding any
contrary notice period specified in Paragraph 4, within thirty (30) days
following
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receipt by Tenant of Landlord's Restoration Waiver. In the event that
Tenant gives an Extension Notice pursuant to this Subparagraph 13(a) (that
is, following receipt of a Landlord's Restoration Waiver), then (1)
notwithstanding any contrary provision in Paragraph 4, the Term shall be
deemed extended for the subject Extended Term at the Basic Rent set forth
in EXHIBIT 5, and (2) Tenant shall not thereafter be entitled to withdraw
its Extension Notice for any reason whatsoever. In the event Landlord or
Tenant gives a Restoration Waiver (other than a Landlord's Restoration
Waiver which is rendered ineffective pursuant to this Paragraph 13(a)),
(A) Tenant shall assign and release to Landlord all insurance proceeds
payable in respect of such Casualty and pay to Landlord the amount of any
deductibles; and (B) Tenant shall pay Basic Rent and Additional Rent and
otherwise comply with the terms of this Lease through the expiration of
the Term of this Lease. This Lease shall terminate and Tenant shall vacate
the Premises on the expiration date of the Term. The obligations of Tenant
under this Paragraph 13 shall survive the expiration or earlier
termination of the Term with respect to any Casualty which occurs prior to
such expiration or earlier termination.
14. CONDEMNATION.
(a) Subject to the rights of Tenant set forth in this Paragraph 14
and in Paragraph 15, Tenant hereby irrevocably assigns to Landlord any
award or payment to which Tenant may be or become entitled with respect to
the taking of the Premises or any part thereof, by condemnation or other
eminent domain proceedings (or under threat thereof) pursuant to any law,
general or special, or by reason of the temporary taking of any interest
in or the use or occupancy of the Premises or any part thereof, by any
Governmental Authority, whether the same shall be paid or payable in
respect of Tenant's leasehold interest hereunder or otherwise; provided,
however, the foregoing assignment shall not apply to any separate award
which Tenant may be entitled to claim against the condemnor with respect
to Tenant's relocation expenses or with respect to the value of Tenant's
personal property and Excluded Fixtures, so long as such separate award
does not reduce the Net Award (as defined below) to which Landlord is
otherwise entitled. In no event shall Tenant be entitled to claim, retain
or receive any award for loss of its leasehold interest in the Premises.
Landlord and any first Mortgagee shall be entitled to participate in, and
shall consult with Tenant regarding, any such proceeding.
(b) For purposes of this Lease, "CONDEMNATION" shall mean a
governmental taking (other than a temporary taking) of all or any material
portion of the Premises or the principal points of ingress or egress of
the Premises to all public roads or to all of the entrances and exits to
and from the parking garage. If during the Term a portion of the Premises
shall be taken by condemnation or other eminent domain proceedings which
taking does not result in a termination of this Lease pursuant to
Paragraph 15 (a "NON-TERMINATION TAKING"), then this Lease shall continue
in full force and effect without abatement or reduction of Basic Rent or
Additional Rent notwithstanding such taking; provided, however, that in
the event of a Non-Termination Taking, then to the extent usable square
footage of the Improvements is taken and cannot be repaired as required
herein, then the Basic Rent shall be equitably reduced from and after the
date of the Condemnation, based upon the part of the Improvements so
taken, to the extent that any portion of the Improvements is not usable by
Tenant for the purposes for which it was
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originally leased. Tenant shall, promptly after any Non-Termination Taking
(including after the cessation of any temporary taking), at its expense,
repair any damage caused thereby in conformity with the requirements of
Paragraph 11 (as if such work were Alterations) so that, thereafter, the
Premises shall be, to the extent reasonably practicable, in a condition as
good as the condition thereof immediately prior to such taking. In the
event of any Non-Termination Taking, Landlord shall make so much of the
Net Award available to Tenant as is required to make such repair (the
"REPAIR PORTION") at Tenant's direction. Any Net Award in excess of the
Repair Portion shall be delivered to and retained by Landlord as
compensation to Landlord for loss of value to the remainder, except that
in the event of any temporary Non-Termination Taking, Tenant shall be
entitled to receive the entire Net Award so remaining to the extent
applicable to the Term, less any costs incurred by Landlord in connection
therewith. If the cost of any repairs required to be made by Tenant
pursuant to this Subparagraph 14(b) shall exceed the amount of the Net
Award, the deficiency shall be paid by Tenant. Notwithstanding anything in
this Paragraph 14 to the contrary, if any Event of Default then exists,
then Landlord shall make any Net Award available to Tenant for the
rebuilding or restoration of the damaged portion of the Premises only in
accordance with those provisions of Subparagraph 12(c) applicable to
casualty damage in excess of $10,000,000.
(c) For the purposes of this Lease the term "NET AWARD" shall mean:
(i) all amounts payable as a result of any condemnation or other eminent
domain proceeding, less all reasonable expenses for such proceeding not
otherwise paid by Tenant in the collection of such amounts (including
without limitation, all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by Landlord in participating in any
condemnation or eminent domain proceedings) plus (ii) all amounts payable
pursuant to any agreement with any condemning authority (which agreement
shall be deemed to be a taking) which has been made in settlement of or
under threat of any condemnation or other eminent domain proceeding
affecting the Premises, less all reasonable expenses incurred as a result
thereof not otherwise paid by Tenant in the collection of such amounts
(including without limitation, all costs and expenses (including
reasonable attorneys' fees and expenses) incurred by Landlord in
participating in any condemnation or eminent domain proceedings).
15. TERMINATION OF LEASE FOLLOWING MAJOR CASUALTY OR CONDEMNATION.
(a) If (1) a Casualty or (2) Condemnation shall occur and:
(i) in the case of an insured Casualty, such Casualty shall
render the Premises unsuitable for restoration for continued use and
occupancy in the business of Tenant and shall (y) be a loss of such
dimension that the Premises cannot be completely restored or rebuilt
within two years computed from the hypothetical date of commencement
of such construction assuming a normal 40 hour per week building
schedule, AND (z) materially damage or destroy more than
seventy-five percent (75%) of the total usable square footage of the
Premises (as determined as of the date of the Casualty) (a Casualty
described in clauses (y) and (z) being a "MAJOR CASUALTY");
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(ii) in the case of a Condemnation (other than a temporary
taking), such Condemnation shall render the Premises unsuitable for
restoration for continued use and occupancy in the business of
Tenant and shall constitute a permanent taking of more than
seventy-five percent (75%) of the total usable square footage of the
Premises (as determined as of the date of the Condemnation) (a
Condemnation described in this subparagraph (ii) being a "MAJOR
CONDEMNATION").
then Tenant may, at its option, exercisable not later than ninety (90)
days after the date of such Major Casualty or Major Condemnation, deliver
to Landlord all of the following: (A) notice (a "TERMINATION NOTICE") of
its election to terminate this Lease on the next rental payment date (as
designated by Tenant) that occurs not less than three (3) months or more
than nine (9) months after the delivery of such notice (the "TERMINATION
DATE"); and (B) in the case of a Major Casualty, the certificate of an
architect licensed in the state in which the Premises is located and
approved by Landlord (such approval not to be unreasonably withheld)
stating that the architect has determined, in its good faith judgment,
both (1) that the Premises cannot be completely restored or rebuilt for
continued use and occupancy in the business of Tenant within a building
construction period of two years computed from the hypothetical date of
commencement of such construction assuming a normal 40 hour per week
building schedule and (2) the Casualty has damaged or destroyed more than
seventy-five percent (75%) of the total usable square footage of the
Premises. As used in this Subparagraph 15(a), the term "usable square
footage of the Premises" shall mean the area of the office, common areas
and other common space in the Buildings (which is approximately 875,694 as
of the date of this Lease) and shall not include any portion of any
parking garage or other parking areas constituting a part of the Premises.
(b) If Tenant delivers to Landlord a Termination Notice, (i) this
Lease shall terminate on the Termination Date, except with respect to
obligations and liabilities of Tenant or Landlord hereunder, actual or
contingent, which have arisen on or prior to the Termination Date, (ii)
the Net Award or Net Insurance Proceeds (including, without limitation,
all rental value insurance proceeds), as the case may be, shall belong and
be paid to Landlord, (iii) Tenant shall pay to Landlord all Basic Rent and
Additional Rent and other sums then due and payable or accrued hereunder
to and including the Termination Date, and (iv) Tenant shall, on or before
the Termination Date, execute and deliver to Landlord an outright
assignment of such award or proceeds in form and substance reasonably
acceptable to Landlord and pay to Landlord an amount equal to any
applicable insurance deductible. In the event Tenant fails to deliver the
Termination Notice in accordance with the time deadline set forth in this
Paragraph 15, then Tenant shall have no right to terminate this Lease
pursuant to this Paragraph 15, and the Lease will continue in full force
and effect.
16. ASSIGNMENT AND SUBLETTING.
(a) Provided no Event of Default then exists, Tenant may sublet all
or any part of the Premises (provided, that each such sublease shall
expressly be made subordinate to this Lease and subject to the provisions
of this Lease, including Paragraph 3, and no
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sublease term shall extend beyond the last day of the then scheduled
expiration of the Term) and may assign all its rights and interests under
this Lease without Landlord's prior consent, except as may be required
below in this Subparagraph 16(a) provided that the use of the Premises by
any such assignee or subtenant continues to comply with the provisions of
Paragraph 3 and any such assignee or subtenant is of a type or character
that is customarily found in Class A office complexes comparable to the
Premises. If Tenant assigns all of its rights and interests under this
Lease, the assignee under such assignment shall expressly assume all the
obligations of Tenant under this Lease in an instrument, approved by
Landlord as to form and substance (which approval will not be unreasonably
withheld, conditioned or delayed) and delivered to Landlord at the time of
such assignment. No assignment or sublease made as permitted by this
Subparagraph 16(a) shall affect or reduce any of the obligations of Tenant
hereunder and the Tenant shall remain unconditionally liable, and all such
obligations shall continue in full force and effect as obligations of a
principal and not as obligations of a guarantor or surety, to the same
extent as though no assignment or subletting had been made; provided that
performance by any such assignee or sublessee of any of the obligations of
Tenant under this Lease shall be deemed to be performance by Tenant.
Tenant shall be entitled to retain any excess of the rent payable under
any sublease over the Basic Rent payable under this Lease. No sublease or
assignment made as permitted by this Subparagraph 16(a) shall impose any
obligations on Landlord or otherwise affect any of the rights of Landlord
under this Lease. Neither this Lease nor Tenant's leasehold estate shall
be mortgaged, pledged or hypothecated by Tenant or any assignee or
sublessee, nor shall Tenant mortgage or pledge the interest of Tenant in
and to any sublease or assignment of the Premises or the rentals payable
thereunder. Any mortgage, pledge, sublease or assignment made in violation
of this Subparagraph 16(a) shall be void. Tenant shall, within ten (10)
days after the execution and delivery of any such assignment of this Lease
or sublease of all or a portion of the Premises, deliver a conformed copy
thereof to Landlord.
(b) Notwithstanding anything to the contrary contained in this
Lease, Tenant shall have the right to assign and/or sublease, and
Landlord's consent shall not be required to any such assignment and/or
subletting, to any corporation or other entity which succeeds to all or
substantially all of the assets and business of Tenant, whether by merger,
consolidation, purchase of assets or other similar corporate
restructuring. In such event, the successor entity shall automatically
become the Tenant under this Lease and if the credit rating of the
successor entity is investment grade and at least equal to Tenant's credit
rating prior to such merger, consolidation, purchase of assets or other
similar corporate restructuring, the prior Tenant hereunder shall have no
further obligations, duties or liabilities under this Lease.
17. FINANCIAL STATEMENTS.
Tenant shall deliver to Landlord copies (in either print or electronic
form) of all 8-K, 10-K and 10-Q reports filed with the Securities and
Exchange Commission ("SEC") by Tenant, in each case within fifteen (15)
days following delivery to the SEC; provided, however, reports filed
electronically with the SEC shall be considered delivered to Landlord for
purposes of this Paragraph 17 provided that (i) Tenant provides to
Landlord
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notice by electronic mail, at an e-mail address provided to Tenant by
Landlord, of each such electronic filing within five (5) days after the
making of any such filing, and (ii) upon written request by Landlord
provides to Landlord a copy of any such filing in print form. If Tenant is
not required to file such reports with the SEC, Tenant shall deliver to
Landlord the following:
(i) QUARTERLY STATEMENTS. Within forty-five (45) days after
the end of each quarterly fiscal period (except the last) in each
fiscal year of Tenant, copies of:
(A) a consolidated balance sheet of Tenant and its
consolidated subsidiaries as at the end of such quarter,
(B) a consolidated statement of profits and losses of
Tenant and its consolidated subsidiaries for the current
quarter and the portion of the fiscal year ending with such
quarter, and
(C) a consolidated statement of cash flows of Tenant and
its consolidated subsidiaries for the portion of the fiscal
year ending with the current quarter;
setting forth in each case, in comparative form the figures for the
corresponding periods a year earlier, all in reasonable detail and certified as
having been prepared in accordance with generally accepted accounting principles
consistently applied and certified as complete and correct by a senior financial
officer of Tenant;
(ii) ANNUAL STATEMENTS. Within ninety (90) days after the end
of each fiscal year of Tenant, duplicate copies of:
(A) a consolidated balance sheet of Tenant and its
consolidated subsidiaries as at the end of such year,
(B) consolidated statements of profits and losses of
Tenant and its consolidated subsidiaries for such year, and
(C) a consolidated statement of cash flows of Tenant and
its consolidated subsidiaries for such year;
setting forth in each case, in comparative form, the figures for the previous
fiscal year, all in reasonable detail and accompanied by the report thereon,
containing an opinion prepared by a firm of independent certified public
accountants selected by Tenant which opinion shall state that the consolidated
financial statements of Tenant and its consolidated subsidiaries fairly present
the financial condition of the companies (including the results of their
operations and changes in financial position) being reported upon, have been
prepared in accordance with generally accepted accounting principles
consistently applied and that the examination of such accounts in connection
with such financial statements has been made in accordance with generally
accepted auditing standards and, accordingly, included such tests of the
accounting records and such other auditing procedures as were considered
necessary in the circumstances. If Tenant becomes a
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privately-held company, Landlord agrees that all financial statements and other
financial information delivered by Tenant to Landlord pursuant to this Lease
will be deemed confidential information (the "CONFIDENTIAL INFORMATION").
Landlord will not disclose or use, and will cause its officers, directors,
partners, employees, representatives, agents and advisors not to disclose or
use, any Confidential Information except in connection with this Lease;
provided, however, Landlord may provide copies of the Confidential Information
to any prospective Mortgagee or prospective purchasers of or investors in the
Premises, subject to such parties executing a confidentiality agreement
reasonably acceptable to Tenant. Upon request by Landlord, Tenant shall also
provide Landlord (i) access to Tenant's books and records and relevant financial
information with respect to the operation and maintenance of the Premises as is
necessary for Landlord to fulfill any reporting requirements applicable to
Landlord and (ii) an annual budget (containing both operating and capital
budgets) for the operation and maintenance of the Premises. At Landlord's
request, on an annual basis, Tenant will make appropriate representatives of
Tenant available to review and discuss any such budget and any items therein in
light of the obligations of Tenant under this Lease.
18. PERMITTED CONTESTS.
So long as no Event of Default then exists, Tenant shall not be required
to (i) pay any Imposition (as defined in Subparagraph 33(c)); (ii) comply with
any Legal Requirements; (iii) discharge or remove any lien, encumbrance or
charge; or (iv) obtain any waivers or settlements or make any changes to the
physical condition of the Premises or take any other action with respect to any
encroachment, hindrance, obstruction, violation or impairment referred to in
Subparagraph 10(c), so long as Tenant shall contest, in good faith and at its
expense, the existence, the amount or the validity thereof, the amount of the
damages caused thereby, or the extent of its liability therefor, by appropriate
proceedings provided that (A) during the pendency of the contest there is
prevented (1) the collection of, or other realization upon, the tax, assessment,
levy, fee, rent or charge or lien, encumbrance or charge so contested (or in the
alternative, Tenant pays the full amount in dispute under protest); (2) the
sale, forfeiture or loss of the Premises, or any part thereof, or the Basic Rent
or any Additional Rent, or any portion thereof; (3) any interference with the
payment of the Basic Rent or any Additional Rent, or any portion thereof; and
(4) any impairment of the fair market value of the Premises; and (B) such
contest shall not subject Landlord or any Mortgagee to the risk of any criminal
liability. While any such proceedings are pending, so long as all of the
foregoing conditions continue to be met, Landlord shall not pay, remove or cause
to be discharged the tax, assessment, levy, fee, rent or charge or lien,
encumbrance or charge thereby being contested. Tenant further agrees that each
such contest shall be prosecuted to a final conclusion as soon as reasonably
possible. TENANT SHALL PAY, INDEMNIFY, DEFEND (WITH COUNSEL SELECTED BY TENANT
AND REASONABLY ACCEPTABLE TO LANDLORD) AND HOLD HARMLESS THE INDEMNIFIED PARTIES
(AS DEFINED IN SUBPARAGRAPH 7(e)) AGAINST, ANY AND ALL LOSSES, JUDGMENTS,
DECREES AND COSTS (INCLUDING ALL REASONABLE ATTORNEYS' FEES AND EXPENSES) IN
CONNECTION WITH ANY SUCH CONTEST AND SHALL, PROMPTLY AFTER THE FINAL SETTLEMENT,
COMPROMISE OR DETERMINATION OF SUCH CONTEST, FULLY PAY AND DISCHARGE THE AMOUNTS
WHICH SHALL BE LEVIED, ASSESSED, CHARGED OR IMPOSED OR BE DETERMINED TO BE
PAYABLE THEREIN OR IN CONNECTION THEREWITH, TOGETHER WILL ALL PENALTIES, FINES,
INTERESTS, COSTS AND EXPENSES THEREOF OR IN CONNECTION THEREWITH, AND PERFORM
ALL ACTS, THE PERFORMANCE OF WHICH SHALL BE ORDERED OR DECREED AS A RESULT
THEREOF. The obligations of Tenant under this Paragraph 18 shall survive
expiration or earlier termination of this Lease.
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19. DEFAULT PROVISIONS.
(a) Any of the following occurrences or acts shall constitute an
event of default (herein called an "EVENT OF DEFAULT") under this Lease:
(i) If Tenant, at any time during the continuance of this
Lease (and regardless of the pendency of any bankruptcy,
reorganization, receivership, insolvency or other proceedings, at
law, in equity, or before any administrative tribunal, which have or
might have the effect of preventing Tenant from complying with the
terms of this Lease), shall (A) fail to make any payment when due of
Basic Rent and such failure continues for ten (10) Business Days
following written notice from Landlord to Tenant specifying such
failure, (B) fail to make any payment when due of Additional Rent
and such failure continues for twenty (20) Business Days following
written notice from Landlord to Tenant specifying such failure, (C)
fail to maintain any insurance required under this Lease and such
failure continues for ten (10) Business Days following written
notice from Landlord to Tenant specifying such failure, or (D) fail
to observe or perform any other material provision hereof for thirty
(30) Business Days following written notice from Landlord to Tenant
specifying such failure, provided, that in the case of any default
referred to in this Lease which is reasonably susceptible of cure
but cannot with diligence be cured within such thirty (30) Business
Day period, then, upon receipt by Landlord of a certificate of
Tenant signed by an officer of Tenant stating the reason such
default cannot be cured within thirty (30) Business Days, describing
the efforts being undertaken by Tenant to cure such default and
reasonably estimating the cure period, and provided that Tenant at
all times proceeds with good faith due diligence to cure such
default, the time within which such failure may be cured shall be
extended for such period as may be necessary to complete the curing
of the same with continuous, good faith due diligence (provided
further that Tenant shall provide Landlord with an update of such
original certificate, signed by an officer of Tenant, no less
frequently than monthly, which update shall include a reasonably
detailed description of what Tenant is continuing to do and what
Tenant has then accomplished, and a reasonable estimate of how long
it will take to complete the cure); or
(ii) If any representation or warranty of Tenant set forth in
this Lease or in any written certificate delivered pursuant to, or
in connection with, this Lease shall prove to be incorrect in any
material respect as of the time when the same shall have been made
and as of the time when the incorrectness shall be discovered and if
reasonably susceptible of cure shall not have been cured within
thirty (30) Business Days after receipt of written notice to Tenant
thereof, provided that, upon receipt by Landlord of a certificate of
Tenant signed by an officer of Tenant stating the reason such
incorrectness has not been cured within such thirty (30) Business
Day period, describing the efforts being undertaken by Tenant to
cure such default and reasonably estimating the cure period, and
provided that Tenant at all times proceeds with good faith due
diligence to cure such default, the time within which such
incorrectness may be cured shall be extended for such period as may
be necessary to complete the curing of the same
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with continuous, good faith due diligence (provided further that
Tenant shall provide Landlord with an update of such original
certificate, signed by an officer of Tenant, upon Landlord's
request, which update shall include a reasonably detailed
description of what Tenant is continuing to do and what Tenant has
then accomplished, and a reasonable estimate of how long it will
take to complete the cure); or
(iii) If Tenant shall file a petition commencing a voluntary
case under the Federal Bankruptcy Code or any other federal or state
law (as now or hereafter in effect) relating to bankruptcy,
insolvency, reorganization, winding-up or adjustment of debts
(hereinafter singly a "BANKRUPTCY LAW" and collectively "BANKRUPTCY
LAWS") or if Tenant shall (A) apply for or consent to the
appointment of, or the taking of possession by, any receiver,
custodian, trustee, United States Trustee or liquidator (or other
similar official) of the Premises or any part thereof or of any
substantial portion of Tenant's property or (B) make a general
assignment for the benefit of its creditors; or
(iv) If an order for relief against Tenant shall be entered in
any involuntary case under the Federal Bankruptcy Code or any
similar order against Tenant shall be entered pursuant to any other
Bankruptcy Law, or if a petition commencing an involuntary case
against Tenant or proposing the reorganization of Tenant under any
Bankruptcy Law shall be filed and not be discharged or denied within
ninety (90) days after such filing, or if an order, judgment or
decree by any court of competent jurisdiction approving or ordering
(A) the liquidation, reorganization, dissolution, winding-up or
adjustment of debts of Tenant, or (B) the appointment of a receiver,
custodian, trustee, United States Trustee or liquidator (or any
similar official) of the Premises or any part thereof or of Tenant
or of any substantial portion of Tenant's property shall be entered
and continue unstayed and in effect for ninety (90) days.
(b) If an Event of Default shall have occurred and be continuing,
Landlord shall have, in its sole discretion, the following rights:
(i) To terminate the Term of this Lease by written notice to
Tenant. Thereupon, the Term of this Lease and the estate hereby
granted shall terminate on the date on which Landlord designates in
such notice as completely and with the same effect as if such date
were the date fixed herein for the expiration of the Term of this
Lease, and all rights of Tenant hereunder shall terminate, but
Tenant shall remain liable as provided herein. In the event of
Landlord's termination of this Lease, Tenant shall pay to Landlord
all Basic Rent and Additional Rent to and including the date of
termination.
(ii) If Landlord has terminated the Lease pursuant to clause
(i) above, to (A) re-enter and repossess the Premises or any part
thereof by summary proceedings, ejections or otherwise and (B)
remove all persons and property therefrom.
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(iii) To use reasonable efforts to relet the Premises or any
part thereof for the account of Tenant, in the name of Tenant or
Landlord or otherwise, without notice to Tenant, for such term or
terms (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Lease)
and on such conditions (which may include concessions or free rent)
and for such uses as Landlord, in its absolute discretion, may
determine; provided Landlord shall not be required to make any
effort to relet the Premises except as required by applicable law.
Landlord may collect and receive any rents payable by reason of such
reletting. If the Premises are relet by Landlord for the account of
Tenant, Tenant shall be liable to Landlord for, and shall pay to
Landlord, as damages (A) all Basic Rent and all Additional Rent as
and when such amounts would be payable under this Lease by Tenant in
the absence of any such reletting, together with all reasonable
expenses of Landlord in connection with such reletting efforts, if
any (including, without limitation, all reasonable repossession
costs, brokerage commissions, reasonable attorneys' fees and
expenses, and reasonable repair costs), less (B) the net proceeds,
if any, of any reletting. Notwithstanding the foregoing, in the
event any such reletting is for a term longer than the balance of
the Term, Tenant shall be responsible for only a proportionate part
of the expenses based on the balance of the Term as compared to the
fixed minimum term of the reletting. Tenant shall pay such damages
on the dates on which Rent would be payable under this Lease in the
absence of such reletting, and Landlord shall be entitled to recover
the same from Tenant on each such date.
(iv) without thereby waiving such Event of Default, Landlord
may, but shall not be obligated to, take all action, including,
without limitation, entry upon the Premises, to perform the
obligation of Tenant hereunder immediately and without notice in the
case of any emergency as may be reasonably determined by Landlord
and upon five (5) business days' notice to Tenant in other cases.
All reasonable expenses incurred by Landlord in connection
therewith, including, without limitation, reasonable attorneys' fees
to the extent actually incurred and expenses (including, without
limitation, those incurred in connection with any appellate
proceedings), shall constitute Additional Rent under this Lease and
shall be paid by Tenant to Landlord upon demand.
(v) In the event of the termination of the Term by reason of
the occurrence of an Event of Default, whether or not Landlord shall
have collected any damages pursuant to clause (i) above with respect
to the period prior to such termination, Landlord shall be entitled
to recover from Tenant, and Tenant shall pay to Landlord on demand,
as damages for Tenant's default and in lieu of all liquidated and
other damages in respect of Basic Rent and Additional Rent due
beyond the date of such termination, an amount equal to the sum of:
(I) the excess of (a) the aggregate of all Basic Rent
and Additional Rent, in each case from the date of such
termination for what is or would have been, in the absence of
such termination, the then unexpired Term, discounted on a
monthly basis at an annual rate equal to the lesser of (1) the
interest rate then chargeable prior to a default under the
note
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secured by the first Mortgage less one percent (1%) or (2) the
then quoted semi-annual yields (which shall be converted to
monthly yields) on U.S. Treasury securities maturing nearest
the end of the Term (as if no termination had occurred) (the
"DISCOUNT RATE") over (b) the then fair rental value of the
Premises for the same period, discounted on a monthly basis at
the Discount Rate, plus
(II) Landlord's other reasonable out-of-pocket expenses
incurred as a result of such Event of Default. If any
applicable law shall limit the amount of damages described in
this Subparagraph 19(b) to less than the foregoing amount,
Landlord shall be entitled to the maximum amount allowable
under such law.
(c) No termination of this Lease pursuant to Subparagraph 19(b)(i),
by operation of law or otherwise, and no repossession of the Premises or
any part thereof pursuant to Subparagraph 19(b)(ii) or otherwise, and no
reletting of the Premises or any part thereof pursuant to Subparagraph
19(b)(iii), and no payment of any amounts by Tenant under Subparagraph
19(b) or the exercise by Landlord of any of its other rights under
Subparagraph 19(b) shall relieve Tenant of any liabilities under this
Lease which by express provision of this Lease survive such expiration,
termination, repossession, reletting or purchase. Nothing in this
Paragraph 19 shall be deemed to waive any duty of Landlord under
applicable law to mitigate damages as a result of an Event of Default.
(d) In the event of litigation between the parties with respect to
the enforcement of Landlord's remedies under this Lease, the losing party
shall reimburse the prevailing party for all reasonable attorneys' fees
and expenses incurred by the prevailing party with respect thereto.
20. ADDITIONAL RIGHTS OF LANDLORD.
(a) The rights and remedies set forth in Subparagraph 19(b) may be
exercised in any order and in any combination whatsoever. No right or
remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy, and each and every right and
remedy shall be cumulative and in addition to any other right or remedy
given hereunder or now or hereafter existing at law or in equity. The
failure of Landlord to insist at any time upon the strict performance of
any covenant or agreement or to exercise any option, right, power or
remedy contained in this Lease shall not be construed as a waiver or a
relinquishment thereof for the future. A receipt by Landlord of any Basic
Rent, any Additional Rent or any other sum payable hereunder with
knowledge of the breach of any covenant or agreement contained in this
Lease shall not be deemed a waiver of such breach, and no waiver by
Landlord of any provision of this Lease shall be deemed to have been made
unless expressed in writing and signed by Landlord. In addition to other
remedies provided in this Lease, Landlord shall be entitled, to the extent
permitted by applicable law, to injunctive relief in case of the
violation, or attempted or threatened violation, of any of the covenants,
agreements, conditions or provision of this Lease, or to a decree or
judgment compelling performance of any of the covenants, agreements,
conditions or provisions of this Lease, or to any other remedy allowed to
-26-
Landlord at law or in equity.
(b) Tenant hereby waives and surrenders (i) any right or privilege
which it or any of them may have under any present or future constitution,
statute or rule of law to redeem the Premises or to have a continuance of
this Lease for the Term hereby demised or for a lesser period after
termination of Tenant's right of occupancy: (1) by order or judgment of
any court, (2) by any legal process or writ, or (3) under the terms of
this Lease or after the termination of the Term of this Lease as herein
provided and (ii) the benefits of any present or future constitution,
statute or rule of law which exempts property from liability for debt or
for distress for rent.
(c) Tenant shall promptly (upon receipt of any invoices therefor)
reimburse Landlord and each Mortgagee for any reasonable costs and
expenses incurred by Landlord and each such Mortgagee in connection with
any consents, approvals, waivers or amendments requested by Tenant of
Landlord and/or any Mortgagee or otherwise required under or in connection
with this Lease.
21. NOTICES, DEMANDS AND OTHER INSTRUMENTS.
Any notice, demand, request, consent, approval, or other instrument
("NOTICE") which may be permitted, required or desired to be given in connection
herewith shall be given in writing and directed to Tenant or Landlord (as
applicable) as follows:
If to Tenant:
RadioShack Corporation
000 XxxxxXxxxx Xxxxxx, XX XX0-000
Xxxx Xxxxx, Xxxxx 00000
Attn.: Vice President -- Corporate Real Estate
Facsimile: (000) 000-0000
With a copy to:
RadioShack Corporation
000 XxxxxXxxxx Xxxxxx, XX CF4-101
Xxxx Xxxxx, Xxxxx 00000
Attn.: Vice President and General Counsel
Facsimile: (000) 000-0000
If to Landlord: Kan Am Xxxxx Kapitalanlagegesellschaft mbH
c/o WestWind Capital Partners, LP
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. XxXxxxxx
L. Xxxx Xxxxx
Xxxxxxxx X. Xxxx
Facsimile: (000) 000-0000
With a copy to: KanAm Xxxxx Kapitalanlagegesellschaft mbH
XxxxxXxxx
00000 Xxxxxxxxx Xx Xxxx
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Attn: Olivier Catusse, Director
Facsimile: 011 49 69 7104 11 600
And with a copy to: King & Spalding, LLP
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attn: W. Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Notices shall be sent by (i) U. S. registered or certified mail, postage
prepaid, return receipt requested, (ii) reputable overnight delivery service
providing proof of receipt, or (iii) hand delivery, to the offices set forth
above, in which case they shall be deemed delivered on the date of delivery to
said offices or refusal to accept delivery, or (iv) by facsimile transmission
during normal business hours followed by a confirmatory letter sent in another
manner permitted hereunder. Any notice actually received or deemed received
pursuant to the foregoing provisions on a non-Business Day or after 5:00 p.m.
(in the recipient's time zone) on a Business Day shall be deemed received on the
next Business Day. Either party may by written notice to the other party given
as provided hereunder change its address for service of Notice to any other
recognized business address in the continental United States. Any address so
designated shall include a street address for courier delivery.
22. TRANSFER BY LANDLORD.
Subject to the provisions of Paragraph 39, when applicable, Landlord
shall be free to transfer its fee interest in the Premises or any part thereof
or interest therein. Landlord shall be released from the responsibility for the
performance of any liabilities and obligations which shall arise under the
terms, covenants and conditions of this Lease subsequent to the date of any such
permitted transfer. In no event shall a transfer or sale of the Premises be
binding upon Tenant until Tenant has received a copy of the original instrument
assigning Landlord's interest in this Lease. Such instrument shall evidence the
fact that such assignee or transferee has assumed full and complete liability
for all future obligations and responsibilities of Landlord, which will arise
under, out of and/or in connection with this Lease from and after the effective
date of such assignment or transfer; provided, however, that such assignee shall
not be liable for the obligations and responsibilities of Landlord arising
under, out of and/or in connection with this Lease prior to the effective date
of such assignment or transfer. In the event that, in compliance with this
Xxxxxxxxx 00, Xxxxxxxx transfers its interest in this Lease, Tenant agrees to
attorn to such assignee or transferee with respect to Tenant's obligations under
this Lease provided such assignee or transferee recognizes Tenant's rights under
this Lease. Tenant shall, upon Landlord's or such transferee's written request,
enter into an attornment agreement providing for such attornment.
23. MORTGAGING BY LANDLORD.
(a) Landlord shall be free to grant one or more mortgages, deeds of
trust or like security interest in the Premises and this Lease
(individually a "MORTGAGE") to one or more mortgagees, deed of trust
trustees or other grantees (individually, together with each holder of any
note secured thereby, a "MORTGAGEE") on the condition that either (i) this
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Lease shall be superior to the Mortgage, or (ii) if this Lease is to be
subordinate to the Mortgage, Tenant receives from the Mortgagee a
subordination, nondisturbance and attornment agreement (an "SNDA")
substantially in the form attached hereto as EXHIBIT 23. Tenant agrees,
within fifteen (15) Business Days after request by Landlord, to execute
and deliver an SNDA substantially in the form attached hereto as EXHIBIT
23 and to cooperate with Landlord and any Mortgagee and consider in good
faith any changes to the form of SNDA attached hereto as EXHIBIT 23
reasonably requested by such Mortgagee. Tenant agrees to attorn, at the
request of any Mortgagee, to such Mortgagee or other transferee upon a
transfer of title by reason of foreclosure of such Mortgage or deed in
lieu of foreclosure thereof. No such transfer shall be effective as to
Tenant until Tenant receives written notice thereof and a certified copy
of the recorded deed or other instrument evidencing such transfer. In
connection with any proposed transfer, pledge or mortgage of Landlord's
fee interest in the Premises or any portion of the ownership interests in
Landlord, Tenant shall, within fifteen (15) Business Days after receipt of
Landlord's written request therefor, provide Landlord and the proposed
transferee and/or Mortgagee with confirmation in writing that subject to
the applicable provisions of Subparagraph 23(a), Tenant shall recognize
such transferee and Mortgagee as such in the event of the consummation of
the transaction described in such notice.
(b) Any Mortgagee which becomes an assignee of Landlord's interest
in this Lease, whether by foreclosure of a Mortgage or pursuant to a deed
in lieu thereof, or any successor to such assignee, shall not be obligated
to perform any duty, covenant or condition required to be performed by
Landlord under any of the terms hereof (except for obligations that first
arise on and after such time as the Mortgagee shall obtain title to the
Premises following foreclosure or deed in lieu of foreclosure), but on the
contrary, Tenant and Landlord, by their respective executions hereof, each
acknowledge and agree that notwithstanding any such assignment each and
all of such duties, covenants or conditions required to be performed by
Landlord shall survive any such assignment and shall be and remain the
sole liability of Landlord. Subject to the prior sentence, any transferee
of Landlord's interest which acquires such interest from a Mortgagee, and
any purchaser of such interest at a foreclosure sale in respect of a
Mortgage (or transferee of a deed in lieu of such a foreclosure), shall
not be obligated to any duty, covenant or condition required to be
performed by Landlord under any of the terms hereof, which obligation
first arises prior to said transferee's or purchaser's acquisition of
Landlord's interest under this Lease and shall not otherwise be liable for
the defaults of any prior Landlord hereunder. Without limiting the
foregoing, Tenant acknowledges and agrees that the rights of all such
assignees, purchasers and transferees in and to Basic Rent and Additional
Rent shall not be subject to any abatement whatsoever, or be subject to
any defense, setoff, counterclaim or recoupment or reduction of any kind
by reason of any event or circumstance which occurred prior to the date
upon which any such assignee, purchaser or transferee obtained title to
the Premises or the Landlord's interest in this Lease. Tenant shall pay
when due all reasonable fees and expenses of any Mortgagee and its
attorneys which are payable by Landlord pursuant to the terms of the
Mortgage and which arise by reason of any default of Tenant under this
Lease or any request by Tenant for any amendment or modification of, or
waiver or consent relating to, the terms of this Lease, any assignment or
subletting or any action otherwise affecting the Premises.
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24. ESTOPPEL CERTIFICATES.
(a) Tenant shall at any time and from time to time, within twenty
(20) days following receipt by Tenant of a written request therefor from
Landlord or any Mortgagee, execute, acknowledge and deliver to such
requesting party executed Tenant's Certificates substantially in the forms
attached hereto as EXHIBIT 24-1 and EXHIBIT 24-2, and confirming or
addressing any other facts, circumstances or matters relating to the Lease
that may be reasonably requested so long as such other facts,
circumstances or matters do not include a waiver of any rights of Tenant.
Any such certificate may be relied upon by any Mortgagee, prospective
purchaser or prospective Mortgagee of the Premises or any interest in
Landlord.
(b) Landlord shall at any time and from time to time, within twenty
(20) days following receipt by Landlord of a written request therefor from
Tenant, execute, acknowledge and deliver to Tenant (or as Tenant may
reasonably direct), a certificate reciting factually correct information
pertaining to this Lease as reasonably requested by Tenant, including,
without limitation, whether to Landlord's actual knowledge Tenant is then
in default hereunder, the last dates and amounts of Rent paid hereunder
and the dates of any modifications to this Lease. Such certificates may be
relied upon by the parties to whom Tenant requests that they be addressed,
including Tenant's lenders or a potential purchaser of Tenant.
25. NO MERGER.
There shall be no merger of this Lease or the leasehold estate
hereby created with the fee estate in the Premises or any part thereof by reason
of the same person acquiring or holding, directly or indirectly, this Lease or
the leasehold estate hereby created or any interest in this Lease or in such
leasehold estate as well as the fee estate in the Premises or any portion
thereof.
26. SURRENDER.
Upon the expiration of the Term or earlier termination of this
Lease, Tenant shall peaceably surrender the Premises to Landlord in the
condition in which the Premises is to be kept under the other provisions of this
Lease, including without limitation, Paragraph 10. There shall be no renewal of
this Lease by operation of law. Tenant shall, at Tenant's expense, remove from
the Premises prior to such termination all property not owned by Landlord, and
immediately repair any damage caused by such removal. Any such Property not so
removed shall, at Landlord's election, become the property of Landlord. Landlord
may thereafter cause such property to be removed and disposed of and the cost of
repairing any damage caused by such removal shall be borne by Tenant.
Notwithstanding anything to the contrary contained herein, upon termination of
this Lease, all building fixtures and mechanical systems, including, but not
limited to, the plumbing, electrical, heating, ventilation and air conditioning
systems, shall remain on the Premises and shall become the property of Landlord.
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27. SEVERABILITY.
Each and every covenant and agreement contained in this Lease is
separate and independent, and the breach of any thereof by Landlord shall not
discharge or relieve Tenant from any obligation hereunder. If any term or
provision of this Lease or the application thereof to any person or
circumstances shall at any time be invalid and unenforceable, the remainder of
this Lease, or the application of such term or provision to persons or
circumstances or at any time other than those to which it is invalid or
unenforceable, shall not be affected thereby, and each such remaining term and
provision of this Lease shall be valid and shall be enforced to the extent
permitted by law.
28. SAVINGS CLAUSE.
No provision contained in this Lease which purports to obligate the
Tenant to pay any amount of interest or any fees, costs or expenses which are in
excess of the maximum permitted by applicable law shall be effective to the
extent that it calls for payment of any interest or other sums in excess of such
maximum.
29. BINDING EFFECT.
Subject to Paragraphs 16, 22 and 23, all of the covenants,
conditions and obligations contained in this Lease shall be binding upon and
inure to the benefit of the respective successors and assigns of Landlord and
Tenant. No amendment of this Lease shall be effective unless expressed in
writing executed by Landlord and Tenant. Time is of the essence of this Lease.
30. MEMORANDUM OF LEASE.
Simultaneously with the execution and delivery hereof, Landlord and
Tenant shall enter into and record, at Tenant's expense, a memorandum of this
Lease in the form of EXHIBIT 30 attached hereto. Upon the expiration or earlier
termination of the Term, Tenant, upon request by Landlord, shall promptly
execute and deliver any documentation reasonably requested by Landlord to
cancel, terminate and release such memorandum from the Real Property Records of
Tarrant County, Texas and any other public records in which it has been
recorded.
31. TABLE OF CONTENTS; HEADINGS.
The table of contents and headings used in this Lease are for
convenient reference only and shall not to any extent have the effect of
modifying, amending or changing the provisions of this Lease.
32. GOVERNING LAW.
This Lease shall be governed by and interpreted under the laws of
the State of Texas.
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33. CERTAIN DEFINITIONS.
(a) The term "BUSINESS DAY" shall mean a day other than Saturday,
Sunday or any day on which regular U.S. mail is not delivered or banks are
generally closed in the State of Texas.
(b) The term "GOVERNMENTAL AUTHORITY" shall mean any federal, state,
county, municipal or any other governmental or regulatory authority,
agency, board, body, commission, instrumentality, court or
quasi-governmental authority (or private entity in lieu thereof).
(c) The term "IMPOSITION" means:
(i) all real estate taxes which either become due during the
Term or accrue during the Term and all other assessments (including
assessments for benefits from public works or improvements, whether
or not begun or completed prior to the commencement of the Term of
this Lease and whether or not to be completed within the Term),
levies, fees, water and sewer rents and charges, and all other
governmental charges of every kind, general and special, ordinary
and extraordinary, whether or not the same shall have been within
the express contemplation of the parties hereto, together with any
interest and penalties thereon, which are, at any time, imposed or
levied upon or assessed against (A) the Premises or any part thereof
or (B) this Lease or the leasehold estate hereby created or which
arise in respect of the ownership, operation, possession, occupancy
or use of the Premises and which either become due during the Term
or accrue during the Term;
(ii) all sales and use taxes be levied or assessed against, or
payable by, Landlord or Tenant (including any taxes not in the
nature of an income tax of Landlord that may be levied or assessed
in the future on the Basic Rent and Additional Rent payable
hereunder) on account of the acquisition, payment of rent or leasing
or use of the Premises or any portion thereof (all taxes and other
governmental charges referred to in the foregoing clauses (i) and
(ii) being referred to collectively as "TAXES"); and
(iii) all charges for water, gas, light, heat, telephone,
electricity, power, trash removal, and other utilities and
communications services rendered or used on or about the Premises.
(d) The term "LANDLORD" means the owner of the rights of the
Landlord under this Lease and upon any assignment or transfer of such
rights, except an assignment or transfer made as security for an
obligation, any heirs, successors and assigns. The assignor or transferor
shall be relieved of all future duties and obligations under this Lease
provided the assignee or the transferee shall expressly agree in writing
to be bound by and to assume all the covenants of Landlord hereunder
arising from and after such assignment or transfer.
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(e) The term "LEASE" means this Lease, as amended and modified from
time to time, together with any memorandum or short form of lease entered
into for the purpose of recording.
(f) The term "LEGAL REQUIREMENTS" means collectively (i) all laws,
rules, regulations, ordinances or orders, in effect from time to time, of
all federal, state, local, county and other Governmental Authorities
having authority over the Premises, any portion thereof, the use thereof,
Tenant or Landlord, including without limitation, all Environmental Laws
and the Americans With Disabilities Act of 1990, 42 U.S.C. Section 12101
et seq. and (ii) any covenants, restrictions or agreements to which the
Premises are subject.
34. ASSIGNMENT OF INTANGIBLES.
(a) Landlord hereby assigns to Tenant, without recourse, all of
Landlord's right, title and interest in all intangible property used in
connection with the Land and Improvements including, without limitation,
all contract rights, guarantees, architectural drawings, plans and
specifications, contracts, licenses, permits, registrations and warranties
relating to the ownership, construction, occupancy, use or maintenance of
the Land or the Improvements, or both (the "INTANGIBLE PERSONAL
Property"), for use by Tenant during the Term. Such assignment shall
terminate upon the expiration or earlier termination of the Term or, if
earlier, upon termination of Tenant's right of possession of the Premises
following the occurrence of an Event of Default.
(b) No later than ninety (90) days following the expiration or
earlier termination of this Lease, Landlord may require in a written
notice to Tenant that Tenant assign to Landlord, effective as of such
expiration or earlier termination of the Term, all rights of Tenant in and
to (i) such Intangible Personal Property used by Tenant in connection with
the Premises as is designated by Landlord in such notice, including,
without limitation, any contract rights, guaranties, licenses, permits,
registrations and warranties (including without limitation licenses,
permits and registrations pertaining to any clean-up or remediation of
Hazardous Material on or about the Premises to the extent such licenses,
permits and registrations may be assigned to Landlord) but excluding any
trade names, service marks, corporate names, or other business licenses
used by Tenant in the operation of its business, which are and shall
remain the property of Tenant and (ii) any economic development incentives
including, but not limited to, economic development grants and property
tax abatements and reimbursements previously or at any time granted to
Tenant by the City of Fort Worth, the Tax Increment Reinvestment Zone
Number Six, City of Fort Worth, Texas, or any other Governmental
Authority, to the extent the same may be assigned to Landlord. Subject to
and without release of any obligation of Tenant to Landlord under this
Lease which by the terms of this Lease survives the termination or
expiration of this Lease, including without limitation Tenant's indemnity
obligations under Paragraphs 7 and 8 of this Lease, Landlord shall assume
any future obligations of Tenant in respect of any such assigned
Intangible Personal Property and economic development incentives in form
reasonably acceptable to Landlord and Tenant. Tenant shall execute such
assignments and/or bills of sale of the Intangible Personal Property and
economic development incentives as Landlord may reasonably
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request, provided the same do not impose any additional liability on
Tenant and are otherwise reasonably acceptable to Tenant. The obligations
of Landlord and Tenant under this Paragraph 34 shall survive the
expiration or earlier termination of this Lease.
35. REPRESENTATION AND WARRANTIES.
To induce Landlord to enter into this Lease, Tenant makes the
representations and warranties set forth in EXHIBIT 35 to this Lease.
36. EXHIBITS.
The Exhibits attached hereto are hereby incorporated by reference
into this Lease and made a part hereof.
37. QUIET ENJOYMENT.
So long as an Event of Default does not exist, Tenant shall be
entitled to peaceful and quiet enjoyment of the Premises, subject, however, to
the express terms and conditions of this Lease.
38. EASEMENTS.
(a) Landlord shall in good faith consider the execution and delivery
of, and shall use commercially reasonable efforts to cause any Mortgagee to join
in and subordinate the Mortgage to, any amendments to or replacements of
existing Easements (as defined in Subparagraph 10(b) above), but not the
creation of additional easements, reasonably required for or beneficial to
Tenant's use and operation of the Premises or the development and use of any
property adjacent to the Premises owned by Tenant, or any affiliate of Tenant
(the "ADJACENT PARCELS"), provided such amendment is in form and substance
reasonably satisfactory to Landlord and such Mortgagee and does not (i) reduce
the value of the Premises or the projected value of the Premises at the end of
the Term or (ii) adversely affect the current or future use and operation of the
buildings, structures, improvements and facilities located on or constituting a
part of the Premises. All costs associated with respect to the relocation of any
Easements including, but not limited to, the construction of improvements
associated therewith, shall be borne by Tenant or the applicable owner of the
Adjacent Parcel.
(b) Prior to or contemporaneous with the execution of this Lease,
Landlord and Tenant have entered into that certain Reciprocal Easement Agreement
with Covenants, Conditions and Restrictions (the "REA") binding upon the
Premises and the Adjacent Parcels and all present and future owners, occupants
and lienholders of such parcels. Landlord and Tenant covenant and agree that
each will comply with and/or enforce, as the case may require, all rights,
covenants, and agreements granted in or created by the REA. Tenant, as part of
Additional Rent hereunder, shall be responsible for and pay any costs and
expenses incurred or payable by the owner of the Premises with respect to any
obligations under the REA during the Term.
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39. RIGHT OF FIRST OFFER.
(a) Provided that no Event of Default has occurred and is continuing
and subject to the provisions of this Paragraph 39, Tenant shall have a right of
first offer as described in this Paragraph 39 with respect to any sale or
transfer of the Premises, or any interest therein, to any person or entity;
provided, however, said right of first offer shall not apply to any Excluded
Transaction as provided in Section 39(e) below. If Landlord intends to offer for
sale the Premises, or any interest therein, to any party (other than in
connection with an Excluded Transaction), Landlord shall deliver to Tenant a
written notice (constituting an offer) stating the sales price and all other
material terms for the sale of the Premises (or such interest) that Landlord
would accept (the "FIRST OFFER"). Tenant shall have thirty (30) days (the
"ACCEPTANCE PERIOD") from its receipt of the First Offer to accept, by written
notice to Landlord, the First Offer. Landlord may not revoke the First Offer
during the Acceptance Period. If Tenant accepts the First Offer for the
Premises, Tenant must enter into a purchase agreement with Landlord for the
purchase and sale of the Premises by the later of (i) the expiration of the
Acceptance Period or (ii) fifteen (15) days after Tenant has irrevocably
accepted the First Offer by written notice to Landlord as provided above. The
purchase agreement for the sale of the Premises shall provide for closing on the
terms set forth in the First Offer. Landlord and Tenant agree to negotiate any
purchase agreement in good faith. The failure of Tenant to accept the First
Offer by written notice to Landlord within the Acceptance Period as provided
above shall constitute rejection by Tenant of the First Offer.
(b) If Tenant rejects the First Offer or fails to accept the First
Offer prior to the expiration of the Acceptance Period, or if an Event of
Default occurs during the Acceptance Period, Landlord may, subject to the terms
hereof, offer the Premises (or interest therein) for sale to third parties at a
price not less than ninety-five percent (95%) of the price and on other economic
terms materially no more beneficial to the third party than those contained in
the First Offer; provided, however, that if Landlord desires to accept an offer
from a third party (the "OFFEREE") at a price that is less than ninety-five
percent (95%) of the price offered to Tenant (including in all cases debt to be
assumed) in the First Offer, then Landlord shall be required to re-offer the
Premises (or interest therein) to Tenant at such reduced price (the "REVISED
FIRST OFFER"), in which event Tenant shall either accept or reject the Revised
First Offer, by written notice to Landlord, within seven (7) days after the date
of its receipt of the Revised First Offer (with the failure of Tenant to accept
the Revised First Offer by written notice to Landlord within the such 7-day
period being deemed to be a rejection by Tenant of the Revised First Offer). If
Landlord desires to accept an offer from any Offeree for a price that is
ninety-five percent (95%) or more of the price offered to Tenant in the First
Offer (or a lower price if Tenant rejects any Revised First Offer), Landlord may
enter into a bona fide agreement to sell, assign or otherwise transfer the
Premises (or such interest therein) to the Offeree no later than two hundred
seventy (270) days after the end of the Acceptance Period and may close such
sale, assignment or other transfer no later than three hundred sixty-five (365)
days after the end of the Acceptance Period. Absent the execution and delivery
of such bona fide agreement to sell, assign or otherwise transfer within such
270-day period and closing of the sale, assignment or transfer within such
365-day period, Landlord shall be required to repeat the procedure set forth in
this Paragraph 39 if it still desires to sell the Premises.
(c) In the event that Landlord shall receive an unsolicited Bona
Fide Offer (as
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defined below) to purchase the Premises at any time and from time to time during
the Term of this Lease from any person or entity, Landlord shall so notify
Tenant together with a true and correct copy of said Bona Fide Offer. For
purposes hereof, a "BONA FIDE OFFER" shall be deemed to be one made in writing
by a person or entity in connection with a transaction that is not an Excluded
Transaction (as hereinafter defined) and which Landlord desires to accept
(subject to this Subparagraph 39(c)). In submitting the Bona Fide Offer to
Tenant, Landlord shall segregate the price and the terms of the offer for the
Premises from the price and other terms connected with any additional property
or properties that such person or entity is offering to purchase from Landlord.
Tenant may, at Tenant's option and within thirty (30) days after receipt of
Landlord's notice of said Bona Fide Offer and receipt of a copy thereof, agree
to purchase the Premises at the price and upon the terms and conditions as are
contained in said Bona Fide Offer, in which event, Landlord shall sell the
Premises to Tenant, and Tenant shall purchase the Premises from Landlord, upon
said terms and conditions and said price. If Tenant fails to respond to
Landlord's notice of said Bona Fide Offer within said thirty (30) day time
period, Tenant shall be deemed to have waived its right of first refusal
contained in this Subparagraph 39(c), but only as to the transaction
contemplated in the Bona Fide Offer. Notwithstanding the foregoing, the price
that Tenant shall pay for the Premises shall be reduced by an amount equal to
broker's fees or commissions that would have been payable by Landlord if the
Premises were sold pursuant to a Bona Fide Offer, except to the extent that
Landlord is otherwise obligated to pay such fees or commissions to an
unaffiliated third party upon the sale of the Premises to Tenant pursuant to the
provisions of this Subparagraph 39(c). Landlord shall provide Tenant evidence of
the amount of broker's fees or commissions payable in connection with any such
Bona Fide Offer.
(d) Landlord covenants that it shall not convey the Premises until
it has complied with the terms of this Paragraph 39; provided, however, that
after the initial conveyance by Landlord to any third party in connection with a
transaction that is not an Excluded Transaction in compliance with the
provisions of this Paragraph 39 (whether pursuant to the provisions of
Subparagraph 39(b) or (c)), the provisions of this Paragraph 39 shall be void
and of no further force and effect and shall no longer apply to any subsequent
transfer or sale of the Premises by the owner thereof unless any such initial
conveyance occurs on or before the third (3rd) anniversary of the date hereof,
in which event compliance by Landlord with the terms of this Paragraph 39 shall
be required for the immediately succeeding conveyance by Landlord to any third
party in connection with a transaction that is not an Excluded Transaction but
not in connection with any subsequent conveyance or transaction by Landlord
thereafter, and, after such immediately succeeding transaction, the provisions
of this Paragraph 39 shall be void and of no further force and effect and shall
no longer apply to any subsequent transfer or sale of the Premises by the owner
thereof. Upon request by Landlord, in connection with any such initial
conveyance or other transaction for which Tenant has or is deemed to have
rejected or waived its rights pursuant to the provisions of Subparagraph 39(b)
or (c) above, Tenant, within five (5) days after notice from Landlord, shall
execute and deliver an instrument, in recordable form and otherwise in form and
substance reasonably satisfactory to Landlord, evidencing such rejection or
waiver and confirming that Tenant has no rights whatsoever with respect to such
conveyance or other transaction, and in addition, if requested by Landlord,
Tenant shall execute and deliver an amendment to this Lease acknowledging that
the rights of Tenant in this Paragraph 39 are no longer in effect and deleting
this provisions of this Paragraph 39 from this Lease. Tenant may
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enforce this Paragraph 39, without limitation, by injunction, specific
performance or other equitable relief. The terms and conditions contained in
this Paragraph 39 shall be binding upon the heirs, successors and assigns of
Landlord and Tenant.
(e) Notwithstanding anything in this Paragraph 39 to the contrary,
the provisions of this Paragraph 39 shall not apply to, and Landlord shall have
no obligation to comply with the provisions of this Paragraph 39 in connection
with any of the following (each an "EXCLUDED TRANSACTION"): (i) any transfer or
sale of the Premises, or any interest therein, in conjunction with the joint
marketing or sale of the Premises with one or more other assets or properties of
Landlord or any Landlord Affiliate (as hereinafter defined in Subparagraph
39(f)) if the Premises and such other assets or properties together have a total
aggregate gross purchase price (without deduction for debt) in excess of an
amount equal to Five Hundred Million Dollars ($500,000,000.00), as increased on
each anniversary of the date of this Lease by 1.25%; (ii) any transfer,
assignment, issuance or sale of any partnership or other direct or indirect
beneficial ownership interest in Landlord (including in connection with the
admission of additional partners or other beneficial owners) so long as the Fund
(as hereinafter defined in Subparagraph 39(f)) maintains not less than a twenty
percent (20%) direct or indirect beneficial ownership interest in Landlord or
Landlord continues to be controlled by or is under common control with Kan Am
Xxxxx, acting for the benefit of the Fund; (iii) any transfer, assignment or
conveyance of all or any portion of the Premises to a partnership, limited
liability company or other entity controlled by or under common control with
Landlord or Kan Am Xxxxx (as hereinafter defined in Subparagraph 39(f)), acting
for the benefit the Fund, or in which Landlord or the Fund continues to maintain
not less than a twenty percent (20%) direct or indirect beneficial ownership
interest; (iv) any transaction involving an acquisition, disposition, merger,
"roll-up" consolidation, reorganization, recapitalization, restructuring, joint
venture, partnership, limited liability company, or any other material corporate
transaction involving the Fund and/or its assets, including, without limitation,
any transfer of all or any portion of the assets of the Fund to a public or
private market vehicle that intends to qualify as a real estate investment trust
or similar entity under German or United States law; (v) the purchase, sale,
redemption, transfer, assignment or other conveyance of all or any interest in
the Fund or in Kan Am Xxxxx, the sponsor of the Fund; (vi) any transaction
involving a sale, disposition, assignment, transfer, consolidation, merger,
reorganization, recapitalization or other restructuring of Kan Am Xxxxx, the
sponsor of the Fund, or any interest in Kan Am Xxxxx; (vii) any transaction
involving a change in the sponsorship or management of the Fund; and (viii) any
sale, transfer or conveyance of Landlord's interest in the Premises in
connection with the foreclosure of any Mortgage whether by judicial or
non-judicial sale, or any deed or assignment in lieu of foreclosure.
(f) As used in this Paragraph 39, the following terms shall have the
meanings ascribed thereto below:
"KAN AM XXXXX" means Kan Am Xxxxx Kapitalanlagegesellschaft
mbH, a German limited liability company and the sponsor and manager of the
Fund.
"FUND" means Kan Am grundinvest Fonds, a German open-end real
estate fund sponsored by Kan Am Xxxxx.
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"LANDLORD AFFILIATE" means any entity (i) that is controlled
by or under common control with Landlord or Kan Am Xxxxx, acting for the
benefit of the Fund, or (ii) which not less than twenty percent (20%)
direct or indirect beneficial ownership interest is owned by Landlord or
the Fund.
40. NAMING AND SIGNING RIGHTS.
Tenant shall have the sole and exclusive right, at any time and from
time to time, to select the name or names of the Premises and the Improvements,
and the sole and exclusive right to determine not to use any name in connection
with the Premises, as well as all rights in respect of signage for or in
connection with the Premises. Landlord shall not have or acquire any right or
interest with respect to any such name or names used at any time by Tenant, or
any trade name, trademark, service xxxx or other intellectual property of any
type of Tenant which are and shall remain the sole property of Tenant. Landlord
shall cooperate with Tenant to effectuate Tenant's sign rights hereunder, at no
cost to Tenant.
41. BROKERS.
Tenant has not dealt with anyone other than Eastdil Realty Company,
L.L.C. ("TENANT'S BROKER") in connection with this Lease. Tenant will pay a fee
to Tenant's Broker by separate agreement. Other than Tenant's Broker, Landlord
and Tenant do hereby hold and save each other harmless from any loss, cost,
damage or expense, including attorneys' fees due by virtue of any claim for a
brokerage commission claimed or arising as a consequence of this Lease. Each of
the parties hereto represents and warrants to the other that it has not caused
any other broker, agent, finder, or other party to be entitled to a fee or
commission by reason of this Lease except for Tenant's Broker.
42. FORCE MAJEURE.
Anything contained herein to the contrary notwithstanding, Landlord
and/or Tenant shall be excused for the period of delay in the performance of any
and all of their obligations under this Lease other than the obligation to pay
any monetary amounts as same shall fall due, and shall not be considered in
default when prevented from so performing by cause or causes beyond Landlord's
or Tenant's reasonable control, including, but not limited to, all labor
disputes, civil commotion, war, fire or other casualty, shortage of supplies and
materials, government regulation or through act of God.
43. EXCULPATORY CLAUSE.
Notwithstanding any provision of this Lease to the contrary, the
liability of Landlord under and with respect to this Lease shall be limited to
the interest of Landlord in the Premises, and any judgment in favor of Tenant or
any party claiming by, through or under Tenant against Landlord shall be
collectable only out of Landlord's interest in the Premises.
44. LETTER OF CREDIT.
(a) Except as hereafter provided in this Xxxxxxxxx 00, Xxxxxx shall
not be required to deposit with Landlord any security deposit in connection with
this Lease. Upon
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Tenant's execution of this Lease, Tenant shall, at Tenant's cost and expense,
deliver to Landlord (or if requested by Landlord, with any Mortgagee designated
by Landlord) an unconditional, clean, irrevocable letter of credit in the amount
of Five Million and No/100 Dollars ($5,000,000) (a "LETTER OF CREDIT") that (i)
names Landlord (or if requested by Landlord, any Mortgagee designated by
Landlord) as the beneficiary, (ii) is issued by a federally chartered bank or
trust company having at least $50 billion in assets or by another financial
institution acceptable to Landlord which accepts deposits, maintains accounts,
has an office in one or more of the contiguous forty-eight United States of
America which will negotiate a letter of credit, and whose deposits are insured
by the FDIC, (iii) has an expiry date of not less than one year from the date of
issuance, (iv) permits multiple or partial drawings and permits all drawings by
sight drafts only, (v) is fully transferable by Landlord without the payment of
any fees or charges by Landlord, (vi) contains an "evergreen provision"
providing that the Letter of Credit shall be deemed automatically renewed,
without amendment, for consecutive periods of one year each thereafter during
the remaining Term (and in no event shall the Letter of Credit expire prior to
the 45th day following the expiration of the Term) unless the issuing bank sends
a notice (the "NON-RENEWAL NOTICE") to Landlord by certified mail, return
receipt requested, not less than thirty (30) days prior to the then expiration
date of the Letter of Credit stating that the issuing bank has elected not to
renew the Letter of Credit and (vii) is issued in accordance with the most
recent version of Uniform Customs and Practice for Documentary Credits and is
otherwise in form and content reasonably satisfactory to Landlord. The Letter of
Credit shall be held by Landlord to ensure the performance of Tenant's covenants
and obligations under this Lease.
(b) If at any time during the Term of this Lease, either (i) the senior
unsecured long term credit rating of Tenant is downgraded by both Standard &
Poor's Company ("S&P") and Xxxxx'x Investors Service ("MOODY'S") to below
BBB-/Baa3 (S&P/Xxxxx'x), or (ii) only one of S&P and Xxxxx'x publishes a senior
unsecured long term credit rating for Tenant, such long term credit rating of
Tenant is downgraded below BBB-/Baa3 (S&P/Moody's), as the case may be, or (iii)
neither S&P nor Moody's publishes a senior unsecured long term credit rating for
Tenant, then at any time thereafter upon the occurrence of any Event of Default
by Tenant (and the expiration of any applicable notice and cure period),
Landlord may, without prejudice to any other remedy provided herein or by
applicable law and without further notice to Tenant, draw upon the Letter of
Credit and apply the proceeds thereof to the extent necessary to cure any
arrears of Rent or other payments due to Landlord as a result of such Event of
Default as provided herein, and in such event Tenant shall immediately deliver
to Landlord an endorsement of the issuer of the Letter of Credit reinstating and
increasing the credit for the portion thereof so used by Landlord, or an
additional Letter of Credit conforming to the requirements of this paragraph, in
an amount equal to the reduced portion of the original Letter of Credit so used
by Landlord. Tenant shall not encumber the Letter of Credit in any manner (and
Landlord shall not be bound by any purported encumbrance), nor shall Tenant's
obligation to reimburse the issuer of the Letter of Credit be secured by any
collateral, right of offset or otherwise constitute a secured obligation of
Tenant. Tenant shall notify Landlord within five (5) Business Days after any
change in the long term credit rating of Tenant by either S&P or Moody's. If
either Moody's or S&P changes its system or manner of designating or classifying
its senior unsecured long term credit ratings, the rating designation or
classification that most closely describes or resembles the relevant ratings
designation set forth in this Paragraph 44 shall be used for purposes hereof.
(c) If the issuing bank of any Letter of Credit sends a Non-Renewal Notice
and
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Tenant does not deliver to Landlord a replacement Letter of Credit conforming in
all respects to the requirements of this Paragraph 44 by the earlier of ten (10)
days after the issuing bank sends such Non-Renewal Notice or the date two (2)
Business Days prior to the expiry date of the Letter of Credit that is the
subject of the Non-Renewal Notice ("ACCELERATED RENT EVENT"), then Landlord
shall have the right to draw upon the Letter of Credit then held by Landlord;
provided, however, any such amount paid to Landlord by the issuer of the Letter
of Credit shall not exceed the sum of (A) three (3) months of Basic Rent for the
immediately subsequent three (3) month period, plus (B) three (3) months of
Taxes, premiums for Required Insurance, maintenance costs and other recurring
items of Additional Rent, as reasonably estimated by Landlord for the
immediately subsequent three (3) month period (collectively, the "ACCELERATED
RENT"). If the amount paid to Landlord by the issuer of the Letter of Credit is
less than the amount necessary to fully fund the Accelerated Rent to the
required balance, then Tenant shall, within five (5) business days after the
Accelerated Rent Event, deposit with Landlord a cash sum necessary to fully fund
the Accelerated Rent to the required balance. Landlord shall have no obligation
to invest the Accelerated Rent and Tenant will not receive any benefit with
respect to any interest or other investment income associated therewith. During
the period of time that an Accelerated Rent Event continues, Tenant shall
receive a credit against monthly payments of Basic Rent equal to the quotient of
the Accelerated Rent divided by the number of months remaining in the Term when
the Accelerated Rent Event occurs. In the event that a replacement Letter of
Credit which complies with the terms and conditions of this Paragraph 44 is
provided to Landlord by Tenant, Tenant shall receive a credit against subsequent
monthly payments of Basic Rent in the amount of the Basic Rent, on a dollar per
dollar basis, until such time as the balance of the Accelerated Rent is fully
expended; provided, however, if an Accelerated Rent Event subsequently occurs,
Landlord shall have the right to draw upon the replacement Letter of Credit then
held by Landlord in an amount necessary to restore the required balance of
Accelerated Rent and, if the proceeds of the replacement Letter of Credit then
held by Landlord are not enough to restore the required balance of the
Accelerated Rent, then Tenant shall, within five (5) Business Days after the
occurrence of such an Accelerated Rent Event, pay to Landlord an amount
necessary to restore the Accelerated Rent to the required balance. Upon the
occurrence of any Event of Default by Tenant (and the expiration of any
applicable notice and cure period), Landlord may, without prejudice to any other
remedy provided herein or by applicable law and without further notice to
Tenant, apply the Accelerated Rent to the extent necessary to cure any arrears
of Rent or other payments due to Landlord as a result of such Event of Default
as provided herein, and in such event Tenant shall deposit with Landlord a cash
sum in the amount of the Accelerated Rent so expended by Landlord. Any balance
of the Accelerated Rent remaining upon the expiration or termination of this
Lease shall be promptly refunded to Tenant provided all of Tenant's obligations
under this Lease have been fulfilled.
(d) Upon any transfer or assignment of this Lease by Landlord (including
to any Mortgagee as security), Landlord shall have the right to transfer or
assign the Letter of Credit or the Accelerated Rent to the transferee or
assignee of the Lease, and in the event of such transfer and assignment, Tenant
shall look solely to such transferee or assignee for the return of the Letter of
Credit or the Accelerate Rent provided that such transferee or assignee
expressly assumes the obligations of Landlord under this Paragraph 44 arising
from and after the date of the transfer or assignment. Tenant shall, within ten
(10) days after request by Landlord, execute such further instruments or
assurances as Landlord may reasonably deem necessary to evidence or confirm
-40-
Landlord's transfer or assignment of the Letter of Credit or the Accelerated
Rent to such transferee or mortgagee, including (without limitation) an
endorsement to or a replacement of any then existing Letter of Credit naming the
transferee or assignee as the beneficiary thereof and otherwise in conformity
with the provisions of this Paragraph 44.
45. WAIVER OF LANDLORD LIENS. Landlord waives all constitutional,
statutory and contractual landlords' liens against any of Tenant's personal
property located at the Premises.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK.]
-41-
IN WITNESS WHEREOF, the parties hereto have executed this Lease as
of the day and year first above set forth.
LANDLORD:
________________________________
By: ____________________________
By:_________________________
Name:_______________________
Its:________________________
TENANT:
RADIOSHACK CORPORATION, a
Delaware corporation
By: ____________________________
By:_________________________
Name:_______________________
Its:________________________
-42-
EXHIBIT 1.1
LEGAL DESCRIPTION
EXHIBIT 5
BASIC RENT
INTERIM TERM:
Interim
Period
Period Basic Rent
------- ----------
Interim $1,174,889*
PRIMARY TERM:
Annual Basic Monthly Basic
Period Rent Rent
------- ------------ -------------
Year 1 $ 14,098,673 $ 1,174,889
Year 2 $ 14,274,907 $ 1,189,576
Year 3 $ 14,453,343 $ 1,204,445
Year 4 $ 14,634,010 $ 1,219,501
Year 5 $ 14,816,935 $ 1,234,745
Year 6 $ 15,002,147 $ 1,250,179
Year 7 $ 15,189,674 $ 1,265,806
Year 8 $ 15,379,545 $ 1,281,629
Year 9 $ 15,571,789 $ 1,297,649
Year 10 $ 15,766,436 $ 1,313,870
Year 11 $ 15,963,517 $ 1,330,293
Year 12 $ 16,163,061 $ 1,346,922
Year 13 $ 16,365,099 $ 1,363,758
Year 14 $ 16,569,663 $ 1,380,805
Year 15 $ 16,776,783 $ 1,398,065
Year 16 $ 16,986,493 $ 1,415,541
Year 17 $ 17,198,824 $ 1,433,235
Year 18 $ 17,413,810 $ 1,451,151
Year 19 $ 17,631,482 $ 1,469,290
Year 20 $ 17,851,876 $ 1,487,656
EXTENDED TERM 1:
----------
* Subject to proration on a daily basis as of the commencement date of the Lease
Annual Basic Monthly Basic
Period Rent Rent
------- ------------ -------------
Year 1 $ 18,744,470 $ 1,562,039
Year 2 $ 18,978,775 $ 1,581,565
Year 3 $ 19,216,010 $ 1,601,334
Year 4 $ 19,456,210 $ 1,621,351
Year 5 $ 19,699,413 $ 1,641,618
EXTENDED TERM 2:
Annual Basic Monthly Basic
Period Rent Rent
------- ------------ -------------
Year 1 $ 20,684,384 $ 1,723,699
Year 2 $ 20,942,938 $ 1,745,245
Year 3 $ 21,204,725 $ 1,767,060
Year 4 $ 21,469,784 $ 1,789,149
Year 5 $ 21,738,156 $ 1,811,513
EXTENDED TERM 3:
Annual Basic
Period Rent
-------- ------------------------------------------------------------
Year 1-5 For each year during Extended Term 3, the greater of (x)
Fair Market Basic Rent (as defined and determined below) per
annum for such Extended Term 3 or (y) $21,738,156 per annum.
EXTENDED TERM 4:
Annual Basic
Period Rent
-------- --------------------------------------------------------------
Year 1-5 For each year during Extended Term 4, the greater of (x)
Fair Market Basic Rent (as defined and determined below) per
annum for such Extended Term 4 or (y) the Basic Rent per annum
payable during last year of Extended Term 3.
The following provisions shall govern the determination of the Fair Market Basic
Rent during any applicable Extended Term:
(a) The term "FAIR MARKET BASIC RENT" as used herein shall mean the annual
Basic Rent (projected to the date of the commencement of, and payable throughout
the applicable Extended Term, without any periodic escalation) that Tenant would
expect to pay and Landlord would expect to receive under triple net leases
similar to this Lease for campus corporate headquarters of comparable size and
quality, and on other terms and conditions comparable to
-2-
this Lease, constituting premises similar to the Premises in comparable real
estate markets as the market in which the Premises are located and having
tenants with credit status comparable to Tenant's then credit status, adjusted
to fairly reflect the square footage of the Buildings and the size and quality
of the Improvements of the Premises compared to comparable premises.
(b) Within thirty (30) days of Landlord's receipt of Tenant's Extension
Notice, Landlord shall deliver to Tenant a proposal containing Landlord's good
faith determination of the Fair Market Basic Rent for the Premises for the
applicable Extended Term. Within fifteen (15) days after Tenant's receipt of
Landlord's determination of the Fair Market Basic Rent, Tenant shall notify
Landlord, in writing, whether Tenant accepts or rejects the Fair Market Basic
Rent determined by Landlord. The failure of Tenant to so notify Landlord of such
acceptance or rejection shall be deemed an acceptance by Tenant of Landlord's
determination of the Fair Market Basic Rent. If Tenant rejects the Fair Market
Basic Rent as determined by Landlord, Tenant shall specify in its rejection
notice Tenant's good faith determination of the Fair Market Basic Rent for the
applicable Extended Term, together with its selection of a real estate
appraiser, who shall act on Tenant's behalf in determining the Fair Market Basic
Rent if Landlord and Tenant cannot agree upon the Fair Market Basic Rent within
the ensuing thirty (30) day period. For thirty (30) days after Landlord's
receipt of Tenant's determination of the Fair Market Basic Rent, Landlord and
Tenant shall negotiate in good faith (neither party acting arbitrarily or
capriciously) in an effort to reach agreement as to such Fair Market Basic Rent.
(c) If at the end of such thirty (30) day negotiation period, Landlord and
Tenant have not agreed on the amount of the Fair Market Basic Rent, Landlord,
within fifteen (15) days after the end of such thirty (30) day period, shall
designate, by written notice to Tenant, a real estate appraiser who shall act on
Landlord's behalf in the determination of the Fair Market Basic Rent. Within
thirty (30) days after the selection of Landlord's appraiser, the two appraisers
thus designated by Landlord and Tenant shall render a joint written
determination of the amount Fair Market Basic Rent, which if agreed upon by the
two appraisers shall be the Fair Market Basic Rent hereunder. If the two
appraisers are unable to agree upon a joint written determination within such
thirty (30) day period, each appraiser shall render his or her own written
determination and the two appraisers shall select a third appraiser within such
thirty (30) day period. If the two appraisers are unable to agree on the third
appraiser within such thirty (30) day period, then within five (5) days
thereafter, either Landlord or Tenant shall apply to the District Vice President
or comparable executive officer of the Dallas, Texas office of the American
Arbitration Association for the selection of a third appraiser, which third
appraiser shall be appointed within fifteen (15) days after such application.
All appraisers selected in accordance herewith as Landlord's appraisers,
Tenant's appraiser or such third appraiser, as the case may be, shall be
independent third party appraisers that are unaffiliated with either Landlord or
Tenant or each other and have at least ten (10) years prior experience in the
metropolitan Dallas/Ft. Worth commercial office leasing market and shall be
members of one or more of the National Association of Industrial and Office
Properties, the American Institute of Real Estate Appraisers or similar
professional organizations. Landlord shall bear the fees and expenses of its
appraiser; Tenant shall bear the fees and expenses of its appraiser; and
Landlord and Tenant shall share equally the fees and expenses of the third
appraiser, if any.
-3-
(d) Within thirty (30) days after the selection of the third appraiser, a
majority of the appraisers shall agree upon the Fair Market Basic Rent. If a
majority of the appraisers are unable to agree within the stipulated time, then
each appraiser shall render his separate appraisal within such time, and the
three appraisals shall be averaged in order to establish the Fair Market Basic
Rent; provided, however, if either the low appraisal or the high appraisal or
both are more than ten percent (10%) lower or higher than the middle appraisal
such lower or higher appraisal or appraisals shall be disregarded. If only one
appraisal is disregarded, the remaining two appraisals shall be averaged in
order to establish such Fair Market Basic Rent. If both the low appraisal and
the high appraisal are disregarded, the middle appraisal shall establish such
Fair Market Basic Rent.
(e) If the Fair Market Basic Rent has not been determined as provided in
prior to the commencement of the applicable Extended Term, Tenant shall pay the
then current Basic Rent for such prior Extended Term until such time as the Fair
Market Basic Rent shall have been established for the current Extended Term,
provided that such interim rental payments shall be adjusted by the parties, by
applicable cash payments from one party to another, to correct any underpayment
or overpayment within ten (10) days of the date on which the Fair Market Basic
Rent shall have been determined.
-4-
EXHIBIT 9
PERMITTED EXCEPTIONS
The following items are the "PERMITTED EXCEPTIONS":
1. Real Estate taxes that are not yet due or payable.
[Other Exceptions to be added from Title Policy.]
EXHIBIT 23
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT made as of
the ____ day of ______________, 20__, by and between ________________________,
a(n)______________________ ("MORTGAGEE"), __________________________, a(n)
__________________ ("LANDLORD") and RADIOSHACK CORPORATION, a Delaware
corporation ("TENANT");
R E C I T A L S
A. Mortgagee is the holder of a Note in the original principal amount of
$_________________________, secured by a Mortgage or Deed of Trust ("MORTGAGE")
dated __________________, 20__, recorded on __________________, 20__, in Volume
_____, Page _____, in the Real Property Records of Tarrant County, Texas,
covering the property legally described on Exhibit "A" attached hereto and made
a part hereof.
B. By Lease dated ___________________, 2005, ("LEASE"), recorded by
Memorandum of Lease of even date, on ___________________, 2005, in Volume _____,
Page _____, in the Real Property Records of Tarrant County, Texas, Landlord, as
landlord, leased to Tenant, as tenant, that certain real property legally
described on Exhibit "A" ("LEASED PREMISES").
C. Mortgagee, Tenant and Landlord desire to confirm their understanding
with respect to the Lease and the Mortgage.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises contained herein and other good and valuable consideration, the
parties agree as follows:
1. Subject to the covenants, terms and conditions of this Agreement, the
lien of the Lease is hereby subordinated to the lien of the Mortgage. If there
shall be a conflict between the terms of the Lease and the terms of the
Mortgage, the terms of the Lease shall prevail.
2. In the event Mortgagee or any other party (collectively "SUCCESSOR
LANDLORD") acquires title or right of possession of the Leased Premises under
the Mortgage through foreclosure, or otherwise, the Lease shall remain in full
force and effect and Tenant shall continue occupancy of the Leased Premises in
accordance with the terms and provisions of the Lease. In such event, during the
period that it holds title to or possession of the Leased Premises, Successor
Landlord shall be in all respects bound by the Lease as Landlord and by all of
Tenant's rights thereunder. Successor Landlord's remedies pursuant to the Lease
will be in full force and
effect once Successor Landlord succeeds to the interest of Landlord under the
Lease and once Successor Landlord is bound by all of the terms and conditions of
the Lease.
3. So long as Successor Landlord shall be bound by the terms and
conditions of the Lease, Tenant shall attorn to Successor Landlord when
Successor Landlord is in possession of the Leased Premises, whether such
possession is pursuant to Mortgagee's rights under the Mortgage (which such
attornment shall be effective and self operative without the execution of any
further instrument on the part of any of the parties hereto), or otherwise, and
will continue occupancy of the Leased Premises under the same terms and
conditions of the Lease.
4. Mortgagee shall not include Tenant in any foreclosure proceeding
involving the Leased Premises, unless required by applicable state law for
Mortgagee to accomplish the foreclosure and then not to interfere with or
diminish Tenant's rights under the Lease or disturb Tenant's possession.
5. In the event that Successor Landlord succeeds to the interest of
Landlord under the Lease, Successor Landlord shall not be:
(a) Liable for any act or omission of any prior landlord (including
Landlord) or subject to any offsets or defenses which Tenant might have against
any prior landlord (including Landlord), except for any defaults or remedies of
which Tenant has notified Mortgagee prior to Successor Landlord becoming bound
by the Lease in accordance with paragraph 2. Successor Landlord will not be held
liable for any consequential damages for defaults of any prior Landlord; or
(b) Bound by any payment of any rent or additional rent which Tenant might
have paid for more than the current month to any prior landlord (including
Landlord); or
(c) Bound by any amendment or modification of the Lease made hereafter
without Mortgagee's written consent.
6. Tenant hereby agrees that upon receipt of written notice from Mortgagee
of a default by Landlord under the Mortgage, all checks for rent and other sums
payable by Tenant under the Lease to Landlord shall, from the date of Tenant's
receipt of such written notice, be delivered to and drawn to the exclusive order
of Mortgagee until Mortgagee or a court of competent jurisdiction shall direct
otherwise. Such an assignment of rent shall not relieve Landlord of any of its
obligations under the Lease and shall not modify or diminish any rights granted
to Tenant by the Lease or this Agreement. Landlord hereby consents and agrees to
the provisions of this paragraph and hereby authorizes Tenant to direct all
rental and other payments under the Lease as provided by this paragraph.
Landlord hereby relieves Tenant from any liability by reason of Tenant's payment
of any sums under the Lease as required by this paragraph. Tenant shall have no
obligation to verify the existence of any such default stated in the notice from
Mortgagee under this paragraph.
7. In the event Successor Landlord acquires title or right of possession
of the Leased Premises, Tenant acknowledges and agrees that the liability of
such Successor Landlord under
-2-
the Lease shall be limited to its interest in the property described on Exhibit
"A" and the rents, income and profits therefrom. Notwithstanding anything herein
to the contrary, Tenant shall have all of its equitable remedies against
Successor Landlord. Nothing contained herein shall otherwise limit Tenant's
rights or remedies as provided in the Lease.
8. All notices under this Agreement shall be deemed to have been duly
given if made in writing and sent by United States certified or registered mail,
postage prepaid, or by overnight delivery service providing proof of receipt,
and addressed as follows:
If to Mortgagee: ___________________________
___________________________
___________________________
___________________________
If to Tenant: RadioShack Corporation
000 XxxxxXxxxx Xxxxxx, XX XX0-000
Xxxx Xxxxx, Xxxxx 00000
Attn.: Vice President -- Corporate Real Estate
With a copy to: RadioShack Corporation
000 XxxxxXxxxx Xxxxxx, XX CF4-101
Xxxx Xxxxx, Xxxxx 00000
Attn.: General Counsel
If to Landlord: ___________________________
___________________________
___________________________
___________________________
provided that each party by like notice may designate any future or different
addresses to which subsequent notices shall be sent. Notices shall be deemed
given upon receipt or upon refusal to accept delivery.
9. Tenant agrees that the right of first refusal shall not apply to
Successor Landlord through a foreclosure, deed-in-lieu of foreclosure or any
other enforcement action under the Mortgage; provided, however, such right of
first refusal shall apply to subsequent purchasers of the Leased Premises. It is
the express intention of Landlord and Tenant that the acquisition by either
party of the right, title, interest and estate of the other party in and to the
Leased Premises shall not result in termination or cancellation of the Lease by
operation of the principle of merger of estates or otherwise, notwithstanding
any applicable law to the contrary.
10. To facilitate execution, this Agreement may be executed in as many
counterparts as may be convenient or required. It shall not be necessary that
the signature and acknowledgment of, or on behalf of, each party, or that the
signature and acknowledgment of all persons required to bind any party, appear
on each counterpart. All counterparts shall
-3-
collectively constitute a single instrument. It shall not be necessary in making
proof of this Agreement to produce or account for more than a single counterpart
containing the respective signatures and acknowledgment of, or on behalf of,
each of the parties hereto. Any signature and acknowledgment page to any
counterpart may be detached from such counterpart without impairing the legal
effect of the signatures and acknowledgments thereon and thereafter attached to
another counterpart identical thereto except having attached to it additional
signature and acknowledgment pages.
11. This Agreement shall also bind and benefit the heirs, legal
representatives, successors and assigns of the respective parties hereto, and
all covenants, conditions and agreements herein contained shall be construed as
running with the land.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
(SIGNATURE PAGE TO FOLLOW)
-4-
RADIOSHACK CORPORATION, MORTGAGEE (Enter name here)
a Delaware corporation
By:___________________________ By:_____________________________
Name:_________________________ Name:___________________________
Its:__________________________ Its:____________________________
LANDLORD (Enter name here)
By:___________________________
Name:_________________________
Its:__________________________
ACKNOWLEDGEMENT
STATE OF TEXAS Section
COUNTY OF TARRANT Section
This instrument was acknowledged before me on the ___ day of
________________, 20___, by ________________, _____________________ of
RadioShack Corporation, a Delaware corporation, on behalf of said corporation.
______________________________
Notary Public, State of Texas
[SEAL]
-0-
XXXXXXXXXXXXXXX
XXXXX OF ______________ Section
COUNTY OF _____________ Section
This instrument was acknowledged before me on the ___ day of ____________,
20___, by ________________, _____________________ of ________________________,
a(n) ___________________, on behalf of said _______________________.
_________________________________________
Notary Public, State of _________________
[SEAL]
ACKNOWLEDGEMENT
STATE OF ______________ Section
COUNTY OF _____________ Section
This instrument was acknowledged before me on the ___ day of ____________,
20___, by ________________, _____________________ of ________________________,
a(n) ___________________, on behalf of said _______________________.
_________________________________________
Notary Public, State of _________________
[SEAL]
AFTER RECORDING RETURN TO:
RadioShack Corporation
000 XxxxxXxxxx Xxxxxx, XX CF4-101
Xxxx Xxxxx, Xxxxx 00000
Attn.: General Counsel
-6-
EXHIBIT "A"
LEGAL DESCRIPTION
-7-
EXHIBIT 00-0
XXXXXXXX CERTIFICATE
The undersigned, RadioShack Corporation (the "TENANT"), a Delaware
corporation, is the tenant under a lease (the "LEASE") dated ___________,
________________, between the Tenant and ______________________, as the landlord
(the "LANDLORD"), of certain real property located in the County of Tarrant in
the State of Texas commonly known as 000 XxxxxXxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx
00000 legally described on attached EXHIBIT A (the "PREMISES"). With the
understanding that _____________________ ____________________, ("LENDER") a(n)
___________ corporation, will rely upon the covenants, representations and
statements made herein in making a mortgage loan of $_________________, more or
less (the "LOAN") to Landlord evidenced by [A PROMISSORY NOTE] (the "NOTE") in
the aggregate principal amount of the Loan, executed by Landlord in favor of
Lender and secured by a [MORTGAGE AND SECURITY AGREEMENT] (the "DEED OF TRUST")
creating a first lien on the Premises and Landlord's interest in the Lease and
by an [ASSIGNMENT OF LEASES AND RENTS] (the "ASSIGNMENT OF LEASES AND RENTS")
creating a direct and absolute assignment to Lender of all of Landlord's rights,
title and interest as Landlord in and to the Lease and all rent due thereunder,
will rely upon the covenants, representations and warranties made herein in
purchasing the Premises and accepting an assignment of Landlord's interest in
the Lease [OR PURCHASING OWNERSHIP INTERESTS IN LANDLORD], Tenant hereby
covenants, represents and warrants as follows (terms used herein which are not
otherwise defined herein shall have the meaning ascribed to them in the Lease):
1. The Tenant is the owner and holder of all rights, title and
interest in the leasehold estate created by the Lease and has no actual
knowledge of any prior assignment of the Landlord's interest in the Lease,
except as described above in favor of Lender.
2. The construction of the Improvements has been completed. The
Improvements comply with all Legal Requirements in all material respects.
3. Landlord does not have any unsatisfied obligations to the Tenant
arising out of or incurred in connection with the construction of the
Improvements on the Premises, the sale of the Premises to the Landlord or the
leasing of the Premises to the Tenant, and no defense or right of termination,
offset, abatement or counterclaim exists with respect to any rents or other sums
payable or to become payable by the Tenant under the Lease.
4. All permits and certificates of occupancy, if any, required for
the operation of the Premises by the Tenant have been obtained, and the Premises
may be used for the purposes contemplated by the Tenant in accordance with
applicable Legal Requirements.
5. Attached hereto is a true and correct copy of the Lease and the
following amendments thereto: [IF NONE, STATE "NONE"] The Lease is in full force
and effect and has not been modified, supplemented, canceled or amended in any
respect except as stated above.
-8-
6. The term of the Lease commenced on _________________,
________________, and continues through __________________ unless extended as
provided in the Lease. Tenant has commenced paying rent without offset or
abatement. The Tenant is obligated to pay rent in monthly installments in an
amount not less than $______________, which rent obligation is continuing and is
not past due or delinquent in any respect. No installment of rent has been or
will be prepaid more than ten (10) days before it comes due.
7. To the best of Tenant's knowledge after reasonable inquiry, no
event has occurred or is continuing which would constitute a default by either
the Tenant or the Landlord under the Lease or would constitute such a default
but for the requirement that notice be given or that a period of time elapse or
both. The representations and warranties contained in EXHIBIT 35 to the Lease
are true and correct as of the date hereof. No offset exists with respect to any
rents or other sums payable or to become payable by the Tenant under the Lease.
8. Beginning with the payment of Basic Rent due _______, the Tenant
agrees to pay to Lender all rentals and any other sums due Landlord whatsoever
under the Lease without offset, counterclaim, deduction, defense, abatement,
deferment or diminution for any reason, on or before such date such payments are
due to the Landlord under the Lease and Tenant, will not, for any reason
whatsoever, seek to recover from Lender any monies paid to the Lender by virtue
of the Lease.
9. Beginning with the payment of Basic Rent due ______________,
Tenant hereby acknowledges and agrees to comply with Landlord's authorization
and direction to Tenant to make all payments due under the Lease directly to
Lender until otherwise advised in writing by Lender by wire transfer of
immediately available funds to _______________ _____________________________,
for credit to ____________________________ ____________, Account No. _________
Re: Loan No. __________, with reference to the Landlord.
10. Tenant agrees to deliver to Lender duplicate original copies of
all notices, offers, undertakings, demands, statements, financial reports,
documents or other communications which it delivers to Landlord pursuant to the
Lease.
11. Without the prior written consent of the Lender, Tenant agrees
not to enter into any agreement subordinating, terminating, amending or
modifying the Lease, so long as the Loan has not been repaid in full. Any such
attempted subordination, modification, amendment or termination shall be void.
In the event that the Lease shall be amended, modified or supplemented with the
Lender's prior written consent, the Lease as so amended, modified or
supplemented shall continue to be subject to the provisions of this Certificate.
12. This Certificate may not be modified orally or in any manner
other than by an agreement, in writing, signed by the parties hereto and their
respective successors in interest. This Certificate shall inure to the benefit
of and be binding upon the parties hereto, and their respective successors and
assigns, and to no other person or entities. The representations, warranties and
agreements made herein shall survive the closing of the Loan between the Lender
and Landlord.
-9-
13. Tenant agrees that it shall, pursuant to Paragraph 23 of the
Lease and any Subordination, Non-Disturbance and Attornment Agreement between
Tenant and Lender, attorn to and recognize Lender as the Landlord under the
Lease, should Lender become the Landlord under the Lease.
14. In the event title to the Premises, or any part thereof, is
acquired by or becomes vested in the Tenant, whether pursuant to the Lease or
otherwise, there shall be no merger of estates and the Lease shall not terminate
or be affected thereby unless and until the Mortgage has been released.
15. For so long as the Loan is outstanding, Lender or its designee
may upon reasonable notice (and, at the option of Tenant, accompanied by a
representative of Tenant) enter upon the Premises during regular business hours
to visit or inspect the Premises applicable to the Premises or the Lease at such
reasonable times as Lender or its designee may request.
16. The execution, delivery and performance of the Lease or this
Certificate by Tenant does not violate any Legal Requirement or result in any
default in the terms of any agreement or instrument to which Tenant is a party
or create any lien, charge or encumbrance upon Tenant's property.
17. The Lease and this Certificate have been duly authorized,
executed and delivered by Tenant and constitute legal, valid and binding
instruments enforceable against Tenant in accordance with their respective
terms, except that such other terms may be limited by bankruptcy, insolvency or
similar laws affecting creditor's rights generally and general principles of
equity.
18. The provisions of the Lease were negotiated at arms length and
no consent, authorization or approval of any government authority is necessary
in connection with Tenant's performance of the Lease.
19. As between Landlord and Tenant, the execution and delivery of
this Certificate shall in no way expand the rights or obligations of the
Landlord and Tenant arising under the Lease.
20. This Certificate and the agreements, representations and
warranties made herein shall be governed by the laws of Texas.
IN WITNESS WHEREOF, this Certificate has been duly executed and
delivered by the undersigned as of _____________, ________________.
-10-
TENANT:
RadioShack Corporation
By______________________________
Name____________________________
Its_____________________________
-11-
EXHIBIT 00-0
XXXXXXXX CERTIFICATE
The undersigned, RadioShack Corporation, ("TENANT") is the tenant
under a lease (the "LEASE") dated ___________, ________________ between Tenant
and _____________________, a ___________________________, as the landlord
("LANDLORD") of certain real property located in the County of Tarrant in the
State of Texas as described on attached EXHIBIT A (the "PREMISES"). With the
understanding that __________________ ("PURCHASER") will rely upon the
representations and warranties made herein in purchasing the Premises and
accepting an assignment of Landlord 's interest in the Lease [OR PURCHASING THE
OWNERSHIP INTERESTS IN LANDLORD], Tenant hereby represents and warrants as
follows (terms used herein without definition shall have the meaning ascribed to
them in the Lease):
1. The Tenant is the owner and holder of all rights, title and
interest in the leasehold estate created by the Lease and has no actual
knowledge of any prior assignment of the Landlord's interest in the Lease except
the assignment by Landlord pursuant to [REFERENCE MORTGAGE AND/OR ASSIGNMENT OF
LEASES AND RENTS].
2. The construction of the Improvements has been completed. The
Improvements Comply with all Legal Requirements in all material respects.
3. Landlord does not have any unsatisfied obligations to the Tenant
arising out of or incurred in connection with the construction of the
Improvements on the Premises, the sale of the Premises to the Landlord or the
leasing of the Premises to the Tenant, and no defense or right of termination,
offset, abatement or counterclaim exists with respect to any rents or other sums
payable or to become payable by the Tenant under the Lease.
4. All permits and certificates of occupancy, if any, required for
the operation of the Premises by the Tenant have been obtained, and the Premises
may be used for the purposes contemplated by the Tenant in accordance with
applicable Legal Requirements.
5. Attached hereto is a true and correct copy of the Lease and the
following amendments thereto: [IF NONE, STATE "NONE"] The Lease is in full force
and effect and has not been modified, supplemented, canceled or amended in any
respect except as stated above.
6. The term of the Lease commenced on ________________________ and
continues through __________________ unless extended as provided in the Lease.
Tenant has commenced paying rent without offset or abatement. The Tenant is
obligated to pay rent in monthly installments in an amount not less than
$______________, which rent obligation is continuing and is not past due or
delinquent in any respect. No installment of rent has been or will be prepaid
more than ten (10) days before it comes due.
7. To the best of Tenant's knowledge after reasonable inquiry, no
event has occurred or is continuing which would constitute a default by either
the Tenant or the Landlord under the Lease or would constitute such a default
but for the requirement that notice be given or that a period of time elapse or
both. The representations and warranties contained in EXHIBIT 35 to the Lease
are true and correct as of the date hereof.
8. The execution, delivery and performance of the Lease or this
Certificate by Tenant does not violate any Legal Requirement or result in any
default in the terms of any agreement or instrument to which Tenant is a party
or create any lien, charge or encumbrance upon Tenant's property.
9. The Lease and this Certificate have been duly authorized,
executed and delivered by Tenant and constitute legal, valid and binding
instruments enforceable against Tenant in accordance with their respective
terms, except that such other terms may be limited by bankruptcy, insolvency or
similar laws affecting creditor's rights generally incurred.
10. The provisions of the Lease were negotiated at arms length and
no consent, authorization or approval of any government authority is necessary
in connection with Tenant's performance of the Lease.
11. This Certificate and the representations and warranties made
herein shall be governed by the laws of Texas.
12. Tenant has been authorized and directed to make all payments due
under the Lease directly to the first Mortgagee until otherwise advised in
writing by said first Mortgagee, at _______________________ for credit to
___________________________ Re: Loan No. _______________.
IN WITNESS WHEREOF, this Certificate has been duly executed and
delivered by the undersigned as of _____________, _____.
TENANT:
RadioShack Corporation
By______________________________
Name____________________________
Its_____________________________
EXHIBIT 30
Form of Memorandum of Lease
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE, made as of the ____ day of __________, 2005,
between __________________________ ("LANDLORD") having an address at
____________________, and RadioShack Corporation ("TENANT"), a Delaware
corporation, having an address at 000 XxxxxXxxxx Xxxxxx, XX _____, Xxxx Xxxxx,
Xxxxx 00000.
1. Lease. Landlord has demised and let to Tenant pursuant to the terms and
conditions of a Lease dated as of the date hereof (the "LEASE"), the terms
and conditions of which are incorporated herein as though set forth in
full, certain real property located in the City of Fort Worth, County of
Tarrant, State of Texas, described in Exhibit "A" attached hereto together
with all of the improvements located thereon (the "LEASED PREMISES").
2. Original Term. Under the terms of the Lease, Tenant may have and hold the
Leased Premises, together with the tenements, hereditaments, appurtenances
and easements thereunto belonging, at the rental and upon the terms and
conditions therein stated, for an original term (the "TERM") commencing as
of _______________ and ending on __________, 20__.
3. Extended Term(s); Etc. Under the terms of the Lease, the Term may be
extended by Tenant for four (4) separate and additional periods of five
(5) years each after the expiration of the then Term (each such additional
5-year period is hereinafter referred to as an "EXTENDED TERM"). Each
Extended Term shall be subject to all the terms and conditions of the
Lease as if the Term originally included the Extended Term (except that
Tenant shall not have the right to any additional Extended Terms beyond
such four (4) additional periods). The Lease also contains a right of
first refusal relating to certain sales of the Property by Landlord.
4. Purpose and Intention. This Memorandum of Lease is executed for the
purpose of recordation in order to give notice of the Lease and is not
intended, and shall not be construed, to define, limit or modify the
Lease. The leasehold estate created and conveyed hereby with respect to
the Leased Premises is intended to be one and the same estate as was
created with respect to the Leased Premises by the Lease and is further
intended to be governed in all respects solely by the Lease and all of the
provisions thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of
Lease as of the day and year first above written.
LANDLORD:
_______________________________,
a ______________________________
By: ____________________________
Its: _______________________
TENANT:
Radioshack Corporation, a
Delaware corporation
By: ____________________________
Its: _______________________
ACKNOWLEDGEMENT
STATE OF TEXAS Section
COUNTY OF TARRANT Section
This instrument was acknowledged before me on the ___ day of ____________,
2005, by ________________, _____________________ of ________________________,
a(n) ___________________.
_____________________________
Notary Public, State of Texas
[SEAL]
ACKNOWLEDGEMENT
STATE OF TEXAS Section
COUNTY OF TARRANT Section
This instrument was acknowledged before me on the ___ day of ____________,
2005, by ________________, _____________________ of RadioShack Corporation, a
Delaware corporation, on behalf of said corporation.
_____________________________
Notary Public, State of Texas
[SEAL]
EXHIBIT 35
TENANT REPRESENTATIONS AND WARRANTIES
Tenant represents and warrants to Landlord that the following are true and
correct as of the date hereof:
(a) Tenant is a corporation duly organized, validly existing and in good
standing in the State of Delaware. Tenant has the corporate power and authority
to conduct its business as now conducted, to lease the Premises and to enter
into and perform its obligations under this Lease. Tenant is duly qualified to
do business and is in good standing as a foreign corporation in any jurisdiction
where the failure to so qualify would have a material adverse effect on its
ability to perform its obligations under this Lease.
(b) This Lease has been duly authorized by all necessary corporate action
on the part of Tenant and has been duly executed and delivered by Tenant, and
the execution, delivery and performance thereof by Tenant will not (i) require
any approval of the stockholders of Tenant or any approval or consent of any
trustee or holder of any indebtedness or obligation of Tenant, other than such
consents and approvals as have been obtained, (ii) contravene any applicable
Legal Requirements binding on Tenant, or (iii) contravene or result in any
breach of or constitute any default under Tenant's charter or by-laws or other
organizational documents, or any indenture, judgment, order, mortgage, loan
agreement, contract, partnership or joint venture agreement, lease or other
agreement or instrument to which Tenant is a party or by which Tenant is bound.
(c) This Lease constitutes the legal, valid and binding obligation of
Tenant, enforceable against Tenant in accordance with the terms hereof, except
as enforceability may be limited by bankruptcy, moratorium, fraudulent
conveyance, insolvency, equitable principles or other similar laws affecting the
enforcement of creditors' rights in general.
(d) No bankruptcy, reorganization, arrangement or insolvency proceedings
are pending, threatened or contemplated by Tenant, and Tenant has not made a
general assignment for the benefit of creditors.
(e) To Tenant's knowledge, there are no pending or threatened actions,
suits or proceedings by or before any court or Governmental Authority against or
affecting Tenant with respect to the Premises that, if determined adversely to
such Tenant or the Premises, would materially and adversely affect the market
value of the Premises.
(f) All water, sewer, gas, electric, telephone, cable, drainage
facilities, and other utilities required by applicable Legal Requirements or by
the use and operation of the Premises are installed to the property lines of the
Land, are connected to the Improvements pursuant to valid permits, are adequate
to service the Premises for its current use and so as to comply with applicable
Legal Requirements, are in good working order and repair, and enter and exit the
Land, as the case may be, directly through either (A) public rights-of-ways, (B)
valid and recorded easements for the benefit of the Land, (C) easements
established by a plat fully and finally platted in accordance with the
applicable ordinances, rules, regulations, requirements and procedures of the
City of Fort Worth and/or other Governmental Authorities or (D) the REA; all
driveways, roads, sidewalks and other vehicular and pedestrian passageways
located on the Premises comply with all applicable Legal requirements and enter
and exit the Land, as the case
may be, through one of the means described in the
foregoing (A)-(D); and all other easements and rights necessary for the
continued operation, maintenance, use and occupancy of the Premises (such as,
without limitation, slope, support, foundation, drainage and encroachment
easements) have been or will be validly created for the benefit of the Premises
pursuant to the easements referred to in the foregoing (B)-(D).
EXHIBIT E
SPECIAL WARRANTY DEED
THE STATE OF TEXAS Section
Section KNOW ALL PERSONS BY THESE PRESENTS
COUNTY OF TARRANT Section
NOTICE OF CONFIDENTIALITY RIGHTS
IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWNG
INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
RADIOSHACK CORPORATION, a Delaware corporation ("GRANTOR"), for and in
consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) cash and other good
and valuable consideration to it paid by _______________________, a(n) _________
________ ("GRANTEE"), whose mailing address is _________________________________
___________, the receipt and sufficiency of which are hereby acknowledged and
confessed, has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents
does GRANT, BARGAIN, SELL and CONVEY unto Grantee that certain tract of land
("Land") described in Exhibit A hereto, together with all improvements, thereon
and all rights and appurtenances appertaining thereto (herein collectively
called the "Property").
Grantor hereby reserves unto itself all of Grantor's interest in the oil
and gas that are under the Property (collectively, the "MINERALS"), subject,
however, to the terms and conditions of that certain Reciprocal Easement
Agreement with Covenants, Conditions and Restrictions entered into between
Grantor and Grantee concurrently herewith and to be recorded in the Deed Records
of Tarrant County, Texas after the recording of this Deed.
This conveyance is given and accepted subject to the restrictions,
reservations, covenants, conditions, rights-of-way, easements, and encumbrances
set forth on Exhibit B attached hereto and incorporated herein (herein called
the "PERMITTED ENCUMBRANCES").
[Add appropriate Vendor's Lien language as necessary]
TO HAVE AND TO HOLD the Property together with all and singular rights and
appurtenances thereto in anywise belonging unto Grantee, its legal
representatives, successors, and assigns forever, and Grantor does hereby bind
itself, its legal representatives, successors, and assigns to WARRANT AND
FOREVER DEFEND all and singular the Property, subject to the Permitted
Encumbrances, unto Grantee, its legal representatives, successors, and assigns,
against every person whomsoever lawfully claiming or to claim the same or any
part thereof by, through, or under Grantor, but not otherwise.
WITNESS THE EXECUTION HEREOF as of the ___ day of _____________, 2005.
GRANTOR:
RADIOSHACK CORPORATION, a
Delaware corporation
By:_____________________________
Name:___________________________
Its:____________________________
ACKNOWLEDGEMENT
STATE OF TEXAS Section
COUNTY OF TARRANT Section
This instrument was acknowledged before me on the ___ day of _____________
___, 2005, by ________________, _____________________ of RadioShack Corporation,
a Delaware corporation, on behalf of said corporation.
___________________________________
Notary Public, State of Texas
[SEAL]
AFTER RECORDING RETURN TO:
_____________________________
_____________________________
_____________________________
_____________________________
EXHIBIT F
ASSIGNMENT OF WARRANTIES AND PERMITS
DATE: __________________________, 2005
ASSIGNOR: RadioShack Corporation, a Delaware corporation
ASSIGNEE: ____________________, a ___________________
RECITALS:
Assignor presently owns the real property described in Exhibit A to this
Assignment and the improvements and personal property located thereon (the
"PROPERTY").
WHEREAS, Assignor and Assignee have entered into that certain
Purchase and
Sale Agreement dated as of ____________________, 2005 (the "PURCHASE
AGREEMENT"), wherein Assignor agreed to sell and Assignee agreed to buy the
Property;
Assignor desires to sell the Property to Assignee, and in connection
therewith, Assignor desires to sell, convey and assign to Assignee and Assignee
desires to acquire Assignor's interest, if any, in and to the following
described rights, interests and property inuring to the benefit of Assignor and
relating to the Property.
FOR VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
acknowledged, Assignor agrees as follows:
Assignment. Subject to any applicable assignment provisions set forth in
the Lease, Assignor assigns, transfers, sets over, and conveys to Assignee, to
the extent the same are assignable, all of Assignor's right, title, and
interest, if any, in and to (i) any warranties and/or guaranties, express or
implied, from contractors, builders, manufacturers, and/or suppliers inuring to
the benefit of Assignor and relating to the Property, (ii) any licenses or
permits relating to the Property, and (iii) any other Intangible Personal
Property described in the Purchase Agreement, excluding the Excluded Property
described in the Purchase Agreement.
Xxxx of Sale. Subject to any applicable assignment provisions set forth in
the Lease, Assignor assigns and conveys to Assignee any of the Improvements
which constitute personal property and all other tangible personal property upon
the Land or within the Improvements, including specifically, without limitation,
appliances, carpeting, draperies and curtains, tools and supplies, and other
items of personal property owned by Assignor and used in connection with the
operation of the Property, excluding the Excluded Property described in the
Purchase Agreement.
Binding Effect. This Assignment shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
Construction; Definitions. This Assignment shall be construed according to
Texas law. Capitalized terms used and not otherwise defined herein shall have
the meanings given to such terms in the Purchase Agreement.
DATED as of the day and year first above written.
ASSIGNOR: RadioShack Corporation, a Delaware
corporation
By: _________________________________
Name: _______________________________
Title: ______________________________
ASSIGNEE: ___________________________________, a(n)
By: _________________________________
Name: _______________________________
Title: ______________________________
EXHIBIT G
MEMORANDUM OF LEASE
NOTICE OF CONFIDENTIALITY RIGHTS
IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWNG
INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
THIS MEMORANDUM OF LEASE, made as of the ____ day of __________, 2005,
between ______________________________________________ ("LANDLORD") having an
address at ______________________________, and RadioShack Corporation
("TENANT"), a Delaware corporation, having an address at 000 XxxxxXxxxx Xxxxxx,
XX _____, Xxxx Xxxxx, Xxxxx 00000.
1. Lease. Landlord has demised and let to Tenant pursuant to the terms and
conditions of a Lease dated as of the date hereof (the "Lease"), the terms
and conditions of which are incorporated herein as though set forth in
full, certain real property located in the City of Fort Worth, County of
Tarrant, State of Texas, described in Exhibit A attached hereto together
with all of the improvements located thereon (the "Leased Premises").
2. Original Term. Under the terms of the Lease, Tenant may have and hold the
Leased Premises, together with the tenements, hereditaments, appurtenances
and easements thereunto belonging, at the rental and upon the terms and
conditions therein stated, for an original term (the "Term") commencing as
of _______________ and ending on __________, 20__.
3. Extended Term(s); Etc. Under the terms of the Lease, the Term may be
extended by Tenant for four (4) separate and additional periods of five
(5) years each after the expiration of the then Term (each such additional
5-year period is hereinafter referred to as an "Extended Term"). Each
Extended Term shall be subject to all the terms and conditions of the
Lease as if the Term originally included the Extended Term (except that
Tenant shall not have the right to any additional Extended Terms beyond
such four (4) additional periods). The Lease also contains a right of
first offer relating to certain sales of the Property by Landlord.
4. Purpose and Intention. This Memorandum of Lease is executed for the
purpose of recordation in order to give notice of the Lease and is not
intended, and shall not be construed, to define, limit or modify the
Lease. The leasehold estate created and conveyed hereby with respect to
the Leased Premises is intended to be one and the same estate as was
created with respect to the Leased Premises by the Lease and is further
intended to be governed in all respects solely by the Lease and all of the
provisions thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of
Lease as of the day and year first above written.
LANDLORD:
________________________________________,
a _____________________
By:______________________________________
Name:____________________________________
Its:_____________________________________
TENANT:
Radioshack Corporation, a
Delaware corporation
By:______________________________________
Name:____________________________________
Its:_____________________________________
ACKNOWLEDGEMENT
STATE OF _______ Section
COUNTY OF _________ Section
This instrument was acknowledged before me on the ___ day of _____________
___, 2005, by ________________, _____________________ of ______________________,
a(n) ___________________.
_________________________________________
Notary Public, State of _________
[SEAL]
ACKNOWLEDGEMENT
STATE OF TEXAS Section
COUNTY OF TARRANT Section
This instrument was acknowledged before me on the ___ day of _____________
___, 2005, by ________________, _____________________ of RadioShack Corporation,
a Delaware corporation, on behalf of said corporation.
_________________________________________
Notary Public, State of Texas
[SEAL]
EXHIBIT H
Form of Reciprocal Easement Agreement
(Follows this Page)
RECIPROCAL EASEMENT AGREEMENT WITH COVENANTS,
CONDITIONS AND RESTRICTIONS
THIS RECIPROCAL EASEMENT AGREEMENT WITH COVENANTS, CONDITIONS AND
RESTRICTIONS (the "Agreement") is made and entered into this ___________ day of
_____________, 2005, by and between RadioShack Corporation, a Delaware
corporation ("RadioShack"), and __________________________________________, a(n)
____________________ ("Kan Am").
RECITALS
A. RadioShack this date has sold to Kan Am a tract of land more particularly
described on Exhibit "A" attached to this Agreement and all improvements
located thereon ("Lot 1").
B. RadioShack owns two (2) undeveloped tracts of land more particularly
described on Exhibit "B" attached hereto, which are adjacent to Xxx 0
("Xxx 0" xxx "Xxx 0," respectively, and collectively, the "Adjacent
Lots").
C. In connection with the sale of Lot 1 to Kan Am, Kan Am as landlord, and
RadioShack as tenant, have entered into that certain Lease of even date
herewith (the "RadioShack Lease"), whereby RadioShack will lease Lot 1
from Kan Am in accordance with the terms and provisions set forth in the
Lease.
D. The parties desire to the extent described in this Agreement to develop
and operate their respective tracts of land compatibly.
NOW, THEREFORE, in consideration of the above premises and of the covenants
herein contained, RadioShack and Kan Am hereby covenant and agree that the Lots
and all present and future owners and occupants of the Lots shall be and hereby
are subject to the terms, covenants, easements, restrictions and conditions
hereinafter set forth in this Agreement, so that said Lots shall be maintained,
kept, sold and used in full compliance with and subject to this Agreement and,
in connection therewith, the parties hereto on behalf of themselves and their
respective successors and assigns covenant and agree as follows:
AGREEMENTS
1. Definitions. For purposes hereof:
(a) The term "Owner" or "Owners" shall mean RadioShack (as to the
Adjacent Lots) and Kan Am (as to Lot 1) and any and all successors
or assigns of such entities as the owner or owners of fee simple
title to all or any portion of the real property covered hereby,
whether by sale, assignment, inheritance, operation of law,
trustee's sale, foreclosure, or otherwise, but not including the
holder of any lien or encumbrance on such real property prior to
foreclosure or conveyance in lieu of foreclosure thereof.
(b) The term "Lot" or "Lots" shall mean Lots 1, 2 and 3 and any
future subdivisions thereof.
(c) The term "Permittees" shall mean the tenant(s) or occupant(s) of
a Lot, and the respective employees, agents, contractors, customers,
invitees and licensees of (i) the Owner of such Lot, and/or (ii)
such tenant(s) or occupant(s).
(d) The term "Exterior Areas" shall mean those portions of Lot 1 and
the Adjacent Lots from time to time located thereon that are outside
of exterior walls of buildings or other structures from time to time
located on the Lots, and which are either unimproved, or are
improved as (without limitation) parking areas, landscaped areas,
driveways, roadways, walkways, light standards, curbing, paving,
entrances, exits and other similar exterior site improvements.
(e) The term "Access Easement Area" shall mean those portions of Lot
1 and the Adjacent Lots as depicted and identified as such on
Exhibit "C" attached hereto, together with all driveways, roadways,
walkways, curbing, paving, entrances, exits and other similar
exterior site improvements located thereon from time to time.
(f) The term "Drainage Easement Area" shall mean those portions of
the Adjacent Lots as depicted and identified as such on Exhibit "D"
attached hereto.
(g) The term "Utility Easement Areas" shall mean those portions of
the Adjacent Lots as depicted and identified as such on Exhibits "E"
and "F."
(h) The term "Plat" shall mean the Final Plat of Xxxx 0, 0 xxx 0,
Xxxxx 0, XXXXXXXXXX ADDITION, an Addition to the City of Fort Worth,
as recorded in Volume ___, Page ___, Plat Records of Tarrant County,
Texas.
(i) The term "Utility Lines" shall mean those facilities and
systems, whether now existing or hereafter installed, for
transmission of utility services, including, but not limited to,
water drainage and storage systems and structures; fire protection,
irrigation and domestic water mains; sanitary and storm sewer lines;
telephone lines and communication lines; electrical conduits or
systems, gas mains and other public or private utilities or
underground utility systems.
(j) The term "Common Utility Lines" shall mean those Utility Lines
which are installed to provide the applicable service to more than
one of the Lots.
(k) The term "Separate Utility Lines" shall mean those Utility Lines
which are installed to provide applicable service to only one Lot.
For the purpose of this Agreement, the portion of a Utility Line
extending between a Common Utility
-2-
Line and a building or other improvements shall be considered a
Separate Utility Line.
2. Access Easement.
2.1 Subject to any express conditions, limitations or reservations
contained herein, the Owners hereby grant, establish, covenant and agree
that the Lots, and all Owners and Permittees of the Lots, shall be
benefited and burdened by a nonexclusive, perpetual and reciprocal
easement for reasonable access, ingress and egress over the Access
Easement Area (the "Access Easement") so as to provide for the passage of
motor vehicles and pedestrians to and from (i) the Adjacent Lots and Lot
1, as the case may be, and (ii) abutting streets or rights of way
furnishing access to such Lots through the Access Easement.
2.2 In connection with the future development of any Adjacent Lot, the
Owners of the other Lots agree to cooperate in good faith with the Owner
of any Adjacent Lot being developed with respect to the relocation of any
portion of the Access Easement Area reasonably required for or beneficial
to the use and development of the Adjacent Lot being developed including,
but not limited to, joining in, and using its best efforts to cause any
mortgagee to join in and subordinate any mortgage then affecting such
other Lot to any new easement or any amendment to this Agreement, provided
such amended easement does not materially reduce the value of the other
Lots or adversely affect the current or future use and operation of the
buildings, structures, improvements and facilities located on Lot 1. All
costs associated with respect to the relocation of any easements
including, but not limited to, the construction of improvements associated
therewith, shall be borne by the Owner of the Adjacent Lot being
developed.
2.3 The Owner of each Lot shall, at the sole expense of such Owner,
maintain the Access Easement Area and related improvements located on its
Lot at all times in good and clean condition and repair.
3. Drainage Easement.
3.1 Subject to any express conditions, limitations or reservations
contained herein, the Owner of the Adjacent Lots hereby grants, conveys
and establishes, and covenants and agrees that Xxx 0 xxx xxx Xxxxx xx Xxx
0 xxxxx xx benefited by, a nonexclusive, perpetual easement for the
discharge, drainage, retention and detention of storm water runoff over
and across the Drainage Easement Area (the "Drainage Easement"). The
Drainage Easement shall include the right of the Owner of Lot 1 (and its
agents, employees and contractors) to repair, maintain and replace to
Drainage Easement, including reasonable ingress and egress with respect to
the Drainage Easement Area as may be required to perform such repair,
maintenance and replacement.
3.2 The Drainage Easement Area shall not be modified, altered, relocated
or otherwise changed without the prior written consent of the Owner of Lot
1. The Owner
-3-
of Lot 1 shall operate and maintain, or cause to be operated and
maintained, in good order, condition and repair, the Drainage Easement
Area and make any and all repairs that may from time to time be required
with respect thereto. No Adjacent Lot or Owner of any Adjacent Lot shall
have the right, or shall grant to any third party, the right to use the
Drainage Easement Area without the prior written consent of the Owner of
Lot 1, if such use would adversely affect the Drainage Easement or the
capacity of the Drainage Easement to serve Lot 1 as contemplated by the
initial design and construction of the improvements currently existing on
Lot 1.
4. Utility Easements.
4.1 Subject to any express conditions, limitations or reservations
contained herein, the Owner of the Adjacent Lots hereby grants, conveys
and establishes, and covenants and agrees that Xxx 0 xxx xxx Xxxxx xx Xxx
0 xxxxx xx benefited by, nonexclusive, perpetual easements for Utility
Lines under, through and across the Utility Easement Areas for the
installation, operation, maintenance, repair and replacement of Utility
Lines (the "Utility Easements"; collectively, the Access Easement,
Drainage Easement and the Utility Easements may be referred to herein as
the "Easements", and each an "Easement"). The Utility Easements shall
include the right of reasonable ingress and egress with respect to the
Utility Easement Areas as may be required to maintain the same. Each
portion of the Utility Easement Areas shall be of a reasonable width, but
in any event at least twenty feet (20') in width, ten feet (10') on each
side of the centerline of the applicable Utility Line, as such Utility
Lines are currently located and depicted on Exhibits "E" and "F" attached
hereto.
4.2 The cost of maintaining, repairing and replacing the Separate Utility
Lines shall be borne solely by the Owner of the Lot serviced thereby. The
cost of maintaining, repairing and replacing Common Utility Lines ("Common
Utility Maintenance") shall be borne solely by the Owners served thereby
and all costs associated therewith shall be allocated among the Owners of
the Lots served thereby in proportion to the total land area of each Lot
served. Except in the case of emergencies, the Owner performing such
Common Utility Maintenance shall notify any other Owners of Lots served by
the affected Common Utility Lines of the need for such maintenance, repair
and replacement at least fifteen (15) days prior to the commencement of
any such work. The Owner performing such Common Utility Maintenance shall
xxxx the other obligated Owners for their proportionate share(s) of the
actual costs of such work, and each such Owner shall pay its xxxx within
thirty (30) days after receipt of the same. Bills shall be accompanied
with reasonable supporting information establishing the full amount of the
costs for Common Utility Maintenance and the billed Owner's proportionate
share.
4.3 Within one hundred twenty (120) days after the date hereof, the Owner
of the Adjacent Lots shall, at its expense, cause to be prepared and
delivered to the Owner of Lot 1 a survey showing the actual location of
the Utility Lines and the associated Utility Easement Areas located on the
Lots and the Owners agree to execute and deliver any
-4-
amendment to this Agreement necessary or desirable to more precisely
describe or delineate the Utility Easement Areas.
4.4 All Utility Lines shall be installed and maintained below the ground
level or surface of the Utility Easement Areas except for surface
stormwater drainage facilities that by necessity must be located on the
surface of a Lot and ground mounted electrical transformers and such other
facilities necessary to be located above ground by the utility providing
such service. The operation, maintenance, repair and replacement of
Utility Lines (i) may be performed by the Owner of any Lot served thereby
(and in the case of any Common Utility Lines in accordance with the
provisions of Section 4.2 above) and (ii) shall not unreasonably interfere
with the use or occupancy of any other Lot.
4.5 At any time and from time to time the Owner of a Lot shall have the
right to relocate on its Lot any Utility Line installed pursuant to the
Utility Easements which is then located on the Lot of such Owner, provided
that such relocation (i) shall be performed only after sixty (60) days'
written notice of the Owner's intention to undertake the relocation shall
have been given to the Owner of each other Lot served by the Utility Line,
(ii) shall not interfere with or diminish utility service to the Lot(s)
served by the Utility Line, (iii) shall not reduce or impair the
usefulness or function of the Utility Line, and (iv) shall be performed
without cost or expense to the Owner or occupant of any other Lot.
5. Indemnification. Each Owner having rights with respect to any Easement
shall indemnify and hold the Owner whose Lot is subject to the Easement
harmless from and against all claims, liabilities and expenses (including
reasonable attorneys' fees) relating to accidents, injuries, loss, or
damage of or to any person or property arising from the negligent,
intentional or willful acts or omissions of such indemnifying Owner, its
contractors, employees, agents, or others acting on behalf of such Owner.
6. Maintenance.
6.1 Until such time as improvements are constructed on a Lot, the Owner
thereof shall maintain such Lot in a clean and neat condition. Upon
construction of any buildings or other improvements upon a Lot, the Owner
of such Lot covenants to keep and maintain, at its sole cost and expense,
such buildings or other improvements located from time to time thereon in
good order, condition and repair.
6.2 Each Owner covenants at all times during the term hereof to operate
and maintain or cause to be operated and maintained at its expense all
Exterior Areas located on its Lot in good order, condition and repair.
Following the construction of improvements thereon, maintenance of
Exterior Areas shall include, without limitation, maintaining and
repairing all sidewalks and the surface of the parking and driveway areas,
maintaining appropriate lighting fixtures for the parking areas and
driveways, maintaining marking, directional signs, lines and striping as
needed, maintaining landscaping, maintaining signage in good condition and
repair, and performing any and all such other duties as are
-5-
necessary to maintain such Exterior Areas in a clean, safe and orderly
condition. Each Owner reserves the right to alter, modify, reconfigure,
relocate and/or remove the Exterior Areas or building areas on its Lot
provided that the Easements shall not be materially impaired.
6.3 Nothing in this Agreement shall be construed as affecting or limiting
RadioShack's obligations as tenant under the RadioShack Lease.
7. Construction of Improvements. All buildings, structures and other
improvements now or in the future constructed on the Lots shall be
constructed, operated and maintained so that the same are in compliance
with all applicable governmental requirements.
8. Restrictions Regarding Minerals Extraction. It is expressly agreed that
neither all nor any portion of the Lots shall be used to maintain any
structures, improvements, equipment or pipelines or to erect or install
any fixtures or facilities used or to be used in connection with the
exploration and/or removal of any oil, gas or other minerals either at the
surface of below the surface of any Lot. Notwithstanding the foregoing
sentence, such restrictions will not prohibit subterranean underground
directional drilling activities for the extraction of oil or natural gas
under any Lot that begin upon and are conducted from the surface of real
property other than the Lots provided that (i) such drilling activities at
all times are sufficiently below the surface of the Lots as to not
interfere with or disturb in any manner the present or future use to which
the Owners of the Lots or the Owner's successors and assigns may desire to
devote such Lots; provided, however, in no event shall the directional
drilling or sub-surface activities be at depths less than one thousand
(1,000) feet below the overlying surface of any Lot, (ii) no pooling
and/or directional drilling arrangement with other landowners shall permit
any above ground structures, improvements, equipment, pipelines, fixtures
or facilities to be erected, installed or maintained on any Lot and if any
such above ground structures, improvements, equipment, pipelines, fixtures
or facilities are erected, installed or maintained on any property within
six hundred (600) feet of the any property line of Lot 1 the same shall be
erected, installed and maintained in accordance with requirements no less
stringent than those for high impact gas well permits as set forth in
subsections (d) through (j) of Section 15-36.1 of the Code of the City of
Fort Worth, Texas in effect as of the date hereof (and regardless of
whether such provisions actually apply to the drilling operations and
activities actually being conducted); (iii) RadioShack, any other
applicable Owner of an Adjacent Lot or any holder of the right to extract
any oil or natural gas provides the Owner of any affected Lot copies of
any mineral leases or pooling agreements within thirty (30) days after
execution of the same, and all such mineral leases and pooling agreements
shall affirmatively provide that they are subject to the terms and
provisions of this Agreement. RadioShack hereby represents and warrants to
Kan Am that RadioShack has no present intentions or arrangements to
conduct any extraction of oil or natural gas from any Lot. At the request
of the Owner of Lot 1, each of RadioShack, any other Owner of any Adjacent
Lot and any holder of the mineral rights in and to any Lot hereby
covenants and agrees to keep the Owner of Lot 1 informed of any pooling
negotiations
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concerning the extraction, or any intention to conduct activities to
extract, oil or natural gas from any Lot.
9. Insurance. Throughout the term of this Agreement, each Owner shall procure
and maintain general and/or comprehensive public liability and property
damage insurance against claims for personal injury (including contractual
liability arising under the indemnity contained in Section 5 above),
death, or property damage occurring upon such Owner's Lot. Such insurance
shall have a combined single limit of not less than $1,000,000 per
occurrence with a minimum $5,000,000 aggregate limit and excess umbrella
liability insurance in the amount of at least $10,000,000. Each Owner
shall be required to increase its insurance limits from time to time
consistent with coverage on properties similarly constructed, occupied and
maintained provided that any such increased coverage shall be obtainable
at commercially reasonable rates. In no event shall the limits of such
insurance be considered as limiting the liability of any Owner under this
Agreement. Notwithstanding anything to the contrary, during the term of
the RadioShack Lease, the insurance required to be carried by RadioShack
under the RadioShack Lease will be deemed to satisfy the obligations of
the Owner of Lot 1 under this Section 9.
10. Taxes and Assessments. Each Owner shall pay all taxes, assessments, or
charges of any type levied or made by any governmental body or agency with
respect to its Lot; provided, however, that for so long as the RadioShack
Lease is in effect, RadioShack shall pay such taxes, assessments and
charges levied with respect to Lot 1 in accordance with the provisions of
the RadioShack Lease.
11. Right of First Offer.
11.1 Subject to the provisions of this Section 11, the Owner of Lot 1
shall have a right of first offer as described in this Section 11 with
respect to any sale or transfer of any Adjacent Lot, or any portion
thereof or interest therein, to any person or entity. If the Owner of an
Adjacent Lot ("Selling Owner") intends to offer for sale the Adjacent Lot,
or any portion thereof or interest therein, to any party (other than in
connection with an Excluded Transaction, as hereinafter defined), the
Selling Owner shall deliver to the Owner of Lot 1 a written notice
(constituting an offer) stating the sales price and all other material
terms for the sale of the Adjacent Lot (or such interest) that the Selling
Owner would accept (the "First Offer"). The Owner of Lot 1 shall have
thirty (30) days (the "Acceptance Period") from its receipt of the First
Offer to accept, by written notice to Landlord, the First Offer. The
Selling Owner may not revoke the First Offer during the Acceptance Period.
If the Owner of Lot 1 accepts the First Offer, the Owner of Lot 1 must
enter into a purchase agreement with the Selling Owner for the purchase
and sale of the Adjacent Lot, or any portion thereof or interest therein,
by the later of (i) the expiration of the Acceptance Period or (ii)
fifteen (15) days after the Owner of Lot 1 has irrevocably accepted the
First Offer by written notice to Landlord as provided above. Such purchase
agreement shall provide for closing on the terms set forth in the First
Offer. The Selling Owner and the Owner of Lot 1 agree to negotiate any
purchase agreement in good faith. The failure of the Owner of Lot 1 to
accept the First Offer by
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written notice to Landlord within the Acceptance Period as provided above
shall constitute rejection by the Owner of Lot 1 of the First Offer.
11.2 If the Owner of Lot 1 rejects the First Offer or fails to accept the
First Offer prior to the expiration of the Acceptance Period, the Selling
Owner may, subject to the terms hereof, offer the Adjacent Lot (or portion
thereof or interest therein) for sale to third parties at a price not less
than ninety-five percent (95%) of the price and on other economic terms
materially no more beneficial to the third party than those contained in
the First Offer; provided, however, that if the Selling Owner desires to
accept an offer from a third party (the "Offeree") at a price that is less
than ninety-five percent (95%) of the price (including in all cases debt
to be assumed) offered to the Owner of Lot 1, then the Selling Owner shall
be required to re-offer the Adjacent Lot (or portion thereof or interest
therein) to the Owner of Lot 1 at such reduced price (the "Revised First
Offer"), in which event the Owner of Lot 1 shall either accept or reject
the Revised First Offer, by written notice to the Selling Owner, within
seven (7) days after the date of its receipt of the Revised First Offer
(with the failure of the Owner of Lot 1 to accept the Revised First Offer
by written notice to Landlord within the such 7-day period being deemed to
be a rejection by the Owner of Lot 1 of the Revised First Offer). If the
Selling Owner desires to accept an offer from any Offeree for a price that
is ninety-five percent (95%) or more of the price offered to the Owner of
Lot 1 (or a lower price if the Owner of Lot 1 rejects any Revised First
Offer), the Selling Owner may enter into a bona fide agreement to sell,
assign or otherwise transfer the Adjacent Lot (or such portion thereof or
interest therein) to the Offeree no later than two hundred seventy (270)
days after the end of the Acceptance Period and may close such sale,
assignment or other transfer no later than three hundred sixty-five (365)
days after the end of the Acceptance Period. Absent the execution and
delivery of such bona fide agreement to sell, assign or otherwise transfer
within such 270-day period and the closing of the sale, assignment or
transfer within such 365-day period, the Selling Owner shall be required
to repeat the procedure set forth in this Section 11 if it still desires
to sell the Adjacent Lot or such portion thereof or interest therein.
11.3 In the event that the Selling Owner shall receive an unsolicited Bona
Fide Offer (as defined below) to purchase the Adjacent Lot or any portion
thereof or interest therein at any time and from time to time during the
term of this Agreement from any person or entity, the Selling Owner shall
so notify the Owner of Lot 1 together with a true and correct copy of said
Bona Fide Offer. For purposes hereof, a "Bona Fide Offer" shall be deemed
to be one made in writing by a person or entity in connection with a
transaction that is not an Excluded Transaction which the Selling Owner
desires to accept (subject to this Section 11). In submitting the Bona
Fide Offer to the Owner of Lot 1, the Selling Owner shall segregate the
price and the terms of the offer for the Adjacent Lot from the price and
other terms connected with any additional property or properties that such
person or entity is offering to purchase from the Selling Owner. The Owner
of Lot 1 may, at the Owner of Lot 1's option and within thirty (30) days
after receipt of the Selling Owner's notice of said Bona Fide Offer and
receipt of a copy thereof, offer to purchase the Adjacent Lot at the price
and upon the terms and conditions as are contained in said Bona Fide
Offer, in which event, the Selling Owner shall sell the Adjacent Lot to
the
-8-
Owner of Lot 1, and the Owner of Lot 1 shall purchase the Adjacent Lot
from the applicable Owner of the Adjacent Lot, upon said terms and
conditions and said price. If the Owner of Lot 1 fails to respond to the
Selling Owner's notice of said Bona Fide Offer within said thirty (30) day
time period, the Owner of Lot 1 shall be deemed to have waived its right
of first refusal contained in this Section 11.3, but only as to the
transaction contemplated in the Bona Fide Offer. Notwithstanding the
foregoing, the price that the Owner of Lot 1 shall pay for the Adjacent
Lot shall be reduced by an amount equal to broker's fees or commissions
that would have been payable by the Selling Owner if the Adjacent Lot were
sold pursuant to a Bona Fide Offer, except to the extent that the Selling
Owner is otherwise obligated to pay such fees or commissions to an
unaffiliated third party upon the sale of the Adjacent Lot to the Owner of
Lot 1 pursuant to the provisions of this Section 11.3. The Selling Owner
shall provide the Owner of Lot 1 evidence of the amount of broker's fees
or commissions payable in connection with any such Bona Fide Offer.
11.4 The Selling Owner covenants that it shall not convey all or any
portion of any Adjacent Lot until it has complied with the terms of this
Section 11; provided, however, that after the initial conveyance by the
Selling Owner of any portion of an Adjacent Lot to any third party in
connection with a transaction that is not an Excluded Transaction in
compliance with the provisions of this Section 11 (whether pursuant to the
provisions of Section 11. 1, Section 11.2 or Section 11.3), the provisions
of this Section 11 shall be void and of no force and effect and shall no
longer apply to any subsequent transfer or sale of such portion of the
Adjacent Lot by the Owner thereof, unless any such initial conveyance
occurs on or before the third (3rd) anniversary of the date hereof, in
which event compliance by the Selling Owner with the terms of this Section
11 shall be required for the immediately succeeding conveyance by the
Selling Owner to any third party in connection with a transaction that is
not an Excluded Transaction but not in connection with any subsequent
conveyance or transaction by the Selling Owner thereafter, and, after such
immediately succeeding transaction, the provisions of this Section 11
shall be void and of no further force and effect and shall no longer apply
to any subsequent transfer or sale of the Adjacent Lot by the Owner
thereof. Upon request by the Selling Owner, in connection with any such
initial conveyance or other transaction for which the Owner of Lot 1 has
or is deemed to have rejected or waived its rights pursuant to the
provisions of Section 11.1, Section 11.2 or Section 11.3 above, the Owner
of Lot 1, within five (5) days after notice from Landlord, shall execute
and deliver an instrument, in recordable form and otherwise in form and
substance reasonably satisfactory to Landlord, evidencing such rejection
or waiver and confirming that the Owner of Lot 1 has no rights whatsoever
with respect to such conveyance or other transaction, and in addition, if
requested by the Selling Owner, the Owner of Lot 1 shall execute and
deliver an amendment to this Agreement acknowledging that the rights of
the Owner of Lot 1 in this Section 11 are no longer in effect, and
deleting this provisions of this Section 11 from this Agreement, as they
relate to the Adjacent Lot or portion thereof or interest therein to which
such rejection or waiver applies. The Owner of Lot 1 may enforce this
Section 11, without limitation, by injunction, specific performance or
other equitable relief. The terms and
-9-
conditions contained in this Section 11 shall be binding upon the heirs,
successors and assigns of the Owners.
11.5 Notwithstanding anything in this Section 11 to the contrary, the
provisions of this Section 11 shall not apply to, and the Owner of an
Adjacent Lot shall have no obligation to comply with the provisions of
this Section 11 in connection with any of the following (each an "Excluded
Transaction"): (i) any transfer, assignment or conveyance of all or any
portion of an Adjacent Lot to an Affiliate (as hereinafter defined); (ii)
any transaction involving a sale, disposition, assignment, transfer,
consolidation, merger, reorganization, recapitalization or other
restructuring of RadioShack; or (iii) any sale, transfer or conveyance of
the interest of an Owner of an Adjacent Lot in such Adjacent Lot in
connection with the foreclosure of any mortgage or deed of trust whether
by judicial or non-judicial sale, or any deed or assignment in lieu of
foreclosure. In addition, notwithstanding anything in this Section 11 to
the contrary, the terms and provisions of this Section 11 shall not apply
to, and the rights of the Owner of Lot 1 under this Section 11 shall be
deemed permanently extinguished and of no further force and effect after,
any sale, ground lease or other transfer of the Adjacent Lots (or any
portion thereof or interest therein) that is associated with the Trinity
River Vision project contemplated by the City of Fort Worth, Texas or
other applicable governmental authority other than any such sale, ground
lease or other transfer of the Adjacent Lots (or any portion thereof or
interest therein) on which there is then located or proposed to be
developed or constructed (A) any "stand alone" office building or (B) any
other improvements or facilities owned or leased by RadioShack or any of
its Affiliates. Each of RadioShack and any other Owner of any Adjacent Lot
hereby agrees to keep the Owner of Lot 1 informed of any material
discussions or negotiations by such parties pertaining to, or contemplated
development associated with, the Trinity River Project. As used in this
Section 11, "Affiliate" means any entity that is controlled by or under
common control with RadioShack or in which not less than a twenty percent
(20%) direct or indirect beneficial ownership interest is owned by
RadioShack.
12. Use Restrictions. None of the Lots nor any portions thereof shall be used
(i) in violation of any applicable legal requirements of governmental
authorities with respect to the use of or any activities conducted on such
Lot or any portion thereof, or (ii) for any other use not compatible with
the operation of retail and Class A commercial facilities. Without
limiting the generality of the provisions of the immediately preceding
sentence, the following uses shall not be permitted within any Lot (unless
otherwise indicated below):
(a) Any use which constitutes a public or private nuisance or which emits
or generates an obnoxious and offensive to a person of ordinary
sensibilities amount or volume of odor, noise, litter, dust or dirt which
can be heard or smelled outside of any building located on any Lot;
(b) Any use which produces or is accompanied by any unusual fire,
explosive or other damaging or dangerous hazards (including the storage,
display or sale of explosives or fireworks);
-10-
(c) Any shooting gallery or gun range;
(d) Any operation primarily used as a storage warehouse operation and any
assembling, manufacturing, refining, smelting, industrial, agricultural,
drilling or mining operation;
(e) Any automobile body shop or repair operation, including automobile
servicing or repair work (e.g., oil change, tire change, body or paint
shop, tune-up, brake or muffler service);
(f) Retail or wholesale gasoline or automobile service stations;
(g) Any veterinarian, veterinary hospital or animal raising facilities
(except that this prohibition shall not prohibit a retail pet shop);
(h) Any mortuary, crematorium or funeral home;
(i) Any facility or establishment primarily selling, renting or exhibiting
sexually explicit, or pornographic materials or illegal drug-related
paraphernalia or featuring strip tease acts or nude dancing;
(j) A flea market;
(k) A mobile home or trailer court, labor camp, junkyard or stockyard;
(l) A land fill, garbage dump or for the dumping, disposing, incineration
or reduction of garbage;
(m) A gambling establishment, bingo parlor or betting parlor; or
(n) A massage parlor.
Notwithstanding anything to the contrary, nothing in this Section 12 shall
prohibit any restaurant or retail use or other related use that is
permitted by and associated with the Trinity River Vision project
contemplated by the City of Fort Worth, Texas or other applicable
governmental authority.
13. No Rights in Public; No Implied Easements. Nothing contained herein shall
be construed as creating any rights in the general public or as dedicating
for public use any portion of the Lots. No easements, except those
expressly set forth in Sections 2, 3 and 4 shall be implied by this
Agreement.
14. Remedies and Enforcement.
-11-
14.1 In the event of a breach or threatened breach by any Owner or its
Permittees of any of the terms, covenants, restrictions or conditions
hereof, the other Owner(s) shall be entitled forthwith to full and
adequate relief by injunction and/or all such other available legal and
equitable remedies from the consequences of such breach, including payment
of any amounts due and/or specific performance.
14.2 In addition to all other remedies available at law or in equity, upon
the failure of a defaulting Owner to cure a breach of this Agreement
within thirty (30) days following written notice thereof by an Owner
(unless, with respect to any such breach the nature of which cannot
reasonably be cured within such 30-day period, the defaulting Owner
commences such cure within such 30-day period and thereafter diligently
prosecutes such cure to completion), any Owner shall have the right to
perform such obligation contained in this Agreement on behalf of such
defaulting Owner and be reimbursed by such defaulting Owner upon demand
for the reasonable costs thereof together with interest at the per annum
rate of interest equal to the annual "prime rate" identified in the "Money
Rates" column in the Wall Street Journal, plus four percent (4%) (not to
exceed the maximum rate of interest allowed by law).
15. Term. The easements, covenants, conditions and restrictions contained in
this Agreement shall be effective commencing on the date of recordation of
this Agreement in the Real Property Records of Tarrant County, Texas and
shall remain in full force and effect thereafter in perpetuity, unless
this Agreement is modified, amended, canceled or terminated by the written
consent of all then record Owners of the Lots in accordance with Section
16.2 hereof.
16. Miscellaneous.
16.1 In the event a party institutes any legal action or proceeding for
the enforcement of any right or obligation herein contained, the
prevailing party after a final adjudication shall be entitled to recover
its costs and reasonable attorneys' fees incurred in the preparation and
prosecution of such action or proceeding.
16.2 The parties agree that the provisions of this Agreement may be
modified or amended, in whole or in part, or terminated, only by the
written consent of all record Owners of the Lots, evidenced by a document
that has been fully executed and acknowledged by all such record Owners
and recorded in the Real Property Records of Tarrant County, Texas.
16.3 No waiver of any default of any obligation by any party hereto shall
be implied from any omission by the other party to take any action with
respect to such default.
16.4 Nothing in this Agreement shall be deemed or construed by either
party or by any third person to create the relationship of principal and
agent or of limited or general partners or of joint venturers or of any
other association between the parties.
-12-
16.5 It is intended that each of the easements, covenants, conditions,
restrictions, rights and obligations set forth herein shall run with the
land and create equitable servitudes in favor of the real property
benefited thereby, shall bind every person having any fee, leasehold or
other interest therein and shall inure to the benefit of the respective
parties and their successors, assigns, heirs, and personal
representatives.
16.6 The grantee of any Lot or any portion thereof, by acceptance of a
deed conveying title thereto or the execution of a contract for the
purchase thereof, whether from an original party or from a subsequent
owner of such Lot, shall accept such deed or contract upon and subject to
each and all of the easements, covenants, conditions, restrictions and
obligations contained herein. By such acceptance, any such grantee shall
for himself and his successors, assigns, heirs, and personal
representatives, covenant, consent, and agree to and with the other party,
to keep, observe, comply with, and perform the obligations and agreements
set forth herein with respect to the property so acquired by such grantee.
16.7 Each provision of this Agreement and the application thereof to Lot 1
and the Adjacent Lots are hereby declared to be independent of and
severable from the remainder of this Agreement. If any provision contained
herein shall be held to be invalid or to be unenforceable or not to run
with the land, such holding shall not affect the validity or
enforceability of the remainder of this Agreement. Ownership of all Lots
by the same person or entity shall not terminate this Agreement nor in any
manner affect or impair the validity or enforceability of this Agreement.
16.8 This Agreement contains the complete understanding and agreement of
the parties hereto with respect to all matters referred to herein, and all
prior representations, negotiations, and understandings are superseded
hereby.
16.9 Notices or other communication hereunder shall be in writing and
shall be sent certified or registered mail, return receipt requested, or
by other national overnight courier company, or personal delivery. Notice
shall be deemed given upon receipt or refusal to accept delivery. Each
party may change from time to time their respective address for notice
hereunder by like notice to the other party. The notice addresses of the
Lot 1 Owner and the Adjacent Lots Owner are as follows:
Adjacent Lots Owner:
RadioShack Corporation
000 XxxxxXxxxx Xxxxxx, XX XX0-000
Xxxx Xxxxx, Xxxxx 00000
Attn.: Vice President - Corporate Real Estate Operations
Facsimile: (000) 000-0000
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Xxx 0 Xxxxx:
x/x Xxx Xx Xxxxx Xxxxxxxxxxxxxxxxxxxxxxxxx mbH
c/o WestWind Capital Partners, LP
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. XxXxxxxx
L. Xxxx Xxxxx
Xxxxxxxx X. Xxxx
Facsimile: (000) 000-0000
With a copy to:
KanAm Xxxxx Kapitalanlagegesellschaft mbH
XxxxxXxxx
00000 Xxxxxxxxx Xx Xxxx
Attn: Olivier Catusse, Director
Facsimile: 011 49 69 7104 11 600
And with a copy to:
King & Spalding, LLP
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attn: W. Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
16.10 The laws of the State of Texas shall govern the interpretation,
validity, performance, and enforcement of this Agreement.
16.11 Each Owner, within twenty (20) day of its receipt of a written
request from the other Owner(s), shall from time to time provide the
requesting Owner, a certificate binding upon such Owner stating: (a) to
the best of such Owner's knowledge, whether any party to this Agreement is
in default or violation of this Agreement and if so identifying such
default or violation; and (b) that this Agreement is in full force and
effect and identifying any amendments to the Agreement as of the date of
such certificate.
16.12 In the event of any bankruptcy affecting any Owner or occupant of
any Lot, the parties agree that this Agreement shall, to the maximum
extent permitted by law, be considered an agreement that runs with the
land and that is not rejectable, in whole or in part, by the bankrupt
person or entity.
[Signature page follows]
-14-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RADIOSHACK CORPORATION, a
Delaware corporation
By: _____________________________________
Name: ___________________________________
Title: __________________________________
_________________________,
a(n)_____________________________________
By: _____________________________________
Name: ___________________________________
Title: __________________________________
By: _____________________________________
Name: ___________________________________
Title: __________________________________
-00-
XXX XXXXX XX XXXXX Xxxxxxx
Xxxxxxx
XXXXXX OF TARRANT Section
This instrument was acknowledged before me this _____ day of ____________,
2005, by _____________________, _____________________ of RadioShack Corporation,
a Delaware corporation, on behalf of said corporation.
_________________________________________
Notary Public
(PERSONALIZED SEAL)
THE STATE OF _______ Section
Section
COUNTY OF _________ Section
This instrument was acknowledged before me this _____ day of ____________,
2005, by _____________________, _____________________ of ______________________,
a(n) _____________, on behalf of said ____________________.
_________________________________________
Notary Public
(PERSONALIZED SEAL)
Exhibit "A" - Legal Description of Xxx 0
Xxxxxxx "X" - Legal Descriptions of the Adjacent Lots
Exhibit "C" - Access Easement Area
Exhibit "D" - Drainage Easement Area
Exhibit "E" - Utility Easement Areas
Exhibit "F" - Utility Easement Areas
-16-
EXHIBIT I
Title Commitment
(Follows this Page)
Note: An identical title commitment is being issued by Republic Title of Texas,
Inc., as agent for Chicago Title Insurance Company, in the amount of the
remainder of the Purchase Price.
COMMITMENT FOR TITLE INSURANCE
Issued by
FIRST AMERICAN TITLE INSURANCE COMPANY
THE FOLLOWING COMMITMENT FOR TITLE INSURANCE IS NOT VALID UNLESS YOUR NAME AND
THE POLICY AMOUNT ARE SHOWN IN SCHEDULE A. AND OUR AUTHORIZED REPRESENTATIVE HAS
COUNTERSIGNED BELOW.
We, First American Title Insurance Company, will issue our title insurance
policy or policies (the Policy) to You (the proposed insured) upon payment of
the premium and other charges due, and compliance with the requirements in
Schedule B and Schedule C. Our Policy will be in the form approved by the Texas
Department of Insurance at the date of issuance, and will insure your interest
in the land described in Schedule A. The estimated premium for our Policy and
applicable endorsements is shown on Schedule D. There may be additional charges
such as recording fees, and expedited delivery expenses.
This Commitment ends ninety (90) days from the effective date, unless the Policy
is issued sooner, or failure to issue the Policy is our fault. Our liability and
obligations to you are under the express terms of this Commitment and end when
this Commitment expires.
In witness whereof, the Company has caused this commitment to be signed and
sealed as of the effective date of commitment as shown in Schedule A, the
commitment to become valid and binding only when countersigned by an authorized
signatory.
ATTEST FIRST AMERICAN TITLE INSURANCE COMPANY
[SEAL] /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
------------------- -------------------
Secretary PRESIDENT
/s/ Xxxxxxxx Xxxxx
--------------------------------------
Authorized Signature
CONDITIONS AND STIPULATIONS
1. If you have actual knowledge of any matter which may affect the title or
mortgage covered by this Commitment, that is not shown in Schedule B, you must
notify us in writing. If you do not notify us in writing, our liability to you
is ended or reduced to the extent that your failure to notify us affects our
liability. If you do notify us, or we learn of such matter, we may amend
Schedule B, but we will not be relieved of liability already incurred.
2. Our liability is only to you, and others who are included in the definition
of Insured in the Policy to be issued. Our liability is only for actual loss
incurred in your reliance on this Commitment to comply with its requirements or
to acquire the interest in the land. Our liability is limited to the amount
shown in Schedule A of this Commitment and will be subject to the following
terms of the Policy: Insuring Provisions, Conditions and Stipulations,
Exceptions and Exclusions.
FORM T-7 CA Commitment for Title Insurance (04-04-02)
TEXAS TITLE INSURANCE INFORMATION
Title insurance insures you against loss resulting from certain risks to your
title.
The Commitment for Title Insurance is the title insurance company's promise to
issue the title insurance policy. The Commitment is a legal document. You should
review it carefully to completely understand it before your closing date.
El seguro de titulo le asegura en relacion a perdidas resultantes de ciertos
riesgos que pueden afectar el titulo de su propiedad.
El Compromiso para Seguro de Titulo es la promesa de la companla aseguradora de
titulos de emitir la poliza de seguro de titulo. El Compromiso es un documento
legal. Usted debe leerlo cuidadosamente y entenderlo completamente antes de la
fecha para finalizar su transaccion.
Your Commitment for Title Insurance is a legal contract between you and us. The
Commitment is not an opinion or report of your title. It is a contract to issue
you a policy subject to the Commitment's terms and requirements.
Before issuing a Commitment for Title Insurance (the Commitment) or a Title
Insurance Policy (the Policy), the Title Insurance Company (the Company)
determines whether the title is insurable. This determination has already been
made Part of that determination involves the Company's decision to insure the
title except for certain risks that will not be covered by the Policy. Some of
these risks are listed in Schedule B of the attached Commitment as Exceptions.
Other risks are stated in the Policy as Exclusions. These risks will not be
covered by the Policy.
Another part of the determination involves whether the promise to insure is
conditioned upon certain requirements being met. Schedule C of the Commitment
lists these requirements that must be satisfied or the Company will refuse to
cover them. You may want to discuss any matters shown in Schedules B and C of
the Commitment with an attorney. These matters will affect your title and your
use of the land.
When your Policy is issued, the coverage will be limited by the Policy's
Exceptions, Exclusions and Conditions, defined below.
-- EXCEPTIONS are title risks that a Policy generally covers but does not
cover in a particular instance. Exceptions are shown on Schedule B or
discussed in Schedule C of the Commitment. They can also be added if you
do not comply with the Requirements section of the Commitment. When the
Policy is issued, all Exceptions will be on Schedule B of the Policy.
-- EXCLUSIONS are title risks that a Policy generally does not cover.
Exclusions are contained in the Policy but not shown or discussed in the
Commitment.
-- CONDITIONS are additional provisions that qualify or limit your
coverage. Conditions include your responsibilities and those of the
Company. They are contained in the Policy but not shown or discussed in
the Commitment. The Policy Conditions are not the same as the Commitment
Conditions.
You can get a copy of the policy form approved by the State Board of Insurance
by calling the Title Insurance Company at 1-800-347-7826 or by calling the title
insurance agent that issued the Commitment. The State Board of Insurance may
revise the policy form from time to time.
You can also get a brochure that explains the policy from the Texas Department
of Insurance by calling 0-000-000-0000.
Before the Policy is issued, you may request changes in the policy. Some of the
changes to consider are:
-- Request amendment of the "area and boundary" exception (Schedule B,
paragraph 2). To get this amendment, you must furnish a survey and comply
with other requirements of the Company. On the Owner Policy, you must pay
an additional premium for the amendment. If the survey is acceptable to
the Company and if the Company's other requirements are met, your Policy
will insure you against loss because of discrepancies or conflicts in
boundary lines, encroachments or protrusions, or overlapping of
improvements. The Company may then decide not to insure against specific
boundary or survey problems by making special exceptions in the Policy.
Whether or not you request amendment of the "area and boundary" exception,
you should determine whether you want to purchase and review a survey if a
survey is not being provided to you.
-- Allow the Company to add an exception to "rights of parties in
possession." If you refuse this exception, the Company or the title
insurance agent may inspect the property. The Company may except to and
not insure you against the rights of specific persons, such as renters,
adverse owners or easement holders who occupy the land. The Company may
charge you for the inspection. If you want to make your own inspection,
you must sign a Waiver of Inspection form and allow the Company to add
this exception to your Policy.
The entire premium for a Policy must be paid when the Policy is issued. You will
not owe any additional premiums unless you want to increase your coverage at a
later date and the Company agrees to add an Increased Value Endorsement.
COMMITMENT:
1 COMMITMENT NUMBER
2 PROPERTY TYPE
3 COUNTY
4 PURCHASE PRICE
5
6 LOAN AMOUNT
7 EFFECTIVE DATE
8
9
1 05R21235
2 CI
3 439
4 114,000,000.00
5
6 $
7 11/14/2005
8
9
FIRST AMERICAN TITLE INSURANCE COMPANY
SCHEDULE A
Effective Date: November 14, 2005 GF No. 05R21235 XX0
Xxxxxxxxxx No. 05R21235, issued December 12, 2005, 05:00 PM.
1. The policy or policies to be issued are:
(a) OWNER POLICY OF TITLE INSURANCE (Form T-1) $ 114,000,000.00
(Not applicable for improved one-to-four family
residential real estate)
Proposed Insured:
Kan Am Xxxxx Kapitalanlagegesellschaft mbtt, a
German limited liability company, for the
benefit of the Kan Am-grundinvest Fonds, a
German open-end real estate fund sponsored by
Kan Am Xxxxx Kapitalanlagegesellschaft, mbtt, as
their interes
(b) TEXAS RESIDENTIAL OWNER POLICY OF TITLE INSURANCE $
-- ONE-TO-FOUR FAMILY RESIDENCES (Form T-1R)
Proposed Insured:
(c) MORTGAGEE POLICY OF TITLE INSURANCE (Form T-2) $
Proposed Insured:
Proposed Borrower:
(d) TEXAS SHORT FORM RESIDENTIAL MORTGAGEE POLICY OF
TITLE INSURANCE (Form T-2R) $
Proposed Insured:
Proposed Borrower:
(e) MORTGAGEE TITLE POLICY BINDER ON INTERIM
CONSTRUCTION LOAN (Form T-13) $
Proposed Insured:
Proposed Borrower:
(f) OTHER $
Proposed Insured:
REPUBLIC TITLE OF TEXAS, INC.
Countersigned at FORT WORTH, TEXAS. /s/ XXXXXXXX XXXXX
------------------------------
XXXXXXXX XXXXX, ESCROW OFFICER
Authorized Signatory
This commitment is invalid unless the insuring provisions and Schedules A, B,
and C are attached.
Schedule A--Page 1
Texas Dept. of Insurance Form No. T-7
FIRST AMERICAN TITLE INSURANCE COMPANY
GF Number: 05R21235 05R21235
SCHEDULE A
2. The interest in the land covered by this Commitment is:
FEE SIMPLE
3. Record title to the land on the Effective Date appears to be vested in:
RADIOSHACK CORPORATION, a Delaware corporation
4. Legal description of land:
Being a portion of Xxx 0, Xxxxx 0, Xxxxxxxxxx Addition to the City of
Fort Worth according to the Plat thereof recorded in Cabinet A, Slide
8291, Plat Records, Tarrant County, Texas, and being more particularly
described on Exhibit "A" attached hereto and made a part hereof for all
purposes.
Schedule A--Page 2
Texas Dept. of Insurance Form No. T-7
FIRST AMERICAN TITLE INSURANCE COMPANY 05R21235
Exhibit A GF-Number 05R21235
Being an 18.688 acre tract of land, more or less, and being a portion of XXX 0,
XXXXX 0, XXXXXXXXXX XXXXXXXX, XX ADDITION TO THE CITY OF FORT WORTH, COUNTY OF
TARRANT, STATE OF TEXAS AS RECORDED IN PLAT RECORDS, CABINET A, SLIDE 8291, also
being all of XXX 0, XXXXX 0, XXXXXXXXXX XXXXXXXX, XX ADDITION TO THE CITY OF
FORT WORTH, TARRANT COUNTY, ACCORDING TO THE REPLAT THEREOF RECORDED IN CABINET
______, SLIDE __________, PLAT RECORDS OF TARRANT COUNTY, TEXAS.
NOTE: The Company is prohibited from insuring the area or quantity of the land
described herein. Any statement in the above legal description of the area or
quantity of land is not a representation that such area or quantity is correct,
but is made only for informational and/or identification purposes and does not
override Item 2 of Schedule B hereof.
GF Number: 05R21235 FIRST AMERICAN TITLE INSURANCE COMPANY
COMMITMENT FOR TITLE INSURANCE NO. 05R21235
SCHEDULE B
EXCEPTIONS FROM COVERAGE
In addition to the Exclusions and Conditions and Stipulations, your Policy will
not cover loss, costs, attorney's fees and expenses resulting from:
1. [Intentionally Omitted]
2. Any discrepancies, conflicts, or shortages in area or boundary
lines, or any encroachments or protrusions, or any overlapping of
improvements. May be amended to read Shortages in Area in owner
policy upon receipt of approved survey and additional premium, no
charge for amendment in mortgagee policy.
3. Homestead or community property or survivorship rights, if any, of
any spouse of any insured. (Applies to the Owner Policy only.)
4. Any titles or rights asserted by anyone, including, but not limited
to, persons, the public, corporations, governments or other
entities:
a. to tidelands, or lands comprising the shores or beds of
navigable or perennial rivers and streams, lakes, bays,
gulfs or oceans, or
b. to lands beyond the line of the harbor or bulkhead lines
as established or changed by any government, or
c. to filled-in lands, or artificial islands, or
d. to statutory water rights, including riparian rights, or
e. to the area extending from the line of mean low tide to
the line of vegetation, or the rights of access to that
area or easement along and across that area.
(Applies to the Owner Policy only.)
5. Standby fees, taxes and assessments by any taxing authority for the
year 2006 , and subsequent years; and subsequent taxes and
assessments by any taxing authority for prior years due to change in
land usage or ownership, but not those taxes or assessments for
prior years because of an exemption granted to a previous owner of
the property under Section 11.13, Texas Tax Code, or because of
improvements not assessed for a previous tax year. (If Texas Short
Form Residential Mortgagee Policy (T-2R) is issued, that policy will
substitute "which become due and payable subsequent to Date of
Policy" in lieu of "for the year 2006 and subsequent years.")
6. The terms and conditions of the documents creating your interest in
the land.
7. Materials furnished or labor performed in connection with planned
construction before signing and delivering the lien document
described in Schedule A, if the land is part of the homestead of the
owner. (Applies to the Mortgagee Title Policy binder on Interim
Construction Loan only, and may be deleted if satisfactory evidence
is furnished to us before a binder is issued.)
8. Liens and leases that affect the title to the land, but that are
subordinate to the lien of the insured mortgage. (Applies to
Mortgagee Policy (T-2) only.)
9. The Exceptions from Coverage and Express Insurance in Schedule B of
the Texas Short Form Residential Mortgagee Policy (T-2R). (Applies
to Texas Short Form Residential Mortgagee Policy (T-2R) only.
Separate exceptions 1 through 8 of this Schedule B do not apply to
the Texas Short Form Residential Mortgagee Policy (T-2R).
10. The following matters and all terms of the documents creating or
offering evidence of the matters (We must insert matters or delete
this exception.):
a. Easement granted by The Housing Authority of the City of Fort Worth to
City of Fort Worth, filed 08/29/1984, recorded in Volume 7936, Page 942,
Deed Records of Tarrant County, Texas, and as shown on survey of Xxxxx X.
Xxxxxx,
(CONTINUED ON NEXT PAGE)
Texas Dept. of Insurance Form No. T-7
GF Number: 05R21235 FIRST AMERICAN TITLE INSURANCE COMPANY 05R21235
SCHEDULE B PAGE 2
R.P.L.S. #4500, dated 11/28/2005, last revised _____________. [7]
b. Intentionally Deleted. [9]
c. Intentionally Deleted. [15]
d. Easement granted by Texas Electric Service Company to City of Fort Worth,
filed 09/10/1967, recorded in Volume 3725, Page 204, Deed Records of
Tarrant County, Texas, and as shown on survey of Xxxxx X. Xxxxxx, R.P.L.S.
#4500, dated 11/28/2005, last revised _____________. [16]
e. Easement granted by Texas Electric Service Company to Tarrant County Water
Control and Improvement District Number One, filed 01/26/1954, recorded in
Volume 2664, Page 45, Deed Records of Tarrant County, Texas, and as shown
on survey of Xxxxx X. Xxxxxx, R.P.L.S. #4500, dated 11/28/2005, last
revised _____________. [17]
f. Easement granted by Tandy Corporation to City of Fort Worth, filed
08/31/1985, recorded in Volume 12084, Page 2291, Deed Records of Tarrant
County, Texas, and as shown on survey of Xxxxx X. Xxxxxx, R.P.L.S. #4500,
dated 11/28/2005, last revised _____________. [24]
g. Easement granted by Fort Worth Local Development Corporation to City of
Fort Worth, filed 02/12/2004, cc# D204047335, Official Public Records of
Tarrant County, Texas, and as shown on survey of Xxxxx X. Xxxxxx, R.P.L.S.
#4500, dated 11/28/2005, last revised ______________. [30]
h. Easement granted by Fort Worth Local Development Corporation to City of
Fort Worth, filed 02/12/2004, cc# D204047336, Official Public Records of
Tarrant County, Texas, and as shown on survey of Xxxxx X. Xxxxxx, R.P.L.S.
#4500, dated 11/28/2005, last revised ______________. [31]
i. Easement granted by Fort Worth Local Development Corporation to City of
Fort Worth, filed 02/12/2004, cc# D204047337, Official Public Records of
Tarrant County, Texas, and as shown on survey of Xxxxx X. Xxxxxx, R.P.L.S.
#4500, dated 11/28/2005, last revised ______________. [32]
j. Easement granted by Fort Worth Local Development Corporation to City of
Fort Worth, filed 02/12/2004, cc# D204047338, Official Public Records of
Tarrant County, Texas, and as shown on survey of Xxxxx X. Xxxxxx, R.P.L.S.
#4500, dated 11/28/2005, last revised ______________. (Xxxxxx Street cul
de sac) [33]
k. Easement granted by Fort Worth Local Development Corporation to
Southwestern Xxxx Telephone, L.P., filed 05/06/2005, cc# D205129686,
Official Public Records of Tarrant County, Texas, and as shown on survey
of Xxxxx X. Xxxxxx, R.P.L.S. #4500, dated 11/28/2005, last revised
______________. [35]
1. Intentionally Deleted. [38]
(CONTINUED ON NEXT PAGE)
GF Number: 05R21235 FIRST AMERICAN TITLE INSURANCE COMPANY 05R21235
SCHEDULE B Page 3
m. Intentionally Deleted. [39]
n. Intentionally Deleted. [6]
o. Intentionally Deleted. [10]
p. Intentionally Deleted. [13]
q. Intentionally Deleted. [37]
r. Intentionally Deleted. [41]
s. Easements and other matters shown on the Replat filed __________, recorded
in Volume ___________, Page __________, Plat Records of Tarrant County,
Texas. [42]
t. Rights of parties in possession and rights of tenants under any unrecorded
leases or rental agreements. (may be amended or deleted upon execution of
affidavit with respect to parties in possession and tenants at closing.)
[3]
u. Water valves, water meters, fire hydrants, irrigation control valves,
electric manholes, transformer pads, electric boxes, sanitary sewer
manholes, sanitary sewer clean outs, gas manholes, gas meters, gas risers,
telephone manholes, round and square drain inlets, diesel pumps, over and
across subject tract as shown on survey of Xxxxx X. Xxxxxx, R.P.L.S.
#4500, dated 11/28/2005, last revised _________________. [4]
v. Intentionally Deleted. [5]
w. Underground electric supply facilities easement granted by Fort Worth
Local Development Corporation to ONCOR ELECTRIC DELIVERY COMPANY, dated
01/09/2002, filed 11/18/2005, cc# D205348023, Official Public Records of
Tarrant County, Texas. [46]
x. Intentionally Deleted. [43]
y. Intentionally Deleted. [45]
z. This policy will be issued contemporaneously with Policy No. _____________
of (CHICAGO TITLE INSURANCE COMPANY) for $113,000,000.00. The liability of
the Company hereunder is hereby limited to (proportion) of any loss, but
said liability shall not exceed the face amount of this policy. [44]
GF Number: 05R21235 FIRST AMERICAN TITLE INSURANCE COMPANY
COMMITMENT FOR TITLE INSURANCE NO. 05R21235
SCHEDULE C
Your Policy will not cover loss, costs, attorneys fees, and expenses resulting
from the following requirements that will appear as Exceptions in Schedule B of
the Policy, unless you dispose of these matters to our satisfaction, before the
date the Policy is issued:
1. Documents creating your title or interest must be approved by us and must
be signed, notarized and filed for record.
2. Satisfactory evidence must be provided that:
- no person occupying the land claims any interest in that land
against the persons named in paragraph 3 of Schedule A,
- all standby fees, taxes, assessments and charges against the
property have been paid,
- all improvements or repairs to the property are completed and
accepted by the owner, and that all contractors, subcontractors,
laborers and suppliers have been fully paid, and that no mechanic's,
laborer's or materialmen's liens have attached to the property,
- there is legal right of access to and from the land,
- (on a Mortgagee Policy only) restrictions have not been and will not
be violated that affect the validity and priority of the insured
mortgage.
3. You must pay the seller or borrower the agreed amount for your property or
interest.
4. Any defect, lien or other matter that may affect title to the land or
interest insured, that arises or is filed after the effective date of this
Commitment.
5. In accordance with HB 3920, effective 01/01/2004, all deeds and deeds of
trust transferring an interest in real property to or from an individual
must contain the following notice in 12 point bold or uppercase font on
the first page of such instrument. Failure to comply may result in the
documents not being recorded:
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT
BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY
NUMBER OR YOUR DRIVER'S LICENSE NUMBER. [1]
6. With respect to item 2 of Schedule C above, the Company will not except in
any policies to be issued pursuant to this commitment to 'Lack of a right
of access to and from the land'. [11]
7. Require examination of appropriate corporate resolutions of RadioShack
Corporation authorizing this transaction. [12]
8. Company requires satisfactory release or recording of an Abandonment Plat,
as applicable, to issue without exception to the following matters:
Easement granted by The Fort Worth Housing Authority to City of Fort
Worth, filed 12/21/1988, recorded in Volume 9465, Page 1919, Deed Records
of Tarrant County, Texas, and as shown on survey of Xxxxx X. Xxxxxx,
R.P.L.S. #4500, dated 11/28/2005, last revised __________.
Easements reserved in City of Fort Worth Ordinance No. 7727, filed
(CONTINUED ON NEXT PAGE)
Texas Dept. of Insurance Form No. T-7
GF Number: 05R21235 FIRST AMERICAN TITLE INSURANCE COMPANY 05R21235
SCHEDULE C PAGE 2
10/10/2001, recorded in Volume 15190, Page 259, Deed Records, Tarrant
County, Texas, and as shown on survey of Xxxxx X. Xxxxxx, R.P.L.S. #4500,
dated 11/28/2005, last revised __________.
TESCO easements, electric easement, sidewalk easement, RadioShack Circle
private street and access easement, access easements, pedestrian and
restricted vehicular access waterfront easement per Trinity River Vision,
and 20'X 20' public open space easements as shown on the plat recorded in
Cabinet A, Slide 8291, Plat Records of Tarrant County, Texas, and as shown
on survey of Xxxxx X. Xxxxxx, R.P.L.S. #4500, dated 11/28/2005, last
revised ___________.
Easements reserved by Texas Electric Service Company in Deed filed
10/05/1977, recorded in Volume 6333, Page 668, Deed Records, Tarrant
County, Texas, as affected by Gas Facilities easement granted by TXU
Electric Company to TXU Fuel Company and TXU Gas Company, dated
12/14/2001, 12/20/2001, recorded in Volume 15342, Page 157, Official
Public Records of Tarrant County, Texas, and as shown on survey of Xxxxx
X. Xxxxxx, R.P.L.S. #4500, dated 11/28/2005, last revised ______.
Rights, if any, of third parties with respect to the portion of the
subject property lying within the boundaries of Xxxxxx Street cul de sac.
Present Encroachment of multi-story building into easements reserved in
abandoned Valley Street, recorded in Volume 15190, Page 259, Deed Records,
Tarrant County, Texas, as shown on survey of Xxxxx X. Xxxxxx, R.P.L.S.
#4500, dated 11/28/2005, last revised ________.
Present Encroachment of multi-story building into easements reserved by
Texas Electric Service Company, recorded in Volume 6333, Page 668, Deed
Records, Tarrant County, Texas, and Volume 15342, Page 157, Official
Public Records of Tarrant County, Texas, and as shown on survey of Xxxxx
X. Xxxxxx, [47]
FIRST AMERICAN TITLE INSURANCE COMPANY
SCHEDULE D No: 05R21235 Page 1
GF-Number: 05R21235
The following disclosures are made pursuant to Procedural Rule P-21 promulgated
by the State Board of Insurance:
You are entitled to receive advance disclosure of settlement charges in
connection with the proposed transaction to which this Commitment relates. Upon
your request, such disclosure will be made to you. Additionally, the name of any
person, firm, or corporation receiving any sum from the settlement of this
transaction will be disclosed on the closing or settlement statement.
You are further advised that the estimated title premium * is:
Owner Policy $ 229,469.00
Mortgagee Policy $
Endorsement charges $
Other $
Total $ 229,469.00
Of this amount: 15.000% will be paid to the policy issuing Title Insurance
Company; 85.000% will be retained by the issuing Title Insurance Agent; and the
remainder of the estimated premium will be paid to other parties as follows:
none to other parties
* The estimated premium is based upon information furnished us as of the date of
this Commitment for Title Insurance. Final determination of the amount of
premium will be made at closing in accordance with the Rules and Regulations
adopted by the State Board of Insurance.
UNDERWRITER
First American Title Insurance Company, A California Corporation
(wholly owned subsidiary of The First American Corporation, a public
company).
DIRECTORS:
X.X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxx, J. Xxxxx Xxxxxxx, Xxxxxxx
X. Xxxxx, Xxxxx X. Xxxx, Xxxxx X. Xxxxxxx, Xx., Xxxx X. Xxx, Xx., Xxxxx X.
X'Xxxxx, Xxxxxx X. Xxxxx, X. Xxx Xxxxxxxx, Xxxxxxx X. Xxxxxx and Xxxxxxxx
X. Xxxxxxxxx
OFFICERS:
Chairman of the Board and Chief Executive Officer: Xxxxxx X. Xxxxxxx;
President: Xxxxx X. XxXxx; Senior Executive Vice President and Chief
Financial Officer: Xxxxxx X. Xxxxxxx; Executive Vice President and Chief
Operating Officer: Xxxxxx X. Xxxxxxx; Executive Vice President, Lenders
Services: Xxxx X. Xxxxxxxxx; Executive Vice President, Technology: Xxxx X.
Xxxxxxxxxx; Executive Vice President, Title Insurance and Services: Xxxx
X. Xxxxxxx; Senior Vice President and General Counsel: Xxxxxxx X.
XxXxxxxxx; Senior Vice President and Chief Information Officer: Xxxxx X.
Xxxx; Senior Vice President and National Litigation Counsel: Xxxxxxx X.
Xxxxxxxx; Vice President, Secretary and Corporate Counsel: Xxxx X.
Xxxxxxx; Vice President, Corporate Communications: Jo Xxxx Xxxxx; Vice
President Regulatory Counsel and Special Counsel: Xxxxx X. Xxxxxxx; Vice
President and Controller: Xxxx X. Xxxxxxx
DIRECT OPERATIONS:
Republic Title of Texas, Inc. (Dallas, TX)
Xxxxxxx X. Xxxxxx, Chairman of the Board
Xxxx Xxxxxxxxx, Vice Chairman
Xxxx X. Xxxxxxx, Chief Executive Officer
Xxxxx X. Xxxxxxx, President and Chief Operating Officer
Xxxx Xxxxxxxx, Executive Vice President
Xxxxxx Xxxxxxxx, Secretary/Treasurer
G.F. NO. 05R21235 FW2
POLICY NO. 05R21235
DELETION OF ARBITRATION PROVISION
(Not applicable to the Texas Residential Owner Policy)
ARBITRATION is a common form of alternative dispute resolution. It can be a
quicker and cheaper means to settle a dispute with your Title Insurance Company.
However, if you agree to arbitrate, you give up your right to take the Title
Company to court and your rights to discovery of evidence may be limited in the
arbitration process. In addition, you cannot usually appeal an arbitrator's
award.
YOUR POLICY CONTAINS AN ARBITRATION PROVISION (SHOWN BELOW). IT ALLOWS YOU OR
THE COMPANY TO REQUIRE ARBITRATION IF THE AMOUNT OF INSURANCE IS $1,000,000 OR
LESS. IF YOU WANT TO RETAIN YOUR RIGHT TO XXX THE COMPANY IN CASE OF A DISPUTE
OVER A CLAIM, YOU MUST REQUEST DELETION OF THE ARBITRATION PROVISION BEFORE THE
POLICY IS ISSUED. YOU CAN DO THIS BY SIGNING THIS FORM AND RETURNING IT TO THE
COMPANY AT OR BEFORE THE CLOSING OF YOUR REAL ESTATE TRANSACTION OR BY WRITING
TO THE COMPANY.
The arbitration provision in the Policy is as follows:
"Unless prohibited by applicable law or unless this arbitration section is
deleted by specific provision in Schedule B of this policy, either the
Company or the Insured may demand arbitration pursuant to the Title
Insurance Arbitration Rules of the American Arbitration Association.
Arbitrable matters may include, but are not limited to, any controversy or
claim between the Company and the Insured arising out of or relating to
this Policy, and service of the Company in connection with its issuance or
the breach of a policy provision or other obligation. All arbitrable
matters when the Amount of Insurance is $1,000,000 or less SHALL BE
arbitrated at the request of either the Company or the Insured, unless the
Insured is an individual person (as distinguished from a corporation,
trust, partnership, association or other legal entity). All arbitrable
matters when the Amount of Insurance is in excess of $1,000,000 shall be
arbitrated only when agreed to by both the Company and the Insured.
Arbitration pursuant to this Policy and under the Rules in effect on the
date the demand for arbitration is made or, at the option of the Insured,
the Rules in effect at the Date of Policy shall be binding upon the
parties. The award may include attorneys' fees only if the laws of the
state in which the land is located permit a court to award attorneys' fees
to a prevailing party. Judgment upon the award rendered by the
Arbitrator(s) may be entered in any court having jurisdiction thereof.
The Law of the situs of the land shall apply to any arbitration under the
Title Insurance Arbitration Rules.
A copy of the Rules may be obtained from the Company upon request."
I request deletion of the Arbitration provision.
__________________________ ________________________
SIGNATURE DATE
Texas Dept. of Insurance Form No. T-7
IMPORTANT NOTICE
FOR INFORMATION, OR
TO MAKE A COMPLAINT
CALL OUR TOLL-FREE TELEPHONE NUMBER
0-000-000 7826
ALSO
YOU MAY CONTACT
THE TEXAS DEPARTMENT
OF INSURANCE AT
0-000-000-0000
to obtain information on:
1. filing a complaint against an insurance company or agent,
2. whether an insurance company or agent is licensed,
3. complaints received against an insurance company or agent,
4. policyholder rights, and
5. a list of consumer publications and services available through the
Department.
YOU MAY ALSO WRITE TO
THE TEXAS DEPARTMENT OF INSURANCE
P. O. XXX 000000
XXXXXX, XXXXX 00000-0000
FAX NO. (000) 000-0000
AVISO IMPORTANTE
PARA INFORMACION, O
PARA SOMETER UNA XXXXX
LLAME AL NUMERO GRATIS
1-800-347-7826
TAMBIEN
PUEDE COMUNICARSE CON
EL DEPARTAMENTO DE SEGUROS
DE TEXAS AL
0-000-000-0000
para obtener informacion sobre:
1. como someter una xxxxx en contra de una compania de seguros o agente de
seguros,
2. si una compania de seguros o agente de seguros tiene licencia,
3. quejas recibidas en contra de una compania de seguros o agente de seguros,
4. los derechos del asegurado, y
5. una lista de publicaciones y servicios para consumidores disponibles a
traves del Departamento.
TAMBIEN PUEDE ESCRIBIR AL
DEPARTAMENTO DE SEGUROS DE TEXAS
P. O. BOX 149104
XXXXXX, XXXXX 00000-0000
FAX NO. (000) 000-0000
EXHIBIT J
Easement for Public Access
(Follows this Page)
EASEMENT FOR PUBLIC ACCESS
STATE OF TEXAS Section
Section KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TARRANT Section
That for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, RADIOSHACK CORPORATION, a Delaware corporation
(herein styled "GRANTOR") does hereby GRANT, SELL, and CONVEY unto the CITY OF
FORT WORTH, a home rule municipal corporation organized under the laws of the
State of Texas, (herein styled "GRANTEE"), its successors and assigns, a
non-exclusive right-of-way and easement, as limited by the terms hereof, to use
the surface of the land situated in the County of Tarrant, State of Texas
described on the attached Exhibit "A" (the "Easement Tract") for the purpose of
promoting the City of Fort Worth, the County of Tarrant (the "County") and/or
Fort Worth's civic and cultural life through the following (the "Permitted
Purposes"): (i) public events organized and sponsored by the Fort Worth Local
Development Corporation (the "FWLDC"); (ii) public events organized and
sponsored by GRANTEE; (iii) public events organized and sponsored by the County;
and (iv) public events organized and sponsored by non-profit organizations that
are organized for the express purpose of promoting the civic interests of the
GRANTEE, the County or the FWLDC; subject at all times to the general use,
access and control by GRANTOR for any and all purposes related to the
construction, occupancy, use, maintenance, repair and/or alteration of its
office facilities and related facilities and properties located on, and adjacent
to, the Easement Tract. GRANTEE shall have reasonable rights of ingress to, and
egress from, the Easement Tract for the Permitted Purposes.
TO HAVE AND TO HOLD unto said GRANTEE, its successors and permitted
assigns, for a term of twenty (20) years from the Effective Date.
GRANTEE will have only those rights and benefits as are necessary for the
use of the rights herein granted according to the Permitted Purposes. All of
such rights are expressly subject to the following: (i) all events shall be
scheduled with and approved by GRANTOR; (ii) no event by parties other than
GRANTEE, County or FWLDC shall have a commercial purpose; (iii) no event shall
materially interfere with, or adversely affect, GRANTOR's business operations at
and adjacent to the Easement Tract or GRANTOR's usual and customary uses of the
Easement Tract or GRANTOR's adjacent properties and buildings; and (iv) the
event organizers shall agree to comply with GRANTOR's reasonable regulations,
which GRANTOR may adopt and amend from time-to-time, regarding the time, place
and manner of any event to be conducted on the Easement Tract. These regulations
may include, but are not necessarily limited to, the following: restrictions on
types of use; restrictions on hours of use; restrictions on routes of ingress
and egress; provision of and payment for appropriate levels of insurance;
provision of reasonable indemnities; the payment for any costs and expenses for
event set-up, safety precautions, security and clean-up; payment of other
expenses related to any such event; and such other requirements and restrictions
that GRANTOR may establish from time-to-time in its sole discretion.
No use of the Easement Tract by the public shall give rise to any
prescriptive rights in the public to use the Easement Tract. All use of the
Easement Tract other than by GRANTOR, whether or not in compliance with the
restrictions stated herein or in GRANTOR's regulations, shall be use under this
Easement and shall not be open and adverse use. Failure by GRANTOR to enforce
any restriction or regulation shall not affect or limit the provisions of this
paragraph.
Notwithstanding the foregoing, GRANTOR reserves all rights to use the
Easement Tract for any and all purposes as determined in the reasonable judgment
of GRANTOR. Without in any way limiting the foregoing, GRANTOR reserves the
right to place sidewalks, driveways, structures, signage, lighting,
architectural features, landscaping, and other permanent and non-permanent
structures over and across the Easement Tract, and to place utilities and other
structures under the Easement Tract, and to temporarily, and from time-to-time,
restrict or prohibit access to the Easement Tract in order to repair, maintain,
modify, add to, remove and replace any or all such structures.
GRANTOR shall maintain and repair the Easement Tract, and GRANTEE shall
not be responsible for the maintenance or repair thereof.
All covenants and agreements herein contained will extend to and be
binding upon the respective legal representatives and successors of GRANTOR and
GRANTEE and upon the assigns of GRANTOR. This Easement is not assignable by
GRANTEE, in whole or in part.
WITNESS THE EXECUTION HEREOF on this day of December, 2005 (the "Effective
Date").
GRANTOR:
RADIOSHACK CORPORATION
By: _____________________________________
Xxxxxxx Xxxxxx, III
Vice President-Corporate Real
Estate Operations
STATE OF TEXAS Section
Section
COUNTY OF TARRANT Section
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxxxxx Xxxxxx, III , the Vice President - Corporate Real Estate Operations of
RadioShack Corporation, a Delaware corporation, known to me to be the person
whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed the same for the purposes and consideration therein
expressed, in the capacity therein stated, and as the act and deed of said
company.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this day of December, 2005.
___________________________________________
Notary Public in and for the State of Texas
My Commission expires:
EXHIBIT "A"
Description of Easement Tract
BEING a tract of land situated in the Xxx 0, Xxxxx 0, Xxxxxxxxxx Addition, as
recorded in Cabinet A, Slides 8291, Plat Records, Tarrant County, Texas and
being more particularly described by metes and bounds as follows:
BEGINNING at the intersection of the northerly right-of-way line of X. Xxxxxxx
Street with the westerly right-of-way line of X. Xxxxxx Street, said point being
a City of Fort Worth brass monument stamped #98, found;
THENCE S 60(0)00'00"W, 448.04 feet along the northerly right-of-way line of said
X. Xxxxxxx Xxxxxx to the beginning of a non-tangent curve to the right;
THENCE with said non-tangent curve to the right, through a central angle of
43(0)15'32", having a radius of 270.82 feet, the long chord of which bears N
02(0)40'52"W, 199.65 feet, an arc distance of 204.47 feet to the beginning of a
non-tangent curve to the right;
THENCE with said non-tangent curve to the right , through a central angle of
42(0)22'01", having a radius of 221.79 feet, the long chord of which bears N
27(0)42'12"W, 160.29 feet, an arc distance of 164.00 feet;
THENCE S 53(0)40'45"E, 15.05 feet to the beginning of a non-tangent curve to the
left;
THENCE with said non-tangent curve to the left, through a central angle of
36(0)29'28", having a radius of 211.00 feet, the long chord of which bears S
32(0)19'54"E, 132.12 feet, an arc distance of 134.38 feet to the beginning of a
non-tangent curve to the right;
THENCE with said non-tangent curve to the right, through a central angle of
39(0)55'16", having a radius of 272.55 feet, the long chord of which bears N
43(0)40'12"E, 186.08 feet, an arc distance of 189.90 feet to the beginning of a
non-tangent curve to the right;
THENCE with said non-tangent curve to the right, through a central angle of
02(0)46'48", having a radius of 955.73 feet, the long chord of which bears S
50(0)43'13"E, 46.37 feet, an arc distance of 46.37 feet to the beginning of a
non-tangent curve to the left;
THENCE with said non-tangent curve to the left, through a central angle of
31(0)34'51", having a radius of 209.94 feet, the long chord of which bears S
53(0)48'31"W, 114.26 feet, an arc distance of 115.72 feet to the beginning of a
non-tangent curve to the left;
THENCE with said non-tangent curve to the left, through a central angle of
24(0)41'56", having a radius of 142.08 feet, the long chord of which bears S
61(0)22'26"E, 60.77 feet, an arc distance of 61.25 feet;
THENCE N 20(0)49'27"E, 6.86 feet to the beginning of a non-tangent curve to the
left;
THENCE with said non-tangent curve to the left, through a central angle of
18(0)54'58", having a radius of 245.71 feet, the long chord of which bears S
81(0)45'13"E, 80.75 feet, an arc distance of 81.12 feet to the beginning of a
non-tangent curve to the left;
THENCE with said non-tangent curve to the left, through a central angle of
229(0)18'01", having a radius of 20.10 feet, the long chord of which bears N
45(0)06'10"E, 36.53 feet, an arc distance of 80.43 feet;
THENCE N 17(0)17'47"E, 10.87 feet;
THENCE N 79(0)45'42"W, 7.43 feet;
THENCE N 46(0)13'37"W, 44.37 feet to the beginning of a non-tangent curve to the
right;
THENCE with said non-tangent curve to the right, through a central angle of
11(0)51'58", having a radius of 67.85 feet, the long chord of which bears N
70(0)14'54"E, 14.03 feet, an arc distance of 14.05 feet to the beginning of a
non-tangent curve to the left;
THENCE with said non-tangent curve to the left, through a central angle of
06(0)14'12", having a radius of 879.03 feet, the long chord of which bears N
48(0)41'53"W, 95.63 feet, an arc distance of 95.68 feet to the beginning of a
non-tangent curve to the right;
THENCE with said non-tangent curve to the right, through a central angle of
11(0)14'13", having a radius of 272.55 feet, the long chord of which bears N
71(0)41'17"E, 53.37 feet, an arc distance of 53.45 feet to the beginning of a
compound curve to the right;
THENCE with said compound curve to the right, through a central angle of
27(0)32'14", having a radius of 154.12 feet, the long chord of which bears S
89(0)46'37"E, 73.36 feet, an arc distance of 74.07 feet;
THENCE S 76(0)04'11"E, 45.53 feet returning to the westerly right-of-way line of
said X. Xxxxxx Street;
THENCE S 30(0)00'00"E, 163.75 feet along the westerly right-of-way line of said
X. Xxxxxx Xxxxxx to the POINT OF BEGINNING and containing 80,275 square feet or
1.843 acres of land more or less.
EXHIBIT K
[Attach Seller's Title Affidavit]
AFFIDAVIT AS TO DEBTS, LIENS AND POSSESSION
STATE OF TEXAS Section
COUNTY OF __________ Section
BEFORE ME, the undersigned authority, on this day personally appeared the
undersigned, ____________________ ("Affiant"), being the ________________ of
Radioshack Corporation, a Delaware corporation (the "Owner"), who on his/her
oath, deposes and says, as follows:
1. Affiant is a duly authorized representative of Owner and, in that
capacity, is authorized to act on behalf of Owner in all matters relating to the
sale, disposition, financing and leaseback of the real estate identified on
Exhibit A attached hereto (the "Property") and more particularly described in
that certain Title Commitment No. 05R21235 (the "Commitment").
2. There are no parties occupying, renting, leasing, residing or
possessing the Property or any portion thereof, nor is the Affiant aware of any
parties claiming title to the Property or any portion thereof by reason of
adverse possession except as follows:
See Schedule of Leases attached hereto as Exhibit B
3. No unpaid debts for plumbing fixtures, water heaters, swimming pool,
furnaces, air conditioners, radio or television antennae, carpeting, rugs, lawn
sprinkling systems, venetian blinds, window shades, draperies, electric
appliances, fences, street paving assessments, or any and all other personal
property or fixtures that are located on the Property, and that no such items
have been purchase on time payment contracts and there are no security interests
on the Property secured by financing statements, security agreements or
otherwise except as follows: NONE
4. No liens of any kind against the Property, except the following: NONE.
5. All labor and material used in the construction of improvements on the
Property have been paid for and there are now no unpaid labor or material claims
against the improvements or the Property upon which same are situated, and the
undersigned hereby declares that all sums of money due for the erection of
improvements have been fully paid and satisfied.
6. There are no paving liens of any kind or character or claims for paving
outstanding against the Property. Owner has signed no petitions for paving of
the street or alley adjoining the Property and know of no petition being
circulated for the pavement of the streets, alley or sidewalks adjacent to the
Property. No proceedings in bankruptcy by or against the Owner are pending and
Owner has not made an assignment for the benefit of creditors.
7. There are no Abstracts of Judgment, State or Federal Tax Liens of
record or Bankruptcy Proceedings against the Owner in Tarrant County or
elsewhere, nor are there any outstanding real estate liens or delinquent taxes
of any type against the Property except as stated herein. Owner is not indebted
to the State of Texas for any penalties or wages pursuant to a final
order of the Texas Work Force Commission; and neither Owner nor the Property is
subject to a claim under the Medicaid Estate Recovery Program.
8. There are no unrecorded contracts, deeds, mortgages, mechanic's liens,
options of any kind, including but not limited to options to purchase or lease,
rights of first refusal or requirements of prior approval of a future purchaser
or occupancy, rights of reentry, rights of reverter, or rights of forfeiture
affect the Property or improvements thereon, which are not shown in the
referenced Commitment.
Notwithstanding anything to the contrary, this Affidavit is subject to all
matters shown on the Commitment, that certain survey of the Property prepared by
Xxxxxx & Xxxxxxx, Inc., dated November 28, 2005 and the plat of the Property
filed in the Plat Records of Tarrant County, Texas on ______________________,
2005.
Affiant realizes that these representations are made to induce Republic
Title of Fort Worth, Texas, as agent for First American Title Insurance Company
and its underwriter (collectively, the "Company"), to insure title to the
Property, the Purchaser to purchase the Property and any lender to finance the
Property. Further, Affiant realizes that the Company are relying on the truth of
said statements herein made.
EXECUTED this the ___ day of __________, 2005.
By: _____________________________________
Name: ___________________________________
Its: ____________________________________
STATE OF TEXAS )
)
COUNTY OF TARRANT )
This instrument was acknowledged before me on this __ day of ___________,
2005, by Affiant on behalf of Radioshack Corporation, a Delaware corporation.
_________________________________________
Notary Public
Printed Name of Notary
_________________________________________
[NOTARIAL SEAL]
2
EXHIBIT A
Legal Description
EXHIBIT B
Schedule of Leases
Lease Agreement by and between RadioShack Corporation as landlord, and EECU as
tenant, dated effective as of November 15, 2004.
Lease Agreement by and between RadioShack Corporation as lessor and Circle R
Media, L.L.C. as lessee, dated effective December 31, 2003.
EXHIBIT L
[Attach Preliminary Plat delivered to the City of Forth Worth]
[FLOOR PLAN]
[FLOOR PLAN]
EXHIBIT M
Form of Side Letter
(Follows this Page)
December ___, 2005
RadioShack Corporation
000 XxxxxXxxxx Xxxxxx, XX XX0-000
Xxxx Xxxxx, Xxxxx 00000
Attn.: Vice President - Corporate Real Estate
RE: LEASE, DATED DECEMBER __, 2005 BETWEEN ______________________, AS
LANDLORD (THE "LANDLORD"), AND RADIOSHACK CORPORATION, AS TENANT
(THE "TENANT"), FOR PREMISES CONSISTING OF 18.688 ACRES AND
IMPROVEMENTS THEREON LOCATED IN FT. WORTH, TEXAS (THE "LEASE")
Gentlemen and Ladies:
This letter confirms our agreement that at any time on or before March 31,
2006, if (i) the Tenant is not then in default under the Lease and (ii) if any
provisions set forth in Section 44 of the Lease or in any other portion of the
Lease that specifically references or addresses the Letter of Credit dealt with
in Section 44 of the Lease (collectively, the "Letter of Credit Provisions")
will not permit, in the opinion of the Tenant's independent external auditors,
the Lease to be characterized as an "operating lease" under applicable tax and
accounting rules, regulations and standards, at the written request of Tenant,
the Landlord will work together in good faith with the Tenant to develop an
alternative arrangement with respect to the subject matter of any applicable
Letter of Credit Provision (and to amend the Lease in accordance therewith)
provided that such alternative arrangement does not, in Landlord's sole
discretion, diminish or impair the security or the economic protections afforded
to the Landlord by the Letter of Credit Provisions in the Lease.
Further, the Tenant agrees that it will pay or reimburse to the Landlord
all fees and expenses payable to the Landlord's attorneys, accountants and other
professionals and consultants for their services rendered to the Landlord after
the date hereof in connection with the matters described in the preceding
paragraph, but not exceeding the amount of $100,000.
Page 2
Please execute this letter in the space provided below to indicate your
agreement to the foregoing.
Very truly yours,
[NAME OF LANDLORD]
By: _____________________________________
Name: ___________________________________
Title: __________________________________
AGREED:
RADIOSHACK CORPORATION
By: _________________________
Name: _______________________
Title: ______________________
SCHEDULE 4(c)(3)
DUE DILIGENCE DOCUMENTS
Documents provided or made available to West Wind Capital Partners (Shak
Presswala - Associate Acquisitions):
RadioShack Property Tax Xxxxxxxx dated 10/14/04 & 6/3/05
Certificates of Occupancy (copies sent)
Service Contracts
AHI Facility (copy sent)
BJJ&A Xxxx
Xxxx & Xxxxxx (copy sent)
Xxxxxx Service Co
Xxxxxxx Window Cleaning (copy sent)
Data Star
Guckenheimer Enterprises (copy sent)
Xxxxx Pest Control
Starbucks (copy sent)
Thyssenkrupp Elevator (copy sent)
Tanseco
Valley Crest Landscape (copy sent)
Waste Management
Water Consultants of Texas
As-built drawings of the campus sent by Eastdil Realty Company, L.L.C. (CAD CD
and PDF CD)
Also, Shak Presswala had access to the documents in the Document Room including:
as-built drawings, construction drawings, original construction specification
books, warranty books, operating and maintenance manuals, punch lists, test and
balance reports and service contracts on the campus.
Documents provided or made available to Desman Associates (Xxxxx Xxxxxxx)
As-built Parking Garage drawings:
GA2.2 - GA2.5 (copies provided)
GA2.7 (copy provided)
GA5.1 (copy provided)
GS0.01 - GS0.04 (copy provided)
GS2.2 - GS2.8 (copy provided)
Also, Xxxxx Xxxxxxx had access to the documents in the Document Room including:
as-built drawings, construction drawings, original construction specification
books, warranty books, operating and maintenance manuals, punch lists, test and
balance reports and service contracts on the campus.
Documents provided or made available to IVI International, Inc. (Xxxxx Xxxxx,
P.E. - Senior Project Manager, Xxxxx Xxxxxx, R.A. - Senior Project Manager,
Xxxxxx Xxxx Xxxxxx, X.X. - Senior Project Manager)
and
IVI Due Diligence Services, Inc. (Yolart Xxxxx - Professional Associate)
and
Marketable Ventures (Xxxxx Xxxxxx, P.E. - Principal Engineer)
Storage tank registration (copy sent)
Sheet Core Structural Sheet No S0.01 General Notes (copy sent)
Geotechnical Engineering Report No. 94025155 (copy sent)
Elevator Inspection Certificates (copy sent)
Campus Conference and Training Room Matrix (copy sent)
Warranty Book Table of Contents (copy sent)
Warranty Book was reviewed over 3 days
Tab 6 - Architectural pre-cast concrete (copy sent)
Tab 24 - Building maintenance equipment supports (copy sent)
Tab 27 - Performance bond (copy sent)
Tab 34 - Waterproofing & sealants (copy sent)
Tab 44 - Structural steel (copy sent)
Tab 45 - Exterior walls (copy sent)
NFRC label certificates (copy sent)
Tab 58 - Post tensioning (copy sent)
Tab 59 - Roof Membrane (copy sent)
Tab 64 - Elevators (copy sent)
Tab 66 - EIFS systems (copy sent)
Architects certificate of substantial completion (copy sent)
Certificates of Occupancy (copy sent)
Elevator inspection certificates (copy sent)
Summary of waivers of lien from contractor & subcontractors (copy sent)
Environmental report - Land Due Diligence Report - dated June 27, 2001 which
includes Phase 1 and Phase 2 (copy sent)
Punch lists
Final punch lists - front signoff page for all buildings (copies given)
As built drawings CAD CD and PDF CD (sent by Eastdil Realty Company, L.L.C.)
Underground Tunnel Building A AS2.0
Xxxxx 0 Xxxxx Xxxx Xxxxxxxx X AS2.1
Shell and Core Electrical AS-built
Xxxxx 0-0 Xxxxx Xxxx XX0.0, XX0.0
Xxxxx 0 Xxxxx Plan DS2.11
Mechanical As-Built - Buildings A, B, C, D, E, G
Civil and Landscape
Site Plans Overview
Operating and Maintenance Manuals
Test and Balance Booklets
Also, the IVI team had access to the documents in the Document Room including:
as-built drawings, construction drawings, original construction specification
books, warranty books, operating and maintenance manuals, punch lists, test and
balance reports and service contracts on the campus.
