EXHIBIT 10.17
SUBLEASE
This SUBLEASE ("Sublease") is made and entered into as of this 7th
day of June, 2002 (but shall be effective as of the Sublease Commencement Date
(as hereinafter defined)), by and between CANDLE CORPORATION, a California
corporation ("Sublandlord") and FRANKLIN BANK, S.S.B, a Texas corporation
("Subtenant"), with respect to the following matters:
RECITALS
A. FRAYDUN REALTY CO., a New York limited partnership as landlord
("Landlord"), and Sublandlord, as tenant ("Tenant"), entered into that certain
(i) Lease Agreement dated June 3, 1991, (ii) Tenant's Letter of Acceptance of
Tenant Improvements dated Xxxxxx 00, 0000, (xxx) Amendment to Lease dated
October 13, 1993 ("First Amendment"), (iv) Letter of Agreement dated February
13, 1995, (v) Second Amendment to Lease Agreement dated March 15, 1995 and
executed May 30, 1995 ("Second Amendment"), (vi) Acknowledgment of First and
Second Amendments to Lease Commencement dated August 29, 1995, (vii) Letter
rejecting First Right of Refusal on Xxxxx 000 dated July 6, 2000, (viii) Letter
confirming Commencement Date and Expiration Date for the Second Amendment to
Lease Agreement dated July 19, 2000, and (ix) Third Amendment to Lease Agreement
dated July 20, 2000 and executed July 28, 2000 ("Third Amendment")
(collectively, the "Master Lease") whereby Landlord leased to Tenant the 6th
Floor ("Master Premises") of the building located at 0000 Xxxxxxxx, Xxxxxxx,
Xxxxx (the "Building"), as more particularly described in the Master Lease, upon
the terms and conditions contained therein. All capitalized terms used herein
shall have the same meaning ascribed to them in the Master Lease unless
otherwise defined herein. A copy of the Master Lease is attached hereto as
Exhibit "A" and made a part hereof.
B. Sublandlord and Subtenant are desirous of entering into a
sublease for a portion of the Master Premises on the terms and conditions
hereafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
covenant and agree as follows:
1. Demise. Sublandlord hereby subleases and demises to
Subtenant and Subtenant hereby hires and subleases from Sublandlord a portion of
the Master Premises consisting of approximately 10,328 square feet of rentable
area located on the Sixth (6th) Floor of the Building, all as shown on Exhibit
B attached hereto (collectively, the "Premises"), together with the
non-exclusive right to use the kitchen area (as provided in Section 4 herein)
upon and subject to the terms, covenants and conditions hereinafter set forth,
together with during the term of this Agreement.
2. Sublease Term. The term ("Term") of this Sublease
shall commence the earlier of (a) June 15, 2002, or (b) one (1) business day
after Landlord has delivered its written consent of this Sublease to Sublandlord
and Subtenant (the "Sublease Commencement Date") and expire, unless sooner
terminated as provided hereinafter, on August 31, 2005 (the "Sublease Expiration
Date"). Notwithstanding the foregoing, this Sublease shall not be effective
unless
Landlord's consent to the Sublease has been obtained by Sublandlord for
Subtenant's sublease of the Premises.
3. Use. The Premises shall be used and occupied by
Subtenant for the uses permitted under and in compliance with Article 3 of the
Master Lease, and for no other purpose.
4. Use of Kitchen Area. Subtenant and its employees
shall also have a non exclusive right to use at no additional charge to
Subtenant, in common with others entitled to such use, the existing kitchen area
located in the Master Premises. Under no circumstances shall the right herein
granted to use the kitchen area be deemed to include the right to store any of
Subtenant's property, temporarily or permanently, in said areas, other than
miscellaneous articles appropriate to the kitchen area such as coffee mugs and
food items. Sublandlord shall not be held responsible for any missing personal
items of Subtenant and its employees in the kitchen area. Any such storage shall
be permitted only by the prior written consent of Sublandlord or Sublandlord's
designated agent, which consent may be revoked at any time. In the even that any
unauthorized storage shall occur then Sublandlord shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove the property and charge the cost to Subtenant, which cost shall be
immediately payable upon demand by Sublandlord.
5. Subrental - Base Rent and Additional Rent & Purchase
of Furnishings.
(a) Base Rent. Beginning with the Sublease
Commencement Date and thereafter during the Term of this Sublease and ending on
the Sublease Expiration Date, Subtenant shall pay to Sublandlord, on a monthly
basis, Base Rent as follows:
------------------------------------------------------------------
PERIOD $/RSF /YR ANNUAL MONTHLY
------------------------------------------------------------------
6/15/02-8/31/05
------------------------------------------------------------------
On the Sublease Commencement Date, Subtenant shall deliver to
Sublandlord an amount equal to one (1) months Base Rent in the sum of Eleven
Thousand One Hundred Eighty Eight and 67/100 Dollars ($11,188.67) ("Prepaid
Rent"). Sublandlord shall credit the Prepaid Rent towards the first months Base
Rent due and payable, after the application of the rent concession (as set forth
below).
(b) Rent Concession. Subtenant shall be entitled
to four (4) months rent concession which shall be applied by Sublandlord against
Base Rent due and payable by Subtenant during the first four (4) months of the
Term.
(c) Additional Rent. In addition to the Base
Rent herein reserved, Subtenant agrees to pay to Sublandlord additional rental
calculated as follows:
(i) 51. 22% (the "Expense Percentage")
of the amounts payable by Sublandlord pursuant to Article 8 of the Master Lease
on account of increases over the Base Year (as hereinafter defined) in Taxes,
Basic Costs (as defined in the Master Lease), Operating
2
Expenses (as defined in the Master Lease) and Controllable Expenses (as defined
in the Master Lease) (collectively hereinafter referred to as the "Expenses").
Expenses shall be payable by Subtenant to Sublandlord in the same manner (i. e.,
a single annual installment) as corresponding payments are payable by
Sublandlord to Landlord under the Master Lease.
(ii) The Base Year shall be the calendar
year 2002.
(iii) All other payments for which
Sublandlord shall become responsible to Landlord under the Master Lease in
respect of the Premises, Subtenant's use or occupancy thereof or by reason of
any act or omission of Subtenant, including, without limitation, any payments
accruing as a result of (i) any increases over the Base Year in insurance
premiums as provided in Article 14 of the Master Lease, resulting from any act
or omission of Subtenant, (ii) any additional rent payable on account of
Subtenant's use of extra heating, ventilation or air conditioning and (iii) any
additional rent payable on account of any services provided to Subtenant, but
expressly excluding any late payment charges, interest, or other payments which
Sublandlord is required to pay Landlord on account of any late payment or
default by Sublandlord under the Master Lease.
(iv) If Subtenant shall fail to pay
within five (5) days following the due date of any installment of Base Rent,
Additional Rent or other costs, charges and sums payable by Subtenant hereunder
(such Additional Rent and other costs, charges and sums, together with Base
Rent, hereinafter collectively referred to as the "Rent"). Subtenant shall pay
to Sublandlord, in addition to such installment of Base Rent or Rent, as the
case may be, as a late charge and as additional rent, a sum equal to interest at
the Applicable Rate (hereinafter defined) per annum on the amount unpaid,
commencing from the date such payment was due to and including the date of
payment. The "Applicable Rate" is the rate equal to the lesser of (a) twelve
percent (12%) per annum, or (b) two (2) percentage points below the maximum
nonusurious interest rate permitted by applicable law.
(v) Sublandlord shall promptly furnish
to Subtenant a copy of each notice or statement from Landlord affecting the
Premises. If Subtenant disputes the correctness of any such notice or statement,
Subtenant shall deliver to Sublandlord written notice of such dispute, which
notice shall identify, in detail, the reasons for such dispute. Upon receipt of
Subtenant's dispute notice, Sublandlord shall notify Landlord of such dispute in
accordance with the provisions of Section 8.3 of the Master Lease. If such
dispute is resolved in Subtenant's favor or, if Sublandlord shall receive any
refund of Additional Rent without a dispute, Sublandlord shall promptly pay to
Subtenant any funds received by Sublandlord in respect thereto (after deducting
from the amount of any such refund all expenses, including court costs and
reasonable attorneys' fees, incurred by Sublandlord in resolving such dispute)
Pending the determination of any such dispute (by agreement or otherwise),
Subtenant shall pay the full amount of Base Rent and Additional Rent in
accordance with this Sublease and the applicable statement or notice of
Landlord.
(d) Prorations. If the Sublease Commencement
Date is not the first (1st) day of a month, or if the Sublease Expiration Date
is not the last day of a month, a prorated installment of monthly Rent based on
a thirty (30) day month shall be paid for the fractional month during which the
Term commenced or terminated.
3
(e) Payment of Rent. Except as otherwise
specifically provided in this Sublease, Rent shall be payable in lawful money
without demand, and without offset, counterclaim, or setoff in monthly
installments, in advance, on the first day of each and every month during the
Term of this Sublease. All of said Rent is to be paid to Sublandlord at its
office at the address set forth in Section 17 herein, or at such other place or
to such agent and at such place as Sublandlord may designate by notice to
Subtenant. Any Additional Rent payable on account of items which are not payable
monthly by Sublandlord to Landlord under the Master Lease is to be paid to
Sublandlord as and when such items are payable by Sublandlord to Landlord under
the Master Lease unless a different time for payment is elsewhere stated herein.
Sublandlord agrees to promptly provide Subtenant with copies of any statements
or invoices received by Sublandlord from Landlord pursuant to the terms of the
Master Lease.
(i) Sublandlord's failure during the
Term to prepare and deliver any statements or bills required to be delivered to
Subtenant hereunder, or Sublandlord's failure to make a demand under this
Sublease shall not in any way be deemed to be a waiver of, or cause Sublandlord
to forfeit or surrender its rights to collect any Rent which may have become due
pursuant to this Sublease during the Term. Subtenant's liability for Rent due
under this Sublease accruing during the Term, and Sublandlord's obligation to
refund overpayments of or adjustments to Rent paid to it by Subtenant, shall
survive the expiration or earlier termination of this Sublease.
(f) Furnishings. On the Sublease Commencement
Date, Subtenant shall purchase from Sublandlord (i) the existing forty-eight
(48) work stations located in the Premises (each, a "Work Station" and
collectively, the "Work Stations"), as more specifically described on Exhibit
"C". attached hereto, at a cost of $300. 00 per work station, and (ii) the
furniture and furnishings for the two (2) existing conference rooms remaining a
part of the Premises (the Work Stations and other furnishings hereinafter
sometimes collectively referred to as the "Furnishings"), as more specifically
listed on Exhibit "C", attached hereto. The cost of all such Furnishings shall
be $14,700.00, which amount shall be remitted to Sublandlord together with the
Prepaid Rent as set forth in Section 5(a) herein. The parties hereby agree and
acknowledge that each Work Station shall include at least one (1) chair and one
(1) telephone. Sublandlord shall execute and deliver to Subtenant a Xxxx of
Sale, without recourse or warranty, in the form attached hereto as Exhibit "D",
covering the Furnishings required to be transferred to Subtenant with respect to
this Sublease which shall be countersigned by Subtenant.
6. Signage. Subject to the terms of the Master Lease,
Subtenant may affix its name on the door of the Premises and a directory strip
in the existing directory located in the lobby area of the Building, at
Subtenant's sole cost and expense. Upon the prior written consent of Landlord,
Subtenant may, at its sole cost and expense, upgrade its door and lobby
directory signage. Subtenant shall remove all such signage upon the expiration
or earlier termination of this Sublease and repair any damage caused by such
removal. If Subtenant fails to do so, Sublandlord may do so at Subtenant's
expense and Subtenant shall reimburse Sublandlord for all actual costs incurred
by Sublandlord to effect such removal.
7. Parking. Subject to the terms of Article 23 of the
Master Lease, as amended by Exhibit "E" of the Third Amendment, Subtenant shall
have the right, during the Term of this Sublease, to use up to a maximum of
fifty-three (53) covered and unassigned
4
parking spaces in the parking facilities of the Building as set forth in
Article 23 of the Master Lease. All such parking privileges shall provided to
Subtenant at no cost and expense.
8. Incorporation of Terms of Master Lease.
(a) This Sublease is subject and subordinate to
the Master Lease. Subject to the modifications set forth in this Sublease, the
terms of the Master Lease are incorporated herein by reference, and shall, as
between Sublandlord and Subtenant (as if they were Landlord and Tenant,
respectively, under the Master Lease) constitute the terms of this Sublease
except to the extent that they are inapplicable to, inconsistent with, or
modified by, the terms of this Sublease. In the event of any inconsistencies
between the terms and provisions of the Master Lease and the terms and
provisions of this Sublease, as between Sublandlord and Subtenant, the terms and
provisions of this Sublease shall govern. Subtenant acknowledges that it has
reviewed the Master Lease and is familiar with the terms and conditions thereof.
(b) For the purposes of incorporation herein,
the terms of the Master Lease are subject to the following additional
modifications:
(i) In all provisions of the Master
Lease (under the terms thereof and without regard to modifications thereof for
purposes of incorporation into this Sublease) requiring the approval or consent
of Landlord, Subtenant shall be required to obtain the approval or consent of
both Sublandlord (which approval by Sublandlord shall not be unreasonably
withheld or delayed) and Landlord.
(ii) In all provisions of the Master
Lease requiring Tenant to submit, exhibit to, supply or provide Landlord with
evidence, certificates, or any other matter or thing, Subtenant shall be
required to submit, exhibit to, supply or provide, as the case may be, the same
to both Landlord and Sublandlord. In any such instance, Sublandlord shall
reasonably determine if such evidence, certificate or other matter or thing
shall be satisfactory.
(iii) Sublandlord shall have no
obligation to restore or rebuild any portion of the Premises after any
destruction or taking by eminent domain. The provisions of Section 12 of the
Master Lease shall apply with regard to Landlord's restoration of the Premises;
provided, however, Subtenant shall have the right to terminate this Lease if
Landlord has not repaired and restored the Premises within ninety (90) days
after such destruction or eminent domain taking.
(iv) Any time this Sublease requires the
action of Landlord and the time period and/or the standard for consent in this
Sublease is more restrictive on Landlord than the time period and/or standard
for consent set forth in the Master Lease, the Master Lease shall control over
this Sublease, and the Master Lease shall supersede any time period set forth in
this Sublease as to both Landlord and Sublandlord and shall supersede any
standard for consent set forth in this Sublease as to Landlord only.
(c) Section 14.4 of the Master Lease is hereby
amended to provide that Subtenant shall procure and provide Landlord and
Sublandlord with a certificate of insurance naming both Landlord and Sublandlord
as named insureds.
5
(d) The following provisions of the Master Lease
are specifically excluded: Articles 1, 2, 4, 20, 21 and 27 in their entirety;
Sections 9.3, 26.19 and 26.20; Exhibit "B", regarding Construction Work to be
Performed in Leased Premises (except with respect to the submittal of plans and
construction of improvements in the event of damage and destruction as provided
in Article 12 of the Master Lease); Articles 7 and 8 of the First Amendment; and
Articles 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Second Amendment. In addition,
references to "Rent" in Article 4 of the Master Lease shall be deemed references
to Rent in Section 5(a) of this Sublease.
9. Subtenant's Obligations. Subtenant covenants and
agrees that except as expressly excluded in the preceding section, all
obligations of Sublandlord under the Master Lease shall be done or performed by
Subtenant with respect to the Premises, except as otherwise provided by this
Sublease, and Subtenant's obligations shall run to Sublandlord and Landlord as
Sublandlord may reasonably determine to be appropriate or be required by the
respective interests of Sublandlord and Landlord. Subtenant agrees to indemnify
Sublandlord and Landlord, and hold it harmless, from and against any and all
claims, damages, losses, expenses and liabilities (including reasonable
attorneys' fees) incurred as a result of the non-performance, non-observance or
non-payment of any of Sublandlord's covenants, warranties, obligations and
payments made by Sublandlord under or required of Sublandlord under the Master
Lease which, as a result of this Sublease, became an obligation of Subtenant. If
Subtenant makes any payment to Sublandlord pursuant to this indemnity, Subtenant
shall be subrogated to the rights of Sublandlord concerning said payment.
Subtenant shall not do, nor permit to be done, any act or thing which is, or
with notice or the passage of time would be, a default under this Sublease or
the Master Lease. Sublandlord agrees to indemnify and hold Subtenant harmless
from and against any and all claims, damages, losses, expenses, and liabilities
(including reasonable attorneys' fees) incurred as a result of the
non-performance, non-observance or non-payment of any of Sublandlord's
obligations under the Master Lease or this Sublease.
10. Sublandlord's Obligations.
(a) Sublandlord's Additional Obligations.
Sublandlord agrees that Subtenant shall be entitled to receive all services and
repairs to be provided by Landlord to Sublandlord under the Master Lease.
Subtenant shall not, under any circumstances, seek nor require Sublandlord to
perform any of such services, nor shall Subtenant make any claim upon
Sublandlord for any damages which may arise by reason of Landlord's default
under the Master Lease. With respect to any obligation to be performed by
Landlord under the Master Lease, Sublandlord shall be obligated, upon receipt of
notice from Subtenant, to use good faith efforts to obtain Landlord's
performance of such obligation and/or enforce Sublandlord's rights against
Landlord for failure to perform; provided, however, that Subtenant shall
reimburse Sublandlord for all costs and expenses, including reasonable
attorneys' fees, incurred by Sublandlord in attempting to obtain Landlord's
performance and/or in enforcing Sublandlord's rights against Landlord for
failure to perform. Any condition resulting from a default by Landlord (after
all applicable cure periods as set forth in the Master Lease) shall not
constitute as between Sublandlord and Subtenant an eviction, actual or
constructive, of Subtenant and no such default shall excuse Subtenant from the
performance or observance of any of its obligations to be performed or observed
under this Sublease, or entitle Subtenant to receive any reduction in or
abatement of the Rent provided for in this Sublease. In furtherance of the
foregoing, Subtenant
6
does hereby waive any cause of action and any right to bring any action against
Sublandlord by reason of any act or omission of Landlord under the Master Lease
unless Sublandlord has failed to make the good faith efforts required by this
Section.
(b) Sublandlord's Remaining Obligations. The
obligations that Subtenant has agreed to perform hereunder are hereinafter
referred to as the "Subtenant's Obligations", and all other obligations of the
"Tenant" under the Master Lease are herein referred to as the "Sublandlord's
Remaining Obligations". Sublandlord agrees to maintain the Master Lease in force
during the entire Term of this Sublease and to pay rent to Landlord in
accordance with the terms of the Master Lease to the extent that failure to
perform the same would adversely affect Subtenant's use or occupancy of the
Premises, subject, however, to any earlier termination of the Master Lease
without the fault or agreement of Sublandlord. Further, Sublandlord agrees to
comply with and perform Sublandlord's Remaining Obligations.
11. Subtenant Improvements and Alterations.
(a) Subtenant shall not make or allow to be made
any alterations, changes or improvements to the Premises or any part thereof
without the prior written consent of Landlord and Sublandlord. Sublandlord, at
its sole cost and expense, shall cause the space to be demised and a double
entry door installed in accordance with the specifications set forth in the
Subtenant Work Letter attached hereto as Exhibit "E" ("Sublandlord Work"). The
Sublandlord Work shall comprise the "Subtenant Improvements", as more
specifically set forth in Exhibit "C". Notwithstanding the foregoing,
Sublandlord shall have no obligation to construct the Sublandlord Work unless
Sublandlord and Subtenant have received Landlord's written consent for
Subtenant's sublease of the Premises.
(b) Any subsequent alterations to the Premises
made by Subtenant shall be hereinafter referred to as "Alterations". Attached
hereto as Exhibit "E" is a conceptual preliminary plan (the "Conceptual
Alterations Plan") indicating the location and extent of certain Alterations
which Subtenant intends (but is not obligated) to install in the Premises at a
later date as yet to be determined. By execution of this Sublease, Landlord and
Sublandlord hereby approve the Conceptual Alterations Plan. Subtenant hereby
acknowledges that final detailed plans, specifications and final construction
drawings for any Alterations are subject to Sublandlord's consent and Landlord's
consent in accordance with the provisions of the Master Lease. Any such
Alterations shall be made in accordance with any and all procedures and
standards required by Landlord and in compliance with the following:
(i) No such Alterations shall proceed
without (x) Subtenant's contractor providing labor and materials bonds(s)
satisfactory to Landlord and Sublandlord, (y) the furnishing to Landlord and
Sublandlord by Subtenant's contractor of a certificate of insurance from an
approved company in an amount of not less than $2,000,000 combined single
limit for public liability and automobile liability, endorsed to show Landlord
and Sublandlord as additional insureds, and (z) detailed plans and
specifications for such work submitted to and approved by Landlord and
Sublandlord.
(ii) The work for such Alterations shall
be done in conformity with a valid building permit when required, a copy of
which shall be furnished to Landlord and
7
Sublandlord before the work is commenced, and any work not acceptable to the
applicable Department of Building and Safety, or not reasonably satisfactory to
Landlord and Sublandlord, shall be promptly replaced at Subtenant's expense.
Notwithstanding any failure by Subtenant to object to any such work, Subtenant
shall have no responsibility therefor.
(iii) All Alterations shall be diligently
and continuously pursued to its completion and be done in a good and workmanlike
manner of good and sufficient materials of a quality of no less than Building
standard and free from any hazardous materials.
(c) Subtenant shall, within thirty (30) days
after completion of such Alterations, provide Landlord and Sublandlord with
as-built plans and specifications for same.
12. Subtenant's Restoration Obligations. Upon the
Sublease Expiration Date or any sooner termination of the Term, Subtenant shall
deliver the Premises to Sublandlord in the same condition it was on the Sublease
Commencement Date, reasonable wear and tear excepted. Any Subtenant Work and
Alterations to the Premises, excepting personal items of Subtenant and its
employees, shall become the property of Sublandlord and shall be surrendered
with the Premises; provided, however, this Section shall not apply to the
Furniture or any other equipment, trade fixtures or furniture owned by
Subtenant, including, but not limited to any vault or other item owned or used
by Subtenant in the course of its business (collectively, "Personal Property").
Notwithstanding the foregoing, in the event Landlord directs Sublandlord to
remove the Subtenant Work and Alterations, Sublandlord may in turn require that
Subtenant remove any and all such Subtenant Work and Alternations, and in such
event, Subtenant shall, on or before the Sublease Expiration Date, remove same
at Subtenant's sole cost and expense and restore or repair in a good and
workmanlike manner any damage to the Premises occasioned by such removal and
restore the Premises to the condition existing prior to such Subtenant Work and
Alterations, normal wear and tear excepted. In the event Subtenant fails to
restore or repair the Premises or to remove its Personal Property and that of
its employees, and restore the Premises as set forth in the preceding sentences,
Sublandlord shall have the right, but not the obligation, to enter the Premises
and perform such restoration, repair or removal at Subtenant's expense and to
charge Subtenant as additional rent for the cost of such work.
13. Security Deposit. On the Sublease Commencement Date,
Subtenant shall deposit with Sublandlord the sum of Eleven Thousand One Hundred
Eighty Eight and 67/100 Dollars ($11,188.67) as security (the "Security
Deposit") for the faithful performance and observance by Subtenant of the terms,
provisions and conditions of this Sublease, including, but not limited to, the
payment of Base Rent and all other items of Rent (including, but not limited to,
Additional Rent) and the surrender of the Premises to Sublandlord as herein
provided. If Subtenant defaults in respect of any of the terms, provisions and
conditions of this Sublease, Sublandlord may apply or retain the whole or any
part of the Security Deposit so deposited, as the case may be, to the extent
required for the payment of any Base Rent or any other item of Rental as to
which Subtenant is in default or for any sum which Sublandlord may expend or be
required to expend by reason of Subtenant's default in respect of any of the
terms, covenants and conditions of this Sublease, including, but not limited to,
any damages or deficiency in the reletting of the Premises, whether such damages
or deficiency accrue or accrues before or after summary proceedings or other
re-entry by Sublandlord. If Sublandlord applies or retains any part of the
Security Deposit so deposited, Subtenant, upon demand, shall deposit with
8
Sublandlord the amount so applied or retained so that Sublandlord shall have the
full deposit on hand at all times during the Term. If Subtenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this Sublease, the Security Deposit, together with accrued interest thereon,
shall be returned to Subtenant after the Expiration Date and after delivery of
possession of the Premises to Sublandlord in the condition required to be
delivered to Landlord under the Master Lease, except as otherwise provided
herein. Subtenant shall not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and neither Sublandlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
14. Holding Over. Unless Subtenant has reached a separate
agreement with Landlord to remain in the Premises, if Subtenant holds over after
the expiration of the Term of this Sublease, with or without the express or
implied consent of Sublandlord, then Subtenant shall be deemed to be occupying
the Premises as a subtenant-at-sufferance, and such sub-tenancy shall not
constitute a renewal hereof or an extension for any further term and, in such
case, the Rent shall be payable at a daily rental of one and one-half (1 1/2)
times the per diem amount of Rent payable by Sublandlord under the Master Lease
for the Master Premises during the last rental period of the lease term under
the Master Lease (and which is applicable for the month preceding the month in
which the Sublease Expiration Date occurs), computed on the basis of a thirty
(30) day month. Such holdover sub-tenancy shall be subject to every other
applicable term, covenant and agreement contained herein. Nothing contained in
this Section shall be construed as consent by Sublandlord to any holding over by
Subtenant, and Sublandlord expressly reserves the right to require Subtenant to
surrender possession of the Premises to Sublandlord, as provided in this
Sublease, upon the expiration or sooner termination of this Sublease. The
provisions of this Section shall not be deemed to limit or constitute a waiver
of any other rights or remedies of Sublandlord provided herein or at law. If
Subtenant fails to surrender the Premises upon the termination or expiration of
this Sublease, in addition to all other liabilities that Subtenant has or may
have with respect to Sublandlord arising therefrom, Subtenant shall protect,
defend, indemnify and hold Sublandlord and Landlord harmless from all loss,
costs (including reasonable attorneys' fees) and liability resulting from
Subtenant's failure to surrender the Premises including, but not limited to the
following: (i) any claims made against Sublandlord by any subsequent tenant of
the Premises, and (ii) any claims made by Landlord against Sublandlord.
15. Default.
(a) In the event Subtenant shall be in default
of any covenant of, or shall fail to honor any obligation under this Sublease,
Sublandlord shall have available to it against Subtenant all of the remedies
available (a) to Landlord under the Master Lease in the event of a similar
default on the part of Sublandlord thereunder or (b) at law.
(b) In the event of any default by Sublandlord,
Subtenant's exclusive remedy shall be an action for damages (Subtenant hereby
waiving the benefit of any laws granting it a lien or claim upon Sublandlord's
property and/or rent due Sublandlord), but prior to any action Subtenant will
give Sublandlord (and any mortgagee of Sublandlord whose name and address is
made known to Subtenant) written notice specifying in detail such default, and
Sublandlord (or Sublandlord's mortgagee) shall thereupon have forty-five (45)
days (plus such
9
additional reasonable period as may be required in the exercise by Sublandlord
or Sublandlord's mortgagee of due diligence) in which to cure any such default.
Unless and until Sublandlord fails to so cure any default after such notice,
Subtenant shall not have any remedy or cause of action by reason thereof. In the
event Sublandlord's mortgagee elects to cure any default by Sublandlord (which
Sublandlord's mortgagee may elect to do, but shall not be obligated to do),
Subtenant will accept such curative action as if such action had been taken by
Sublandlord. All obligations of Sublandlord hereunder will be construed as
covenants, not conditions; and all such obligations will be binding upon
Sublandlord only during the period of this Sublease for the Premises and not
thereafter.
16. Quiet Enjoyment. So long as Subtenant pays all of the
Rent due hereunder and performs all of Subtenant's other obligations hereunder,
Sublandlord shall do nothing to affect Subtenant's right to peaceably and
quietly have, hold and enjoy the Premises.
17. Notices. Anything contained in any provision of this
Sublease to the contrary notwithstanding, Subtenant agrees, with respect to the
Premises, to comply with and remedy any default in this Sublease or the Master
Lease which is Subtenant's obligation to cure, within the period allowed to
Sublandlord under the Master Lease, even if such time period is shorter than the
period otherwise allowed therein due to the fact that notice of default from
Sublandlord to Subtenant is given after the corresponding notice of default from
Landlord to Sublandlord. Sublandlord agrees to forward to Subtenant, promptly
upon receipt thereof by Sublandlord, a copy of each notice including, without
limitation, notices of default received by Sublandlord in its capacity as Tenant
under the Master Lease or from governmental authorities. Subtenant agrees to
forward to Sublandlord, promptly upon receipt thereof, copies of any notices
received by Subtenant from Landlord or from any governmental authorities. All
notices, demands and requests shall be in writing and shall be sent either by
hand delivery or by a nationally recognized overnight courier service (e. g.,
Federal Express), in either case return receipt requested, to the address of the
appropriate party. Notices, demands and requests so sent shall be deemed given
when the same are received. Notices to Sublandlord shall be sent to the
attention of:
Candle Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx,
Director - Global Real Estate and Facilities
with a copy to:
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
10
Notices to Subtenant shall be sent to the attention of:
Franklin Bank, S.S.B.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
with a copy to:
Bracewell & Xxxxxxxxx
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
18. Broker. Sublandlord and Subtenant represent and
warrant to each other that other than Xxxxxxx Xxxxx of Xxxxx Xxxx LaSalle, on
behalf of Sublandlord, and Xxxxxxx X. Xxxxxxxxx, Xx., of Xxxxxxxxx & Associates,
Inc., on behalf of Subtenant, no brokers were involved in connection with the
negotiation or consummation of this Sublease. Each party agrees to indemnify the
other and the Landlord, and hold it harmless, from and against any and all
claims, damages, losses, expenses and liabilities (including reasonable
attorneys' fees) incurred by said party as a result of a breach of this
representation and warranty by the other party.
19. Condition of Premises. Subtenant acknowledges that it
is subleasing the Premises (including the Storage Area) on an "AS-IS" basis and
that Sublandlord is not making any representation or warranty concerning the
condition of the Premises and that Sublandlord is not obligated to perform any
work with respect to the Premises, except as otherwise set forth in Section 11
above. Subtenant acknowledges that it is not authorized to make or do any
alterations or improvements in or to the Premises except as permitted by the
provisions of this Sublease and the Master Lease and that it must deliver the
Premises to Sublandlord on the Sublease Expiration Date in the condition
received from Sublandlord, reasonable wear and tear and damage from casualty
excepted, subject to the terms and conditions set forth in Section 12 above.
20. Consent of Landlord. Article 14 of the Master Lease
requires Sublandlord to obtain the written consent of Landlord to this Sublease.
Sublandlord has sent to Landlord a notice permitting Landlord to recapture the
Premises, and Landlord has verbally indicated it would not recapture the
Premises. If Landlord's written consent to this Sublease has not been delivered
to Sublandlord and Subtenant by June 15, 2002, either party may terminate this
Sublease. In the event of such termination, each of Sublandlord and Subtenant
shall be responsible for its own costs and expenses incurred in connection
herewith.
21. Termination of the Sublease. If for any reason the
term of the Master Lease shall terminate prior to the Sublease Expiration Date,
this Sublease shall automatically be terminated and Sublandlord shall not be
liable to Subtenant by reason thereof unless said termination shall have been
caused by the default of Sublandlord under the Master Lease or this Sublease,
and said Sublandlord default was not as a result of a Subtenant default
hereunder.
11
22. Right of First Offer - Master Premises.
(a) Upon receipt of notice from Sublandlord,
Subtenant shall be entitled to sublease additional space in areas located
adjacent to the Premises which are a part of the Master Premises on the Sixth
(6th) floor of the Building (the "ROFO Space") on a "right of first offer"
basis as provided for in this Section 22. Sublandlord shall provide Subtenant
written notice (the "Availability Notice") of the availability of the ROFO
space. Subtenant shall have ten (10) business days after its receipt of the
Availability Notice (which notice shall identify the location and size of the
ROFO Space) in which Subtenant may give Sublandlord written notice of
Subtenant's acceptance of the ROFO Space on the terms and conditions set forth
in this Section 22 (the "Acceptance Notice"). After the expiration of such ten
(10) business day period, if Subtenant has not given Sublandlord a timely
Acceptance Notice, then Sublandlord shall be free to sublease the ROFO Space to
any other person or entity on the same terms and conditions within ninety (90)
days thereafter. If Sublandlord does not sublease the ROFO Space on the same
terms and conditions as set forth in the Availability Notice within such ninety
(90) day period, Sublandlord shall provide Subtenant with a new Availability
Notice in the manner set forth above.
(b) Up until ten (10) days after Sublandlord
provides Subtenant an Availability Notice with respect to the ROFO Space,
Sublandlord shall not enter into any sublease of the ROFO Space in question with
any other person. If, during such ten (10) day period, Subtenant gives
Sublandlord an Acceptance Notice, Sublandlord and Subtenant, subject to the
consent of Landlord, shall then promptly enter into a sublease of the ROFO Space
on the terms and conditions specified in subparagraph (c) below, which space
shall be made available to Subtenant in its then "AS-IS" condition. The term of
the sublease for the ROFO Space shall commence on the "ROFO Space Commencement
Date" (as defined in subparagraph (e) below), and shall terminate upon the
Sublease Expiration Date.
(c) If Subtenant duly elects to sublease the
ROFO Space then, effective on the ROFO Space Commencement Date, and without
further act of either party hereto, this Sublease shall be deemed amended in the
following respects:
(i) The ROFO Space shall be added to
the Premises, and the term "Premises" as used in the Sublease shall be deemed to
include the ROFO Space;
(ii) Subtenant's Expense Percentage
shall be appropriately increased to reflect the addition of the ROFO Space to
the Premises demised hereunder.
(d) Except as expressly otherwise provided
herein, all of the terms, covenants, conditions, provisions and agreements of
the Sublease and relevant provisions of the Master Lease shall apply to the ROFO
Space.
(e) Base Rent for the ROFO Space shall be at
the same rate per rentable square foot as set forth in Section 5 above.
(f) The ROFO Space Commencement Date shall be
the earlier of (I) ten (10) business days following Sublandlord's delivery of
written evidence of Landlord's approval of adding the ROFO Space to this
Sublease; or (ii) upon such earlier date as Subtenant takes
12
possession of or commences use of the ROFO Space for the conduct of its normal
business operations.
(g) The option to sublease ROFO Space (the "ROFO
Option") is personal to Subtenant as originally named herein and may not be
exercised or assigned, voluntarily or involuntarily, by, or to, any person or
entity other than Subtenant.
(h) Subtenant shall have no right to exercise
the ROFO Option in the event that (I) at the time permitted for the exercise of
such ROFO Option, or at any time prior to the ROFO Space Commencement Date,
Subtenant is in default under any of the provisions of this Lease, or (ii)
Sublandlord has given to Subtenant two (2) or more notices of default under this
Sublease during the twelve (12) month period prior to the time that Sublandlord
provides Subtenant the Availability Notice.
(i) If Subtenant properly exercises the ROFO
Option, Sublandlord and Subtenant shall execute and deliver appropriate
documentation to evidence the addition of the ROFO Space to the Premises
hereunder and to reflect corresponding changes to other Sublease terms.
(j) Subtenant's right of first offer under this
Section 22 shall be subject to the rights of renewal, extension, first refusal
or first negotiation contained in any lease or leases executed by Landlord and
Sublandlord for space in the Building prior to the date hereof, if any.
Furthermore, Subtenant shall have no rights with respect to any other space
within the Building except as specifically provided in the Sublease.
(k) If Subtenant shall exercise the right of
first offer granted herein, Sublandlord does not guarantee that the ROFO Space
Commencement Date will not be delayed if the then existing occupants of the ROFO
Space shall hold over, or for any other reason beyond Sublandlord's reasonable
control. In such event, Rent with respect to the ROFO Space shall be abated
until Sublandlord legally delivers the same to Subtenant, as Subtenant's sole
recourse.
23. Assignment and Subletting. Independent of and in
addition to any provisions of the Master Lease, including without limitation,
the obligation to obtain Landlord's and Sublandlord's consent to any assignment,
it is understood and agreed that Subtenant shall have the right to sublet or
assign the Premises or any portion thereof or any right or privilege appurtenant
thereto, in accordance with the terms set forth in Article 10 of the Master
Lease. Any other assignment by Subtenant without Landlord's and Sublandlord's
prior written consent shall be void and shall, at the option of Sublandlord,
terminate this Sublease.
24. Limitation of Estate. Subtenant's estate shall in
all respects be limited to, and be construed in a fashion consistent with, the
estate granted to Sublandlord by Landlord. In the event Sublandlord is prevented
from performing any of its obligations under this Sublease by a breach by
Landlord of a term of the Master Lease, then Sublandlord's sole obligation in
regard to its obligation under this Sublease shall be to use reasonable efforts
in diligently pursuing the correction or cure by Landlord of Landlord's breach.
25. Entire Agreement. It is understood and acknowledged
that there are no oral agreements between the parties hereto affecting this
Sublease and this Sublease supersedes
13
and cancels any and all previous negotiations, arrangements, brochures,
agreements and understandings, if any, between the parties hereto or displayed
by Sublandlord to Subtenant with respect to the subject matter thereof, and none
thereof shall be used to interpret or construe this Sublease. This Sublease, and
the exhibits and schedules attached hereto, contains all of the terms,
covenants, conditions, warranties and agreements of the parties relating in any
manner to the rental, use and occupancy of the Premises and shall be considered
to be the only agreements between the parties hereto and their representatives
and agents. None of the terms, covenants, conditions or provisions of this
Sublease can be modified, deleted or added to except in writing signed by the
parties hereto. All negotiations and oral agreements acceptable to both parties
have been merged into and are included herein. There are no other
representations or warranties between the parties, and all reliance with respect
to representations is based totally upon the representations and agreements
contained in this Sublease.
26. Amendment or Modification. Sublandlord and Landlord
shall not amend or modify the Master Lease in any way so as to materially or
adversely affect Subtenant or its interest hereunder, materially increase
Subtenant's obligations hereunder or materially restrict Subtenant's rights
hereunder, without the prior written consent of Subtenant, which may be withheld
in Subtenant's reasonable discretion.
27. No Voluntary Termination. Except with respect to
Sublandlord's right to terminate the Master Lease in the event of (a) damage and
destruction in accordance with Article 11 of the Master Lease and (b) a taking
under Article 13 of the Master Lease, Sublandlord shall not voluntarily
terminate the Master Lease during the Term unless and until Landlord has agreed
in writing to continue this Sublease in full force and effect as a direct lease
between Landlord and Subtenant upon and subject to the terms, covenants and
conditions of the Recognition Agreement executed concurrently herewith.
28. Access Devices. Sublandlord shall, it its sole cost
and expense, (a) cause the existing security access system to be reprogrammed to
allow for Subtenant's exclusive access to the Premises (except with regard to
Subtenant's non-exclusive use of the shared kitchen area described in Section 4
hereof), and (b) furnish to Subtenant keys and/or cards providing access to (I)
the Premises from the corridors or other common areas of the Building, (ii) the
restrooms on the floor of the Building on which the Premises are located, and
(iii) such shared kitchen area. Subtenant shall, at its sole cost and expense,
be responsible for the cost of any future reprogramming requirements or changes
to the security access system with respect to the Premises.
14
IN WITNESS WHEREOF, the parties have entered into this Sublease as of
the date first written above.
[LOEB & LOEB, LLP STAMP] SUBLANDLORD;
CANDLE CORPORATION,
a California corporation
By:
-----------------------------
Its:
Date: May 29, 2002
SUBTENANT:
FRANKLIN BANK, S. S. B.,
a Texas corporation
By:
-----------------------------
Its:
Date: May 29, 2002
15
CONSENT OF LANDLORD
To Sublease Agreement dated June 7, 2002
BY AND BETWEEN CANDLE CORPORATION ("TENANT") AND
FRANKLIN BANK, S. S. B. ("SUBTENANT")
The undersigned is the Landlord in the Master Lease described
in the foregoing Sublease Agreement and hereby consents only to the subletting
of a portion of the Leased Premises and not the terms and conditions thereof.
The Landlord, waiving none of his rights as specified in the Master Lease as to
the Tenant or the Subtenant, does not release the Tenant, CANDLE CORPORATION, a
California corporation, from any liability or obligation under the terms of the
Master Lease.
Landlord hereby acknowledges receipt of the Sublet Fee in the
amount of TWO HUNDRED AND NO/100 ($200.00)
AGREED AND ACCEPTED THIS 10th DAY OF June 2002.
LANDLORD: FRAYDUN REALTY CO., A NEW YORK LIMITED PARTNERSHIP
BY: /s/
------------------------------------
Authorized Agent for the Partnership
16
EXHIBIT "D"
FORM OF XXXX OF SALE
XXXX OF SALE
THIS XXXX OF SALE is made this__day of ________, 2002, by CANDLE
CORPORATION, a California corporation ("Seller"), to FRANKLIN BANK, S.S.B., a
Texas corporation ("Buyer").
RECITALS:
A. Seller and Buyer are parties as Sublandlord and Subtenant,
respectively, to that certain Sublease (the "Sublease"), for the sublease of the
approximately 10, 328 square feet of rentable area located on the 6th Floor of
the Building, as more particularly described therein (the "Premises"). Each
capitalized term not defined herein shall have the respective meaning given to
that term in the Sublease.
B. The Sublease provides, in part, that Seller shall transfer to
Buyer forty-eight (48) Work Stations and the furnishings for the conference
rooms (as more particularly described in Exhibit "A" attached hereto and made a
part hereof) located in the Premises and used primarily in the use and operation
of the Premises ("Furnishings").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller does hereby absolutely and
unconditionally give, grant, bargain, sell, transfer, set over, assign, convey,
release, confirm and deliver (collectively, "Transfer") to Buyer, and Buyer
accepts, the Furnishings.
1. THE FURNISHINGS ARE BEING TRANSFERRED ON AN "AS IS" BASIS,
WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, OF ANY
KIND WHATSOEVER BY SELLER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
BUYER ACKNOWLEDGES THAT SELLER EXPRESSLY DISCLAIMS AND NEGATES, AS TO ALL
PROPERTY TRANSFERRED HEREBY: (A) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY; (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE; AND (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR
MATERIALS.
2. This Xxxx of Sale shall be binding upon and inure to the
benefit of the respective successors, assigns, personal representatives, heirs
and legatees of Buyer and Seller.
17
3. If any party hereto brings any action or suit against the
other party hereto by reason of any breach of any covenant, condition, agreement
or provision on the part of the other party set forth in this Xxxx of Sale, the
prevailing party shall be entitled to recover from the other party all costs and
expenses of the action or suit, including reasonable attorneys' fees, charges
and costs, in addition to any other relief to which it may be entitled.
4. This Xxxx of Sale may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
5. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, Seller has executed and delivered this Xxxx of Sale
as of the day and year first above written.
SELLER:
CANDLE CORPORATION, a California
corporation
By: _________________________________________
Name: _______________________________________
Title: _____________________________________
BUYER:
FRANKLIN BANK, S.S.B., a Texas corporation
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
18
EXHIBIT "F"
SUBTENANT WORK LETTER
This Subtenant Work Letter shall set forth the terms and conditions
relating to the construction of the Subtenant improvements permanently affixed
to the Premises (the "Subtenant Improvements"). This Subtenant Work Letter is
essentially organized chronologically and addresses the issues of the
construction of the Premises, in sequence, as such issues will arise during the
actual construction of the Premises. All capitalized terms used but not defined
herein shall have the meanings given such terms in the Sublease.
The provisions of the Lease, except where clearly inconsistent or
inapplicable to this Subtenant Work Letter, are incorporated into this Subtenant
Work Letter.
SECTION I
SUBLANDLORD'S WORK
1.1 SUBLANDLORD WORK. At Sublandlord's sole cost and expense,
Sublandlord shall cause Landlord to cause the construction and/or installation
of the following items on the floor of the Building containing the Premises
(collectively, the "Sublandlord Work"), which Sublandlord Work shall be deemed
part of the Subtenant Improvements. Sublandlord's Work shall be installed or
constructed in compliance with Building standard requirements, and shall unless
otherwise indicated, be installed and constructed in compliance with, and only
to the extent required by, Code at the time of construction of the Subtenant
Improvements.
A. PUBLIC CORRIDOR (MULTI-TENANT FLOOR OCCUPANCIES
ONLY). Construction of a standard tenant double-door entry including doors,
frames and hardware, in the location shown on the Space Plan attached hereto as
Exhibit "A", and standard tenant entry signage and exit lights.
B. DEMISING WALLS BETWEEN TENANTS (MULTI-TENANT FLOOR
OCCUPANCIES ONLY). Sublandlord shall be responsible for the entire cost of any
and all demising partitions between the Master Premises and the Premises, and
the installation of a double-door entry to the Premises. The demising partitions
between the Master Premises and the Premises shall be in the location shown on
the Space Plan attached hereto and shall include studs, acoustical insulation
and drywall finished on Subtenant's side and any necessary penetrations, fire
dampers and sound traps. The demising walls will be constructed as a part of the
Subtenant Improvements by Sublandlord.
C. EXISTING IMPROVEMENTS. Except as expressly provided
above, Sublandlord shall deliver the existing improvements in the Premises in
their current existing "AS-IS" condition. Sublandlord shall deliver the Premises
to Subtenant in broom clean condition.
19
SECTION II
CONSTRUCTION DRAWINGS/SPACE PLAN
2.1 SELECTION OF ARCHITECT/CONSTRUCTION DRAWINGS. As applicable,
Landlord, on Sublandlord's behalf, shall retain an architect/space planner (the
"Architect") to prepare the Construction Drawings. Additionally, if applicable,
Landlord shall retain engineering consultants (the "Engineers") to prepare all
plans and engineering working drawings relating to the structural, mechanical,
electrical, plumbing, HVAC, life/safety, and sprinkler work in the Premises,
which work is not part of the Sublandlord Work. All plans and drawings to be
prepared by Landlord and/or the Architect and/or the Engineers hereunder shall
be known collectively as the "Construction Drawings" and shall be consistent
with the Space Plan.
2.2 FINAL SPACE PLAN. If necessary, considering the scope of the
Subtenant Improvements, Landlord and the Architect on behalf of Sublandlord
shall prepare the final space plan for the Subtenant Improvements (the "Final
Space Plan"), which Final Space Plan shall include a layout and designation of
all offices, rooms and other partitioning, their intended use, and equipment to
be contained therein, a reflected ceiling plan, an electrical and plumbing plan
and telephone and data cabling and outlet plan and shall receive preliminary
plan check approval for the same from the Building Department of the City of
Houston and shall deliver the Final Space Plan and proof of receipt of
preliminary plan check approval (if the same is customarily provided by the City
of Houston) to Sublandlord.
2.4 FINAL WORKING DRAWINGS. Upon completion of the Final Space
Plan, Landlord, Architect and the Engineers shall complete the final
architectural and engineering drawings for the Premises, as applicable, in a
form designated by Landlord which is sufficiently complete to allow
subcontractors to bid on the work, to obtain all applicable permits, and to
subsequently construct the work (collectively, the "Final Working Drawings") and
shall submit evidence of same to Sublandlord.
2.5 PERMITS.
A. STRUCTURAL PERMITS. If required or applicable,
Landlord, on behalf of Sublandlord, shall use its best, good faith, efforts and
all due diligence to cooperate with Architect, the Engineers and "Contractor"
(as defined in Section 3. 1 below to do all acts necessary, including
cooperation in the preparation of any shop drawings necessary to obtain permits
for the immediate construction of any structural related items (the "Structural
Permits"), and Sublandlord acknowledges that in connection therewith Landlord
and/or Contractor, as opposed to Subtenant, on behalf of Subtenant and as
Subtenant's agent, is be the appropriate party to obtain such permits.
B. OTHER PERMITS. Landlord, on behalf of Sublandlord,
shall immediately submit the Final Working Drawings to the City of Houston for
all applicable building permits (except the Structural Permits to the extent the
same have already been received pursuant to the terms of Section 2. 5. A. above)
necessary to allow Contractor to commence and fully complete the construction of
the Subtenant Improvements (the "Permits").
20
C. OTHER TERMS. No changes, modifications or alterations
in the Final Working Drawings which constitute significant and material changes
to the scope of work may be made without the prior written consent of Landlord.
SECTION III
CONSTRUCTION OF THE SUBTENANT IMPROVEMENTS
3.1 CONTRACTOR. A contractor retained and selected by Landlord
(the "Contractor"), on behalf of Sublandlord, shall construct the Subtenant
Improvements. Subcontractors ("Subcontractors") shall be selected by Landlord
from a list of approved Subcontractors previously employed by Landlord for
similar tenant improvement projects in the Building.
3.2 NOTICE OF COMPLETION. Within ten (10) days after completion of
construction of the Subtenant Improvements, Sublandlord shall cause Landlord,
Contractor and/or Architect to cause a Notice of Completion to be recorded in
the office of the Recorder of the County of Xxxxxx in accordance with the
applicable laws of the State of Texas or any successor statute and furnish a
copy thereof to Sublandlord and Subtenant upon recordation, failing which,
Sublandlord may itself execute and file the same on behalf of Landlord as
Landlord's agent for such purpose.
SECTION IV
COMPLETION OF THE SUBTENANT IMPROVEMENTS:
SUBLEASE COMMENCEMENT DATE
The Sublease Commencement Date shall occur as set forth in Section 1 of
the Sublease.
SECTION V
MISCELLANEOUS
5.1 SUBTENANT'S REPRESENTATIVE. Subtenant has designated Xxxxx
Xxxxxx as its primary representative with respect to the matters set forth in
this Subtenant Work Letter, who, until further notice to Sublandlord, shall have
full authority and responsibility to act on behalf of the Subtenant as required
in this Subtenant Work Letter.
5.2 SUBLANDLORD'S REPRESENTATIVE. Sublandlord has designated
Xxxxxxx Xxxxxxxx as its sole representative with respect to the matters set
forth in this Subtenant Work Letter, who, until further notice to Subtenant,
shall have full authority and responsibility to act on behalf of the Sublandlord
as required in this Subtenant Work Letter. In the event that Sublandlord
requests that Landlord manage the construction of the Subtenant Improvements,
then Sublandlord shall pay Landlord a fee equal to five percent (5%) of the
total costs for the Subtenant Improvements.
5.3 SUBLANDLORD DELAY. The term "Sublandlord Delay" as used in
this Work Letter shall mean any delay in the design or construction of the
Subtenant Improvements which is due to any act or omission of Sublandlord,
Landlord, Landlord's its agents or contractors, which is inconsistent with
Landlord's normal operating procedures, rules and regulations. The term
21
Sublandlord Delay shall include, but shall not be limited to any delays which
delay completion of the Subtenant Improvements beyond the Sublease Commencement
Date due to any of the following: (1) delay in obtaining any Structural Permits
or any Permits (as applicable) required to complete the Subtenant Improvements
by Landlord; (2) delay attributable to the acts or failures to act, whether
willful, negligent or otherwise, of Sublandlord, Landlord, or Landlord's agents
or contractors; and (3) delay attributable to the interference of Sublandlord,
Landlord or Landlord's agents or contractors with the completion of the
Subtenant Improvements or the failure or refusal of any such party to permit
Landlord, its agents or contractors, reasonable access to and use of the
Premises, which access and use are required for the orderly and continuous
performance of the work necessary to complete the Subtenant Improvements.
5.4 NO FEE TO SUBLANDLORD. Except with respect to the services of
Landlord as provided in Section 5. 2 above, neither Landlord nor Sublandlord
shall receive any fee for supervision, profit, overhead or general conditions in
connection with the Subtenant Improvements.
5.5 BONDING. Notwithstanding anything to the contrary set forth in
the Master Lease or the Sublease, neither Landlord nor Sublandlord shall be
required to obtain or provide any completion or performance bond in connection
with any construction, alteration, or improvement work performed by Landlord's
Architect and Contractor on behalf of Subtenant.
5.6 UNIONS. Provided that no labor action is undertaken at the
Building, Landlord may on behalf of Sublandlord, in the exercise of its
reasonable discretion, utilize union or non-union contractors and/or
subcontractors.
5.7 TIME OF THE ESSENCE. The parties agree hereto that time is of
the essence with respect to this Subtenant Work Letter.
22
XXXX OF SALE
THIS XXXX OF SALE is made this 7th day of June, 2002, by CANDLE
CORPORATION, a California corporation ("Seller"), to FRANKLIN BANK, S.S.B., a
Texas corporation ("Buyer").
RECITALS:
A. Seller and Buyer are parties as Sublandlord and Subtenant,
respectively, to that certain Sublease (the "Sublease"), for the sublease of the
approximately 10, 328 square feet of rentable area located on the 6th Floor of
the Building, as more particularly described therein (the "Premises"). Each
capitalized term not defined herein shall have the respective meaning given to
that term in the Sublease.
B. The Sublease provides, in part, that Seller shall transfer to
Buyer forty-eight (48) Work Stations and the furnishings for the conference
rooms (as more particularly described in Exhibit "A" attached hereto and made a
part hereof) located in the Premises and used primarily in the use and operation
of the Premises ("Furnishings").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller does hereby absolutely and
unconditionally give, grant, bargain, sell, transfer, set over, assign, convey,
release, confirm and deliver (collectively, "Transfer") to Buyer, and Buyer
accepts, the Furnishings.
1. THE FURNISHINGS ARE BEING TRANSFERRED ON AN "AS IS" BASIS,
WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, OF ANY
KIND WHATSOEVER BY SELLER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
BUYER ACKNOWLEDGES THAT SELLER EXPRESSLY DISCLAIMS AND NEGATES, AS TO ALL
PROPERTY TRANSFERRED HEREBY: (A) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY; (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE; AND (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR
MATERIALS.
2. This Xxxx of Sale shall be binding upon and inure to the
benefit of the respective successors, assigns, personal representatives, heirs
and legatees of Buyer and Seller.
3. If any party hereto brings any action or suit against the
other party hereto by reason of any breach of any covenant, condition, agreement
or provision on the part of the other party set forth in this Xxxx of Sale, the
prevailing party shall be entitled to recover from the other party all costs and
expenses of the action or suit, including reasonable attorneys' fees, charges
and costs, in addition to any other relief to which it may be entitled.
4. This Xxxx of Sale may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
23
5. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, Seller has executed and delivered this Xxxx of Sale
as of the day and year first above written.
SELLER:
CANDLE CORPORATION, a California corporation
By:
----------------------------------------------
[LOEB & LOEB, LLP STAMP] Name:
Title: Chief Administrative Officer
BUYER:
FRANKLIN BANK, S.S.B., a Texas corporation
By: /
----------------------------------------------
Name: /
Title: Managing Director / President
5/29/02
24
FIRST AMENDMENT TO SUBLEASE
THIS FIRST AMENDMENT TO SUBLEASE (this "Sublease Amendment") is dated
as of August 26, 2003 (but shall be effective as of the Sublease Commencement
Date (as hereinafter defined)), by and between CANDLE CORPORATION, a California
corporation ("Sublandlord") and FRANKLIN BANK, S.S.B., a Texas corporation
("Subtenant").
RECITALS
A. Fraydun Realty Co., a New York limited partnership as landlord
("Landlord") and Sublandlord, as tenant ("Tenant"), entered into that certain
(i) Lease Agreement dated June 3, 1991, (ii) Tenant's Letter of Acceptance of
Tenant Improvements dated Xxxxxx 00, 0000, (xxx) Amendment to Lease dated
October 13, 1993 ("First Amendment"), (iv) Letter of Agreement dated February
13, 1995, (v) Second Amendment to Lease Agreement dated March 15, 1995 and
executed May 30, 1995 ("Second Amendment"), (vi) Acknowledgment of First and
Second Amendments to Lease Commencement dated August 29, 1995, (vii) Letter
rejecting First Right of Refusal on Xxxxx 000 dated July 6, 2000, (viii) Letter
confirming Commencement Date and Expiration Date for the Second Amendment to
Lease Agreement dated July 19, 2000, and (ix) Third Amendment to Lease Agreement
dated July 20, 2000 and executed July 28, 2000 ("Third Amendment")
(collectively, the "Master Lease") whereby Landlord leased to Tenant the 6th
Floor ("Master Premises") of the building located at 0000 Xxxxxxxx, Xxxxxxx,
Xxxxx (the "Building"), as more particularly described in the Master Lease, upon
the terms and conditions contained therein. All capitalized terms used herein
shall have the same meaning ascribed to them in the Master Lease unless
otherwise defined herein. A copy of the Master Lease is attached hereto as
Exhibit "A" and made a part hereof.
B. Sublandlord and Subtenant entered into that certain Sublease dated
as of June 7, 2002, (collectively, the "Sublease"), for premises (the
"Premises") consisting of approximately 10,328 rentable square feet commonly
known as Suite 680 located on the Sixth (6th) Floor of the building located at
0000 Xxxxxxxx, Xxxxxxx, Xxxxx (the "Building").
C. Subtenant desires to expand the Premises by subleasing the remainder
of the Sublandlord's Premises on the 6th floor of the Building. Sublandlord and
Subtenant desire to amend the Sublease on the terms and conditions hereafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
covenant and agree as follows:
1. Sublease of Additional 6th Floor Premises. Sublandlord
hereby subleases to Subtenant, and Subtenant hereby subleases from Sublandlord,
approximately 9,967 rentable square feet located on the 6th Floor of the
Building, as more particularly described on Exhibit "B" attached hereto
("Additional 6th Floor Premises"). Except as otherwise expressly set forth in
this Sublease Amendment, the sublease of the Additional 6th Floor Premises shall
be subject to all of the terms and conditions contained in the Sublease.
Sublandlord and Subtenant hereby agree and acknowledge that, from and after
September 1, 2003 (the "Sublease Amendment Commencement Date"), for all purposes
of the Sublease (as amended by this Sublease
25
Amendment), the Premises shall consist of approximately 20,295 rentable square
feet and include the Premises and the Additional 6th Floor Premises.
2. Condition of Additional 6th Floor Premises. Subtenant agrees and
acknowledges that the additional 6th Floor Premises shall be accepted by
Subtenant in the condition existing as of the Sublease Amendment Commencement
Date "as-is" with all faults," and "without any representations or warranties."
Subtenant hereby agrees and warrants that it is familiar with the condition of
the Additional 6th Floor Premises and the suitability of same for Subtenant's
purposes, and Subtenant does hereby waive and disclaim any objection to, cause
of action based upon, or claim that its obligations hereunder should be reduced
or limited because of the condition of the Additional 6th Floor Premises or the
suitability of same for Subtenant's purposes. Subtenant acknowledges that
neither Sublandlord nor any agent nor any employee of Landlord has made any
representations or warranties with respect to the Additional 6th Floor Premises
or with respect to the suitability of the Additional 6th Floor Premises for the
conduct of Subtenant's business. The taking of possession of the Additional 6th
Floor Premises by Subtenant shall conclusively establish that the Additional 6th
Floor Premises was at such time in satisfactory condition. Subtenant further
acknowledges that Sublandlord has no obligation to alter or improve the
Additional 6th Floor Premises for Subtenant's use or benefit.
3. Expiration Date: The term with respect to the Additional 6th Floor
Premises shall be coterminous with the Sublease Term and shall end, subject to
Section 2 of the Sublease, on the Sublease Expiration Date, August 31, 2005.
4. Base Rent and Additional Rent & Purchase of Furnishings:
(a) Base Rent. Beginning with the Sublease Amendment Commencement
Date and thereafter during the term of this Sublease Amendment and ending on the
Expiration Date ("Sublease Amendment Term"), Subtenant shall pay to Sublandlord,
on a monthly basis, Base Rent as follows:
PERIOD $/RSF/YR ANNUAL MONTHLY
-------------- -------- ----------- ----------
9/1/03-8/31/05
(b) Rent Concession. Subtenant shall be entitled to four (4) month's
rent concession on the Additional 6th Floor Premises which shall be applied by
Sublandlord against Base Rent due and payable by Subtenant during the first four
(4) months of the Sublease Amendment Term.
(c) Additional Rent.
(i) Subtenant's Adjusted Expense Percentage. From and after the
Sublease Amendment Commencement Date, for all purposes of the Sublease (as
amended by this Sublease Amendment), Subtenant's Expense Percentage (as set
forth in Section 5(c)(i) of the Sublease) is hereby amended to reflect the new
Expense Percentage of 100%. The Base Year shall remain the same for the
Additional 6th Floor Premises as it is for the existing Premises (calendar year
2002).
26
(d) Furnishings. Section 5(f) of the Sublease is hereby
deleted in its entirety and replaced with the following: On the Sublease
Amendment Commencement Date, Subtenant shall purchase from Sublandlord (i) the
existing thirty-one (31) work stations located in the Additional 6th Floor
Premises (each, a "Work Station" and collectively, the "Work Stations"), as more
specifically described on Exhibit "C", attached hereto, at a cost of $300.00 per
work station and (ii) the other furniture and furnishings remaining a part of
the Additional 6th Floor Premises (the Work Stations and other furnishings
hereinafter sometimes collectively referred to as the "Furnishings"), as more
specifically listed on Exhibit "C" attached hereto. The cost of all such
Furnishings shall be $9,600.00, which amount shall be remitted to Sublandlord
upon Subtenant's execution of the Sublease Amendment. Sublandlord shall execute
and deliver to Subtenant a Xxxx of Sale, without recourse or warranty, in the
form attached hereto as Exhibit "D", covering the Furnishings required to be
transferred to Subtenant with respect to this Sublease Amendment which shall be
countersigned by Subtenant.
5. Additional Security Deposit. Subtenant shall deliver to Sublandlord
an additional security deposit equal to one (1) month's Base Rent in the sum of
Ten Thousand Seven Hundred Ninety Seven and 58/100 Dollars ("Additional Security
Deposit"), which amount shall be remitted to Sublandlord together with the
payment for the Furnishings.
6. Signage. Section 8(d) of the Sublease is hereby revised to delete
Article 11 of the Second Amendment.
7. Parking. Subject to the terms of the Master Lease, as amended by
Exhibit "E" of the Third Amendment.
8. Subtenant Improvements and Alterations. Section 11 of the Sublease
is hereby deleted and replaced with the following: Subtenant shall not make or
allow to be made any alterations changes or improvements to the Premises or any
part thereof without the prior written consent to the Landlord and Sublandlord.
9. Notices. Notices to Sublandlord shall be sent to the attention of:
Candle Corporation
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Director - Real Estate and Facilities
with a copy to:
Candle Corporation
Legal Department
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
10. Broker. Section 18 of the Sublease is hereby deleted and replaced
with the following: Sublandlord and Subtenant represent and warrant to each
other that other than Xxxxxxx Xxxxxx of Xxxxx Xxxx LaSalle, on behalf of
Sublandlord, no brokers were involved in
27
connection with the negotiation or consummation of this Sublease Amendment.
Each party agrees to indemnify the other and the Landlord, and hold it
harmless, from and against any and all claims, damages, losses, expenses and
liabilities (including reasonable attorneys' fees) incurred by said party as a
result of a breach of this representation and warranty by the other party.
Except as herein expressly changed or amended herein, all the terms and
provisions of the Sublease shall remain in full force and effect as originally
set forth therein.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Sublease Amendment.
SUBLANDLORD:
CANDLE CORPORATION,
a California corporation
(STAMP) By:
-----------------------------
Its: Director, Facilities
-----------------------------
Date: September 4, 2003
SUBTENANT:
FRANKLIN BANK, S.S.B.,
a Texas corporation
By:
-----------------------------
Its: Managing Director
-----------------------------
Date: August 26, 2003
28
CONSENT OF LANDLORD
TO SUBLEASE AGREEMENT DATED AUGUST 26, 2003
BY AND BETWEEN CANDLE CORPORATION ("TENANT") AND
FRANKLIN BANK, SSB ("SUBTENANT")
The undersigned is the Landlord in the Master Lease described in the
foregoing Sublease Agreement and hereby consents only to the subletting of the
remaining portion of the Leased Premises and not the terms and conditions
thereof. The Landlord, waiving none of his rights as specified in the Master
Lease as to the Tenant or the Subtenant, does not release the Tenant, Candle
Corporation, from any liability or obligation under the terms of the Master
Lease.
AGREED AND ACCEPTED THIS 15TH DAY OF SEPTEMBER, 2003.
LANDLORD: FRAYDUN REALTY CO., A NEW YORK CORPORATION
BY: authorized agent
-------------------------------------
Authorized Agent for the Partnership
29
EXHIBIT "D"
FORM OF XXXX OF SALE
XXXX OF SALE
THIS XXXX OF SALE is made this 26 day of August, 2003, by CANDLE CORPORATION, a
California corporation ("Seller") to FRANKLIN BANK, S.S.B., a Texas corporation
("Buyer").
RECITALS:
A. Seller and Buyer are parties as Sublandlord an Subtenant
respectively, to that certain Sublease, as amended, ("Sublease"), for the
sublease of approximately 20,295 square feet of rentable area located on the
6th floor of the Building, as more particularly described therein (the
"Premises"). Each capitalized term not defined herein shall have the respective
meaning given to that term in the Sublease.
B. The Sublease provides, in part that Seller shall transfer to Buyer
thirty-one (31) Work Stations and the other furnishings (as more particularly
described in Exhibit "C" attached hereto and made a part hereof) located in the
Premises and used primarily in the use and operation of the Premises
("Furnishings").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller does hereby absolutely and
unconditionally give, grant, bargain, sell, transfer, set over, assign, convey,
release, confirm and deliver (collectively, "Transfer") to Buyer and Buyer
accepts, the Furnishings.
1. THE FURNISHINGS ARE BEING TRANSFERRED ON AN "AS IS" BASIS WITHOUT ANY
REPRESENTATION OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, OF ANY KIND
WHATSOEVER BY SELLER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER
ACKNOWLEDGES THAT SELLER EXPRESSLY DISCLAIMS AND NEGATES, AS TO ALL PROPERTY
TRANSFERRED HEREBY: (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY; (B)
ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND (C)
ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR MATERIALS.
2. This Xxxx of Sale shall be binding upon and inure to the benefit of
the respective successors, assigns personal representatives, heirs and legatees
of Buyer and Seller.
3. If any party hereto brings any action or suit against the other party
hereto by reason of any breach of any covenant, condition, agreement or
provision on the part of the other party set forth in the Xxxx of Sale, the
prevailing party shall be entitled to recover from the other
30
party all costs and expenses of the action or suit, including reasonable
attorneys' fees, charges and costs, in addition to any other relief to which it
may be entitled.
4. This Xxxx of Sale may be executed in counterparts, each of which
shall be deemed an original, and both of which together shall constitute one
and the same instrument.
5. This Assignment shall be governed by and interpreted in accordance
with the laws of the State of Texas.
IN WITNESS WHEREOF, Seller has executed and delivers this Xxxx of Sale
as of the day and year first above written.
SELLER:
CANDLE CORPORATION, a California
Corporation
APPROVED By: XXXX X. XXXXX
AS TO ------------------------------------
LEGAL FORM Name: Xxxx X. Xxxxx
(STAMP) ----------------------------------
Title: Director, Facilities
---------------------------------
BUYER:
FRANKLIN BANK, S.S.B., a Texas corporation
By: XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title: Managing Director
---------------------------------
31
