EXHIBIT 10.67
LEASE AGREEMENT FOR THE EXPERIAN/TRW BUILDINGS
LEASE AND AGREEMENT
between
Xxxxx Office Investment Partnership
a Texas limited partnership
as Landlord
and
TRW Inc., an Ohio corporation
as Tenant
Dated April 15, 1993
TABLE OF CONTENTS
Page
----
1. Demise of Premises; Purchase Option..................................... 1
2. Title and Condition..................................................... 1
3. Use of Premises......................................................... 2
4. Terms................................................................... 3
5. Rent and Termination Values............................................. 3
6. Net Lease; Non-terminability............................................ 8
7. Taxes and Assessments; Compliance With Law; Environmental Matters....... 9
8. Indemnification......................................................... 12
9. Liens; Grants of Easements.............................................. 13
10. Maintenance and Repair; Completion of Improvements...................... 14
11. Alterations............................................................. 15
12. Insurance............................................................... 19
13. Casualty................................................................ 22
14. Condemnation............................................................ 23
15. Procedure After Purchase Offer; Procedure in Event of Purchase.......... 26
16. Assignment and Subletting............................................... 28
17. Additional Tenant Covenants and Representations......................... 29
18. Financial Statements.................................................... 30
19. Permitted Contests...................................................... 31
20. Conditional Limitations; Default Provisions............................. 32
21. Additional Rights of Landlord........................................... 36
22. Notices, Demands and Other Instruments.................................. 37
23. Estoppel Certificate.................................................... 37
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24. No Merger............................................................... 37
25. Surrender............................................................... 38
26. Separability............................................................ 38
27. Savings Clause.......................................................... 38
28. Binding Effect.......................................................... 39
29. Memorandum of Lease..................................................... 39
30. Table of Contents, Headings............................................. 39
31. Governing Law........................................................... 39
32. Certain Definitions..................................................... 39
33. Exhibits and Attachments................................................ 43
34. Time for Performance of Obligations..................................... 44
35. Nature of Landlord's Obligations........................................ 44
EXHIBIT A - Legal Description
EXHIBIT A-1 - Personal Property
EXHIBIT B - Basic Rent Payments
EXHIBIT C - Assumptions
EXHIBIT D - Termination Values
EXHIBIT E - Self Insurance Certificate
EXHIBIT F - Computation of Purchase Prices
EXHIBIT G - [Reserved]
EXHIBIT H - Tenant's Certificate
EXHIBIT I - Development Budget
EXHIBIT J - Environmental Remediation
EXHIBIT K - Renovations
EXHIBIT L - Environmental Indemnity Agreement
ATTACHMENT 1 - Amortization Schedule
ATTACHMENT 2 - Depreciation Components
ATTACHMENT 3 - Calculation of Fair Market Values
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LEASE AND AGREEMENT, dated as of April 15, 1993, between Xxxxx Office
Investment Limited Partnership, a Texas limited partnership (herein, as further
defined in Section 32(c), called "Landlord"), having an address at 000 Xxxx
Xxxxxx, Xxx Xxxxxx, Xxxx 00000, Attention: Commercial Real Estate Loan
Administration, Reference No. D-399815, and TRW Inc., an Ohio corporation
(herein, called "Tenant"), having an address at 000 Xxxx Xxxxxxx Xxxx, Xxxxxx,
Xxxxxxxxxx 00000 Attention: Xxxx X. Xxxxxxxx.
1. Demise of Premises; Purchase Option.
(a) 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 terms herein described, the premises (herein
called the "Premises") consisting of (i) the land described in Exhibit A
attached hereto and made a part hereof (herein called the "Land Parcel"); (ii)
all buildings, structures and other improvements constructed and to be
constructed thereon (including all building equipment and fixtures, if any,
owned by Landlord, but excluding trade equipment and fixtures owned by Tenant)
(herein called the "Improvements"); (iii) all the personal property as described
in Exhibit A-1 attached hereto and made a part hereof; and (iv) all easements,
rights and appurtenances relating thereto, all upon the terms and conditions
herein specified. Landlord shall have the right, after the date of this Lease
and at any time, to sell, convey, encumber or transfer the Premises, subject to
the rights of Tenant under this Lease.
(b) After the expiration of the Primary Term (as hereinafter defined in
Section 4), Tenant shall have the option, and Landlord hereby grants to Tenant
the option, to purchase the Premises at the then fair market value of the
Premises, which fair market value shall be determined prior to the end of the
Primary Term and provided in attachment 3 attached hereto and made a part
hereof.
2. Title and Condition. The premises are demised and let in their present
condition and without warranty or representation by Landlord, and subject to (a)
the rights of any parties in possession, (b) the state of the title thereto
existing at the time Landlord acquired title to the Premises and as of the
commencement of the Term (as hereinafter defined in Section 4) of this Lease,
(c) any state of facts which an accurate survey or physical inspection thereof
might show, (d) all private deed restrictions and protective covenants, and all
applicable laws, rules, regulations, ordinances and restrictions now in effect
or hereafter adopted by any governmental authority, including, without
limitation, all zoning regulations, restrictions, rules and ordinances, building
restrictions and other laws and regulations, (e) any violations of such
restrictions, covenants, laws, rules, regulations or ordinances which may exist
at the time of the commencement of the Term of this Lease, and (f) the condition
of any buildings, structures and other improvements located thereon, as of the
commencement of the Term of this Lease, including, without limitation,
construction currently in progress and commenced prior to the date of this
Lease, and any liens, inchoate or xxxxxx, unperfected or perfected, previously,
currently or in the future arising therefrom. Tenant
represents that it has examined the title to and the condition of the Premises
and has found the same to be satisfactory to it. Tenant acknowledges and
confirms that Tenant is fully familiar with the physical condition of the
Premises and that Landlord makes no representation or warranty, expressed or
implied, with respect to same or with respect to the location use, description,
design, merchantability, fitness for use for particular purpose, condition or
durability thereof, or as to quality of the material or workmanship therein, or
as to Landlord's title thereto or ownership thereof, or otherwise; and all risks
incidental to the Premises shall be borne by Tenant to the extent of matters
that arise during the term of this Lease. Landlord leases and Tenant accepts the
Premises as is, with all faults and in the event of any defect or deficiency of
any nature in the Premises or any fixture or other item constituting a portion
of Premises, whether patent or latent, neither Landlord nor Permitted
Beneficiary shall have any responsibility or liability with respect thereto. THE
PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A
COMPLETE EXCLUSION AND NEGATION BY LANDLORD OF, AND LANDLORD DOES HEREBY
DISCLAIM ANY AND ALL WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PREMISES OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION OF THE
PREMISES, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR OTHER LAW,
NOW OR HEREAFTER IN EFFECT, OR OTHERWISE.
3. Use of Premises.
(a) Tenant and any permitted sublessee or assignee may use the Premises
for any lawful purpose; provided that, in Landlord's reasonable judgment, such
use (i) creates no detrimental environmental effects or increased environmental
risks to the Premises or to other property and does not result in any increased
risk of liability to Landlord, (ii) creates or requires no modifications to the
physical structure of any portion of the Premises except in accordance with the
provisions of Section 11 of this Lease, unless all such modifications are
approved in advance and in writing by Landlord and Permitted Beneficiary as
provided herein, (iii) creates no adverse tax consequences for Landlord, (iv)
will not lessen the fair market value of THE Premises to an amount which is
below its fair market value immediately prior to the commencement of such use,
(v) does not change the primary character of the Premises, and (vi) does not
violate any other provisions of this Lease or any term of any other agreement or
restriction to which the Premises are subject, or cause the premises to be in
violation of any laws, ordinances, rules, regulations, covenants, or
requirements applicable thereto. The restrictions set forth in (i) through (vi)
inclusive in this subsection (a) are hereinafter collectively referred to as the
"Use Restrictions". Tenant and any permitted sublessee or assignee shall not
create or suffer to exist any public or private nuisance, hazardous or illegal
condition or waste on or with respect to the Premises.
(b) Tenant shall not conduct its business operation in the Premises unless
and until (and only during such time as) all necessary certificates of
occupancy, permits, licenses and consents from any and all appropriate
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governmental authorities have been obtained by Tenant and are in full force and
effect.
4. Terms. Subject to the terms and conditions hereof, Tenant shall have
and hold the Premises for a primary term (herein called the `Primary Term")
commencing on April 15, 1993, and continuing through October 15, 2010.
Thereafter, Tenant shall have the right and option to extend this Lease for four
(4) consecutive terms of five (5) years each (herein collectively and
individually called an "Extended Term", and together with the Primary Term,
called the "Term) unless this Lease shall be sooner terminated pursuant to the
terms hereof. Each Extended Term shall commence on the day immediately
succeeding the expiration date of the Primary Term or the preceding Extended
Term. This Lease shall not be extended for an Extended Term and Tenant shall be
deemed not to have exercised its option to extend, unless (a) Tenant has given
written notice to Landlord at least two (2) years prior to the end of the then
Term of this Lease of Tenant's intention to so extend this Lease, and (b) at the
time at which any such extension would otherwise take effect, no default or
Event of Default exists under this Lease. If Tenant does not timely and properly
give such notice of Tenant's intention to so extend this Lease, Tenant shall
have no further option or obligation to extend this Lease. Further, if Tenant
does not timely and properly notify Landlord of Tenant's intention to extend
this Lease, or if any default or any Event of Default exists and is continuing
at such time under this Lease, then Landlord shall have the right during the
remainder of the Term of this Lease to advertise the availability of the
Premises for sale or reletting and to erect upon the Premises signs appropriate
for the purpose of indicating such availability; provided, that such signs do
not unreasonably interfere with the use of the Premises by Tenant.
5. Rent and Termination Values.
(a) Tenant covenants to pay directly to Permitted Beneficiary (as
hereinafter defined) as installments of rent to Landlord for the Premises during
the Term of this Lease, the amounts determined pursuant to Exhibit B hereto,
subject to adjustment as provided in Section 5(c) below (herein called the
"Basic Rent") on the dates set forth in said Exhibit B (herein called the "Basic
Rent Payment Dates") in arrears. Basic Rent payments shall be allocated to
tenant's use of the Premises during the Lease period in which the Basic Rent
Payment Date for such Basic Rent payment falls. Tenant covenants to pay the
Basic Rent by wire transfer of immediately available funds to Permitted
Beneficiary at Norwest Bank Iowa, N.A., Seventh and Xxxxxx Xxxxxxx, Xxx Xxxxxx,
Xxxx 00000, for credit to Principal Mutual Life Insurance Company, General
Account No. 014752 Re: D-399815 and/or to such other person or such other place
or account as Landlord and Permitted Beneficiary, if any, from time to time may
designate to Tenant in writing.
(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
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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 of the foregoing, Landlord shall have all rights,
powers and remedies provided herein or by law in the case of nonpayment of Basic
Rent. Tenant also covenants to pay to Landlord on demand an amount equal to four
percent (4%) of the payment amount then due on all overdue installments of Basic
Rent or Additional Rent not paid within any applicable grace period. In
addition, Tenant further covenants to pay to Landlord on demand, after the
expiration of five (5) days after notice form Landlord of payment by Landlord on
behalf of Tenant of any of Tenant's obligations under this Lease, interest on
all such obligations paid by Landlord and not reimbursed by Tenant, at the rate
of the lesser of (i) fifteen percent (15%) per annum, or (ii) the maximum rate
not prohibited by applicable law, which interest shall accrue from and after the
fifth day after such notice from Landlord, and shall continue to accrue until
Landlord is repaid in full for such payment made on behalf of Tenant.
Notwithstanding anything in this Lease to the contrary, with respect to any
portion of Additional Rent comprised solely of late charges and/or default rate
interest, any failure of Tenant to pay any such amounts shall not constitute an
Event of Default under this Lease until the expiration of five (5) days after
notice from Landlord that such amounts have become due and payable, specifying
the nature and amount of such late charges and/or default rate interest.
(c) The calculation of Basic Tent and the calculation of the amount to be
paid to Landlord by Tenant in the event of certain occurrences as expressly
provided in this Lease wherein the term "Termination Value" is used (the amounts
set forth on Exhibit D attached hereto and made a part hereof, as may be
adjusted from time to time pursuant to the provisions of this subsection being
referred to in this Lease as the "Termination Value") initially payable pursuant
to this Lease have been based on the assumptions described on Exhibit C. The
Basic Rent and the Termination Value have been calculated to provide Landlord
with a certain after-tax rate of return, total after-tax return per dollar of
equity invested and present value of after-tax lease income [as booked under FAS
13 (defined in Section 32), per dollar of equity invested] (hereinafter
collectively called "Lessor's Anticipated Economics"). Subject to the provisions
of (i), (ii), (iii), (iv) and (v) of this subsection 5(c) and the provisions of
subsection 5(d), if either Landlord or Tenant determines at any time (within the
notice period provided below in this Section 5(c)) that any of such assumptions
are inaccurate or are not as set forth on Exhibit C, whether due to being
inaccurate when made or due to any changes in facts or circumstances (an
"Inaccurate Assumption"), then the Basic Rent and the Termination Value shall be
appropriately adjusted, as provided below, from and effective as of the date
that such Inaccurate Assumption first became inaccurate, by such amounts as
shall preserve Lessor's Anticipated Economics (such adjustments being
hereinafter called, respectively, the "Rent Adjustments" and the "Termination
Value Adjustments" and collectively "Rent/Termination Value Adjustments").
Notwithstanding anything in this Section 5 to the contrary but only in
connection with the procedure for effecting Rent/Termination Value Adjustments
pursuant to this Section 5(c), (i) the
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amount of Basic Rent and the Termination Value must be in amounts which, in all
respects, continue to comply with all relevant Code (as defined in Exhibit C
hereto) provisions, and all regulations, published rulings, procedures and
announcements pertaining thereto, (ii) Landlord shall be entitled to require
that all provisions of the Code, and regulations, published rulings, procedures
and/or announcements pertaining thereto shall be taken into account in making
any calculation of any Rent/Termination Value Adjustment, (iii) a
Rent/Termination Value Adjustment which results from a Federal Tax Law Change
(as defined in Exhibit C) and which would, absent this restriction, result in an
increase in the Basic Rent or Termination Value shall not be made if the result
of such adjustment would cause (in the opinion of tax counsel for Landlord) the
failure of the Lease to qualify as a true lease for federal income tax purposes
unless the Landlord in its sole discretion elects to waive this restriction,
(iv) a Rent/Termination Value Adjustment which results from a federal Tax Law
Change and which would, absent this restriction, result in a decrease in the
Basic Rent or Termination Value shall not be made if the result of such
adjustment would cause (in the opinion of tax counsel for landlord) the failure
of the Lease to qualify as a true lease for federal income tax purposes, and (v)
the Basic Rent shall in no event be adjusted to an amount which is less than the
regularly scheduled debt service payments due to any Permitted Beneficiary (the
"Debt Service Amounts"). The procedure for effecting Rent Adjustments and
Termination Value Adjustments shall be as provided below. Either party may
submit any proposed Rent/Termination Value Adjustment calculated in accordance
with the provisions of this Section 5(c), along with the basis for such
Rent/Termination Value Adjustment, to the other party, and if the other party
does not object to such proposed Rent/Termination Value Adjustment in writing
within twenty (20) days following such submission, setting forth in specific
detail the basis for its objection, the Basic Rent and Termination Value shall
be deemed adjusted in accordance with such proposed Rent/Termination Value
Adjustment without the necessity of any further action or documentation by any
party; provided, however, Tenant shall not be allowed to submit any proposed
Rent/Termination Value Adjustment unless it has first given Landlord Written
notice that it intends to make such submission and Landlord fails to make a
proposed Rent/Termination Value Adjustment within thirty (30) days of such
notice. If the other party objects to the proposed Rent/Termination Value
Adjustment in writing and in detail within said twenty (20) day period, Landlord
and Tenant shall use their best efforts to reach agreement as to any such
proposed Rent/Termination Value Adjustment. If agreement is reached, the Basic
Rent and Termination Values shall be adjusted in accordance with such agreement
when reduced to writing. If Landlord and Tenant are unable to reach a written
agreement within thirty (30) days of the submitting party's receipt of the other
party's written objection, then Ernst & Young or such other nationally
recognized accounting firm as agreed upon by Landlord and Tenant (the
"Third-Party Accounting Firm") shall be engaged to review the proposed
Rent/Termination Value Adjustment and shall make a determination as to the
resolution of the proposed Rent/Termination Value Adjustment so as to cause such
Rent/Termination Value Adjustment to be properly made in accordance with the
provisions of this Lease. The determination of the Third-Party
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Accounting Firm made in accordance with the provisions of this Section 5(c)
shall be final, conclusive and binding upon Landlord and Tenant. Tenant shall
pay all fees, costs and expenses of Landlord and the Third-Party Accounting Firm
in connection with the determination of any Rent/Termination Value Adjustment.
In the determination of any Rent/Termination Value Adjustment, all assumptions
set forth on Exhibit C shall continue to apply other than the Inaccurate
Assumption(s) resulting in any Rent/Termination Value Adjustment. From and after
such Rent/Termination Value Adjustment, Exhibit C shall be deemed amended so as
to substitute the appropriate revised assumption for the Inaccurate Assumption.
In all cases, any Rent/Termination Value Adjustment shall serve to preserve (but
not improve or adversely affect) Lessor's Anticipated Economics. Unless a notice
shall have been given pursuant to this Section 5(c) by December 31 of the
seventh calendar year following the last calendar year in which a Federal Tax
Law Change may occur, the Rent/Termination Values then in effect shall be
conclusive and binding upon the parties for all purposes hereunder.
(d) With respect to any Rent Adjustment effectuated pursuant to this
Section 5 which has the effect of decreasing the amount of Basic Rent, the
amount of any such decrease in Basic Rent shall be limited as may be necessary
so that in no event shall the resulting amount of Basic Rent payable be an
amount of Basic Rent payable be an amount which is less than the Debt Service
Amounts payable; provided, however, than an amount equal to the difference
between (i) the full amount by which the Basic Rent would have been decreased
each month by such Rent Adjustment but for such limitation, and (ii) the
limiting Debt Service Amount (such difference being hereinafter referred to as
the "Unrealized Basic Rent Reduction Amount") shall be periodically calculated
by Landlord and a record thereof retained for all periods during which the Basic
Rent would, but for said limitation to the Debt Service Amount, be less than the
Debt Service Amount. Any Unrealized Basic Rent Reduction Amounts which may be
created from time to time during the Term of this Lease, plus an amount equal to
three percent (3%) per annum calculated on such Unrealized Basic Rent Reduction
Amounts from the date each is created, are hereinafter collectively referred to
as the `Total Accumulated Credit Amounts." In the event that any Extended Term
is properly effected in accordance with the terms of this Lease, Landlord shall
grant Tenant a rent concession in the form of no Basic Rent being payable from
the first day of any such Extended Term, for the period of time during which the
total Basic Rent which would otherwise be payable during such portion of the
Extended Term equals the Total Accumulated Credit Amounts; provided, however,
that during any such portion of an Extended Term when Total Accumulated Credit
Amounts are applied in lieu of Basic Rent, additional Rent and any other amounts
payable by Tenant in accordance with the terms of this Lease during such portion
of the Extended Term shall continue to be due and payable. In the event that
Tenant purchases the Premises from Landlord in accordance with any of the
provisions of this Lease other than provisions regarding (a) any condemnation of
all or any portion of the Premises, and (b) any default by Tenant in any of its
obligations under this Lease, then, to the extent that Total Accumulated Credit
Amounts exist, not previously credited against future Basic Rent as contemplated
by the immediately preceding
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sentence, Landlord shall reduce the purchase price in connection with such
purchase by an amount equal to the Total Accumulated Credit Amounts.
Notwithstanding anything in this subsection 5(d) to the contrary, in no event
shall Landlord be obligated to make any payments to Tenant or, other than as
expressly provided in this subsection 5(d), grant Tenant any rights or
concessions in connection with any Total Accumulated Credit Amounts or any
portion thereof.
(e) If any Rent Adjustment results in this Lease being characterized as a
"capital lease" for Tenant under FAS 13, as verified to Landlord and Permitted
Beneficiary in writing by Tenant's regularly retained independent accounting
firm, Tenant or Landlord may terminate this Lease within thirty (30) days of
such Rent Adjustment. Any such termination of this Lease by Tenant shall be
effected only by Tenant paying to Landlord the applicable Termination Value (as
adjusted), the amount of the Lease Make-Whole Premium (as defined in Section
32), the applicable Loan Make-Whole Premium (as defined in Section 32), and all
installments of Basic Rent, Additional Rent and all other sums then due and
payable hereunder to and including the date of termination, without offset or
deduction for any reason. Tenant shall pay all charges, fees and expenses
incident to such termination by Tenant, including counsel fees and expenses, and
all applicable federal, state, and local taxes (other than any income or
franchise taxes levied upon or assessed against Landlord and those taxes assumed
in determining the Termination Value) which may be incurred or imposed by reason
of such termination.
(f) Subject to the provisions of subsection 5(d) above, the Basic Rent
payable by Tenant during any Extended Term of this Lease shall be an amount
equal to ninety-five percent (95%) of the then fair rental value of the Premises
(calculated without regard to the existence of this Lease) based upon rentals
for properties similar to the Premises in size, use and occupancy in the
Dallas/Fort Worth greater metropolitan area, determined at the beginning of each
such Extended Term by the procedure set forth on Attachment 3 to this Lease.
(g) Any payment of a Termination Value made pursuant to this Lease shall
be made only on a date which is also a Basic Rent Payment Date.
(h) In the event that Landlord is entitled to any investment tax credit
due to or in connection with the acquisition of the Premises or the construction
of any improvements (whether Previous Construction, Renovations, Permitted
Alterations or other construction) performed on any portion of the Premises,
there shall be no Rent/Termination Value Adjustments caused thereby, and Tenant
shall not receive any advantage therefrom, whether in the form of rent
concessions, any other concessions with respect to any of Tenant's obligations
under this Lease, or otherwise; provided, however, that (A) if Landlord is
permitted and able to "pass through" to Tenant any such investment tax credit
without cost or expense of any kind to Landlord, Landlord shall do so, so long
as Landlord shall be satisfactorily indemnified by Tenant as to (1) any
recapture which may later result or be required, and (2) any other costs or
expenses which may be incurred by Landlord in connection with such transfer of
any such
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investment tax credit, and (B) to the extent that Landlord is unable to "pass
through" to Tenant any such investment tax credit as provided in (A) above
notwithstanding Tenant's satisfaction of the indemnification requirement set
forth above, Landlord shall, upon receipt from Tenant of a satisfactory
indemnification agreement indemnifying Landlord with respect to any recapture
which may later result or be required of Landlord because of such investment tax
credit, pay to Tenant an amount equal to any actual tax credit Landlord receives
and is able to apply, as a result of such investment tax credit, against tax
which would otherwise be payable, which payment to Tenant shall be made within
thirty (30) days after Landlord files the subject tax return with the Internal
Revenue Service.
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 the Landlord and that Tenant shall pay all costs and
expense relating to the premises and the business carried on therein, unless
otherwise expressly provided in this Lease. Any amount or obligation herein
relating to the Premises which is not expressly declared to be that of the
Landlord shall be deemed to be an obligation of Tenant to be performed by Tenant
at Tenant's expense. Basic Rent, Additional Rent and all other sums payable
hereunder by Tenant, shall be paid without notice (except as otherwise expressly
provided in subsection 5(b) with respect to interest on payments made by
Landlord), demand, setoff, counterclaim, abatement, suspension, deduction or
defense.
(b) This lease shall not terminate, nor shall Tenant have any right to
terminate this Lease, nor shall Tenant be entitled to any abatement or reduction
of rent hereunder (except as otherwise expressly provided in subsection 5(d) and
subsection 14(c)), nor shall the obligations of Tenant under this Lease be
affected, by reason of (i) any damage to or destruction of all or any part of
the Premises from whatever cause; (ii) the taking of the Premises or any portion
thereof by condemnation, requisition or otherwise; (iii) the prohibition,
limitation or restriction of Tenant's use of all or any part of the Premises, or
any interference with such use; (iv) any eviction by paramount title or
otherwise; (v) Tenant's acquisition or ownership of all or any part of the
Premises otherwise than as expressly provided herein; (vi) any default on the
part of Landlord under this Lease, or under any other agreement to which
Landlord and Tenant may be parties; (vii) the failure of Landlord to deliver
possession of the Premises on the commencement of the term hereof; 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, the Additional Rent
and all other sums payable by Tenant hereunder shall continue to be payable in
all events and that the obligations of Tenant hereunder shall continue
unaffected, 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, Tenant does retain a separate and
8
independent right to xxx the Landlord; provided, however, any judgment in favor
of Tenant shall not xxxxx Basic Rent or Additional Rent or terminate Tenant's
obligations hereunder.
(c) Tenant agrees that it will remain obligated under this Lease in
accordance with its terms (except as otherwise expressly provided in subsection
5(d) and subsection 14(c)), 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.
(d) Tenant waives all rights which may now or hereafter be conferred by
operation of law (i) to quit, terminate or surrender this Lease or the Premises
or any part thereof, or (ii) to any abatement, suspension, deferment or
reduction of the Basic Rent, Additional Rent or any other sums payable under
this Lease.
(e) If Landlord shall voluntarily breach its covenant of quiet enjoyment
under this Lease, Tenant's obligations under this Lease shall thereafter be
equitably and appropriately reduced by Landlord and Tenant to reflect the effect
of such breach by Landlord.
7. Taxes and Assessments; Compliance with Law; Environmental Matters.
(a) Tenant shall pay or discharge all Impositions, as hereinafter
defined, when due. Notwithstanding the foregoing provision of this subsection
7(a), the term "Imposition" shall not include and Tenant shall not be required
to pay any franchise, corporate, estate, inheritance, succession, transfer
(other than transfer taxes, recording fees, or similar charges payable in
connection with a conveyance hereunder to Tenant), income, excess profits or
revenue taxes of any Landlord hereunder, other than any gross receipts or
similar taxes imposed or levied upon, assessed against or measures by the Basic
Rent, Additional Rent or any other sums payable by Tenant hereunder or levied
upon or assessed against the Premises (unless such gross receipts or similar
taxes are in lieu of an income, profit or revenue tax of Landlord, but only to
the extent of such substitution and only to the extent that such tax, assessment
or other charge would be payable if the Premises were the only property of
Landlord subject thereto). The exclusion contained in the immediately preceding
sentence shall not apply to any 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 demand therefor, evidence of the payment of all Impositions. In the
event that any Imposition levied or assessed against the Premises becomes due
and payable during the Term hereof and may be legally paid in installments,
Tenant shall have the option to pay such Imposition in installments. In such
event, Tenant shall be liable only for
9
those installments which become due and payable during the Term. To the extent
that any Impositions accrue during the Term of this Lease but do not become due
and payable until after the Term of this Lease, and/or to the extent that
Impositions are paid by Tenant which relate to periods of time after the
expiration of the Term of this Lease, appropriate adjustments and prorations of
the amounts of such Impositions shall be made between Landlord and Tenant
promptly after such expiration of the Term of this Lease.
(b) Tenant shall, at its expense, comply with and, subject to the
provisions of the Environmental Indemnity Agreement (hereinafter defined) with
respect to the environmental matters which are Landlord's responsibility as
therein provided, shall take such action as is necessary to cause the Premises
to comply with, all restrictive covenants, private restrictions, and
governmental statutes, laws, rules, orders, regulations and ordinances, the
failure to comply with which at any time would affect the Premises or any part
thereof, or the use thereof, including those which require the making of any
structural, unforeseen or extraordinary changes, alterations, or repairs,
whether or not any of the 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., and any requirements
of the State of Texas concerning accessibility standards for the handicapped,
including, without limitation, Tex. Rev. Civ. Stat. Xxx. Art. 601(b) (to the
extent applicable) and approval of plans and specifications by the Department of
(b) Licensing and Regulation as required by Tex. Rev. Civ. Stat. Xxx.
Art. 9102. Tenant shall, at its expense, comply with and perform all changes
required in order to obtain the Required Insurance (as hereinafter defined), and
with the provisions of all contracts, agreements, instruments and restrictions
existing at the commencement of this Lease or thereafter suffered or permitted
by Tenant affecting the Premises or any part thereof or the ownership, occupancy
or use thereof.
(c) Tenant, Landlord and Principal Mutual Life Insurance Company have
executed and delivered to one another, contemporaneously with the execution and
delivery of this Lease, original counterparts of that certain Environmental
Indemnity Agreement, a copy of which is attached hereto as Exhibit L and made a
part hereof for all purposes (the "Environmental Indemnity Agreement"), and the
provisions of which are incorporated herein by this reference. To the extent
that the provisions of (A) this Section 7(c) and Section 32, and (B) the
Environmental Indemnity Agreement conflict, the Environmental Indemnity
Agreement shall control. Tenant shall:
(i) not cause, suffer or permit a release or discharge of any
Hazardous Material (as defined in Section 32) at the Premises
(whether originating thereon or migrating to the Premises from other
property), or cause, suffer or permit any Hazardous Material to be
introduced to the Premises on or after the date of this Lease,
without the express prior written approval of Landlord and Permitted
Beneficiary, which may be withheld
without cause and in their sole discretion, and shall
promptly: (A) pay any claim against Tenant, Landlord,
Permitted Beneficiary or the Premises, (B) remove any
charge or lien upon any of the Premises, and (C) defend,
indemnify and hold Landlord and Permitted Beneficiary
harmless from any and all claims, expenses, liability, loss
or damage, resulting from any Hazardous Material released
or discharged at or from, or introduced to, the Premises
(1) by Tenant, on any date prior to the date of this Lease,
or (2) by Tenant or any other party on or after (but not
prior to) the date of this Lease;
(ii) not cause, suffer or permit any Hazardous Material to
exist on or discharge from any property owned or used by
Tenant which would result in any charge or lien upon the
Premises and shall promptly: (A) pay any claim against
Tenant, Landlord, Permitted Beneficiary or the Premises,
(B) remove any charge or lien upon the Premises, and (C)
defend, indemnify and hold Landlord and Permitted
Beneficiary harmless from any and all claims, expenses,
liability, loss or damage, resulting from the existence of
any such Hazardous Material;
(iii) notify Landlord and Permitted Beneficiary in writing
of any Hazardous Material that exists on or is released or
discharged from, at or onto the Premises (whether
originating thereon or migrating to the Premises from other
property) within ten (10) days after Tenant first has
knowledge of such existence of discharge;
(iv) comply, and cause the Premises to comply, with all
statutes, laws, ordinances, rules and regulations of all
local, county, state or federal authorities having
authority over the Premises or any portion thereof or their
use; [and comply at Tenant's sole cost and expense, with
each and every recommendation set forth in that certain
report entitled "Closure Confirmation Document" concerning
the Premises prepared by Xxxxxx X. Xxxxx & Associates,
Inc., dated April 1, 1993];
(v) perform all of the environmental remediation work
described on Exhibit J attached hereto and made a part
hereof (the "Remediation") in a careful, proper and timely
manner, completing same no later than December 31, 1993, in
accordance with the specifications and requirements set
forth on Exhibit J hereto, and subject to Landlord's
approval in its sole and absolute discretion, and the
approval of such inspecting environmental remediation
experts as Landlord may designate or employ; and
(vi) to the extent that the Renovations involve the
installation at the Premises of any underground storage
tanks ("USTs"), Tenant shall, in connection with any
installation,
maintenance, operation and any future removal of such USTs,
comply in all respects with all applicable statutes, laws,
ordinances, rules, and regulations of all local, county,
state, or federal authorities having jurisdiction over the
USTs. Without limiting the foregoing, Tenant agrees that it
shall: (A) comply with the regulations, guidance documents,
and requirements of the Texas Water Commission ("TWC
Regulations") in the design, technical specifications,
installation, and operation of the USTs; (B) to the extent
registration is required, register the USTs as the operator
with the Texas Water Commission ("TWC"); (C) provide the
financial assurance required in connection with such
registration; (D) respond to and remediate any releases or
spills associated with the USTs in full compliance with TWC
Regulations; (E) at the option of Landlord, excavate,
remove and dispose of the USTs at the expiration or
termination of this Lease in full compliance with TWC
regulations and restore the area from which the USTs were
removed to substantially the same condition as before the
USTs were installed, it being understood and agreed that,
if Landlord elects not to require the removal of USTs as
provided above, the USTs shall be and thereafter remain the
property of Landlord after the expiration or termination of
this Lease; and (F) defend, indemnify, and hold Landlord
and Permitted Beneficiary harmless from any and all claims,
expenses, liability, costs, obligations, loss or damage
arising in any manner in connection with such USTs.
Tenant's obligations and liabilities under this subsection 7(c) shall survive
the expiration of this Lease. The date of Tenant's satisfactory completion of
the Remediation as required by subsection 7(c)(v) above shall be the date upon
which Tenant delivers to Landlord, at Tenant's sole cost and expense, an
environmental report acceptable in all respects to Landlord in the exercise of
its sole and absolute discretion, from an environmental audit firm designated by
Landlord, certifying to Landlord that the Remediation has been satisfactorily
completed; provided, however, that nothing herein shall be interpreted as
relieving Tenant of Tenant's obligation to complete the Remediation and to
deliver the report herein described on or before the date set forth above in
subsection 7(c)(v).
8. Indemnification. Tenant agrees to pay, and to protect, defend,
indemnify and save harmless Landlord, Permitted Beneficiary and their agents
from and against any and all liabilities, losses, damages, costs, expenses
(including all reasonable attorney's fees and expenses of Landlord), causes of
action, suits, claims, demands or judgments of any nature whatsoever (i) arising
from any injury to, or the death of, any person or damage to property on the
Premises or upon adjoining sidewalks, streets or right of ways, in any manner
growing out of or connected with the use, non-use, condition or occupation of
the Premises, adjoining sidewalks, streets or right of ways, so long as not
occasioned by a grossly negligent act of Landlord, Permitted Beneficiary, or
their agents, servants, employees or assigns, and/or (ii) arising from violation
by
Tenant of any agreement or condition of this Lease, or any contract or agreement
to which Tenant is a party or any restriction, law, ordinance or regulation, in
each case affecting the Premises or any part thereof or the ownership, occupancy
or use thereof, so long as not occasioned by a grossly negligent act of
Landlord, Permitted Beneficiary, or their agents, servants, employees or
assigns. If Landlord, Permitted Beneficiary or any agent of Landlord or
Permitted Beneficiary shall be made a party to any such litigation commenced
against Tenant, and if Tenant, at its expense, shall fail to provide Landlord,
Permitted Beneficiary or their agents with counsel (upon Landlord's request)
selected by Tenant, approved by Landlord, which approval shall not be
unreasonably withheld, Tenant shall pay all costs and attorneys' fees and
expenses incurred or paid by Landlord, Permitted Beneficiary or their agents in
connection with such litigation. Tenant's obligations and liabilities under this
Section 8 shall survive the expiration or termination of this Lease.
9. Liens; Grants of Easements.
(a) Tenant will not, directly or indirectly, (i) create or permit to be
created, or (ii) except for those caused by Landlord's gross negligence, permit
to remain, and will promptly discharge, at its expense, 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 (1) any encumbrances permitted by
a Permitted Deed of Trust (as defined in subsection 32) and (2) any encumbrance
or charge permitted in the subsections below. 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, except with respect to the
Previous Construction (hereinafter defined). 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 or other liens for any such labor, services or materials
shall attach to or affect the interest of Landlord in and to the Premises.
(b) Pursuant to an agreement with the prior owner of the Premises, Tenant
commenced construction of certain improvements prior to Landlord's purchase of
the Premises and prior to the date of this Lease (the `Previous Construction"),
and Tenant has indemnified Landlord and Principal Mutual Life Insurance Company
with respect to such Previous Construction by executing and delivering to
Landlord contemporaneously with the execution of this Lease that certain
Agreement Regarding Liens dated as of even date herewith. Tenant represents and
warrants to Landlord that all costs of labor and material in connection with the
Previous Construction have been paid in full or will be paid in full in a manner
consistent with industry practice, from time to time as such expenses become
payable. Tenant shall
deliver lien waivers relating to all portions of the Previous Construction, any
Permitted Alterations, and all portions of the Renovations (defined in Section
11 hereof) undertaken after the date of this Lease. Tenant covenants to pay all
contractors, subcontractors, materialmen and other parties providing labor,
services or material in connection with the Previous Construction, any Permitted
Alterations and/or the Renovations in a manner which is in accordance with
industry practice, and to take all actions to prevent any mechanic's or
materialmen's liens or affidavits in connection with the Previous Construction,
any Permitted Alterations and/or the Renovations from being recorded or
remaining effective against any portion of the Premises. Tenant will deliver to
Landlord and Permitted Beneficiary no sooner than 150 days after the completion
of all Previous Construction, any Permitted Alterations and the Renovations,
respectively, and no later than 185 days after the completion of each, an
abstractor's certificate or other title update report, in form satisfactory to
Landlord (a "Title Update"), together with copies of all documents listed
therein, which Title Update shall describe all documents recorded in connection
with the Premises since the date of this Lease, and Tenant shall obtain a
release of or bond off of the Premises any mechanic's materialmen's or other
lien described in the Title Update within 30 days after Tenant's receipt of the
Title Update.
(c) Landlord hereby appoints Tenant its agent and attorney-in-fact and
authorizes Tenant (i) to grant easements, licenses, rights-of-way and other
rights and privileges in the nature of easements; (ii) to release existing
easements and appurtenances which are for the benefit of the Premises; and (iii)
to execute and deliver any instrument necessary or appropriate to confirm such
grants, releases or consents to any person, with or without consideration, in
each case, however, only if such action does not materially or adversely impact
the value of the Premises and only upon compliance with the provisions of any
Permitted Deed of Trust. Tenant agrees that it will notify Landlord of any such
grant or release and will forward to Landlord promptly after the execution
thereof a copy of any instrument confirming such grant or release. Any
consideration paid for such grant or release shall be apportioned between Tenant
and Landlord as their interests may then appear. Tenant agrees that Tenant will
remain obligated under the terms of this Lease to the same extent as if such
easement, license, right-of-way, other right or privilege had not been granted,
such easement or appurtenance had not been released, such transfer had not been
consented to, and such instrument had not been executed and delivered, and that
Tenant will perform all obligations of the grantor, releasor or transferor under
such instrument of grant, release or consent.
10. Maintenance and Repair; Completion of Improvements.
(a) Tenant acknowledges that it has received the Premises in its "as is"
condition. Tenant agrees that, at its expense, it shall keep and maintain the
Premises, including any altered, rebuilt, additional or substituted buildings,
structures and other improvements thereto, in good repair and appearance, except
for ordinary wear and tear. Tenant shall also make promptly, all structural and
nonstructural, foreseen and
unforeseen, ordinary and extraordinary changes and repairs of every kind which
may be required to be made to keep and maintain the Premises in such good
condition, repair and appearance as a class A office facility, of similar size,
use, occupancy and appearance, located in the Dallas/Fort Worth greater
metropolitan area, and Tenant will keep the Premises orderly and free and clear
of rubbish. Tenant covenants to perform or observe all terms, covenants or
conditions of any reciprocal easement or maintenance agreement to which it may
at any time be a party or to which the Premises are currently subject. Tenant
shall, at its expense, use its best efforts to enforce compliance with any
reciprocal easement or maintenance agreement benefiting the Premises by any
other person subject to such agreement. Landlord shall not be required to
maintain, repair or rebuild, or to make any alterations, replacements or
renewals of any nature to the Premises, or any part thereof, whether ordinary or
extraordinary, structural or nonstructural, foreseen or not foreseen to maintain
the Premises or any part thereof in any way. Tenant hereby expressly waives the
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 abandon the Premises, it shall give
Landlord and any Permitted Beneficiary immediate notice thereof.
(b) 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, or shall violate the agreements or conditions
contained in any restrictive covenant affecting the Premises or any part
thereof, or shall impair the rights of others under or hinder or obstruct any
easement or right-of-way to which the Premises are subject, then, promptly after
the written request of Landlord or any person affected by any such encroachment,
violation, impairment, hindrance or obstruction, Tenant shall, at its expense,
either (i) obtain effective 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. Any such
alteration or removal shall be made in conformity with the requirements of
subsection 11(a) to the same extent as if such alteration or removal were an
alteration under the provisions of subsection 11(a).
11. Alterations.
(a) Subject to Tenant's covenants in Section 17, Tenant may, at its
expense, at any time after written notice to Landlord and Permitted Beneficiary
of its plans (which notice shall include a description of and the plans and
specifications for the proposed additions or alterations), but without the
consent of such parties other than the approval of the plans and specifications
therefor, make Permitted Alterations to the Premises, provided, that (i) all
Permitted Alterations are architecturally consistent with existing Improvements,
as verified by an architect's
certificate addressed to Landlord and Permitted Beneficiary, from a nationally
recognized architectural firm; (ii) such actions shall be performed in a good
and workmanlike manner; (iii) such Permitted Alterations shall be expeditiously
completed in compliance with all laws, ordinances, rules, regulations and
requirements applicable thereto, (iv) whether or not any subletting or
assignment regarding any portion of the Premises has occurred, any such
Permitted Alterations, whether performed by any sublessee or assignee, or by
Tenant, shall not violate or be inconsistent with any of the Use Restrictions,
and (v) Tenant is otherwise in compliance with the provisions of this Lease.
Tenant shall promptly pay all costs and expenses of each Permitted Alteration,
discharge all liens arising therefrom and procure and pay for all permits and
licenses required in connection therewith.
(b) Subject to Tenant's covenants contained in Section 17, Tenant may,
at its expense, but only with Landlord's and Permitted Beneficiary's prior
written consent, construct upon the Premises additions to or alterations,
substitutions or replacements of the Improvements, other than Permitted
Alterations, upon compliance with all the terms and conditions set forth in
subsection 11(a). Landlord's and Permitted Beneficiary's written consent may be
withheld or denied in the exercise of such parties' sole and absolute
discretion, and shall be granted only if such parties are able to obtain the
opinion of such parties' respective tax counsel that such additions,
alterations, substitutions or replacements by Tenants (other than Permitted
Alterations) will not result in Tenant obtaining an ownership interest in any
portion of the Premises, or result in any taxable income to Landlord. Tenant
shall pay all costs, fees and expenses associated with obtaining such legal
opinions. All Improvements [including, without limitation, those described in
Section 11(a)] shall be and remain part of the realty and the property of
Landlord and subject to this Lease. Tenant may, at its expense, install,
assemble or place any items of trade fixtures, machinery or equipment upon the
Premises. Such trade fixtures, machinery or equipment shall be and remain the
property of Tenant and Tenant may remove the same from the Premises at any time
prior to the termination of this Lease, provided that Tenant shall repair any
damage to the Premises resulting from such removal. Notwithstanding anything in
this subsection 11(b) to the contrary, (i) so long as no default then exists
under this Lease, Tenant may, within thirty (30) days of the expiration or
termination of the Term of this Lease, remove (but shall not be obligated to
remove) from the Premises any trade fixtures of Tenant and such trade fixtures
so removed shall remain the property of Tenant, but any trade fixtures of Tenant
or other property not removed from the Premises within thirty (30) days of the
expiration or termination of the Term of this Lease shall immediately become the
property of Landlord, (ii) all costs of repair of the Premises necessitated by
Tenant's removal from the Premises of Tenant's trade fixtures or other property
shall be borne solely by Tenant, (iii) all costs of removal of any of Tenant's
trade fixtures or other property which is not removed from the Premises by
Tenant within thirty (30) days of the expiration or termination of this Lease,
as well as the cost of any repair of the remainder of the Premises necessitated
by any removal of such trade fixtures or other property by
Landlord, shall be borne solely by Tenant, and (iv) the provisions of this
subsection shall survive any expiration or termination of the Lease.
(c) Subject to Tenant's covenants in Section 17, Tenant shall
construct and accomplish certain improvements, renovations and retrofitting in
connection with the Improvements (collectively, the "Renovations") in accordance
with the plans and specifications described in the documents attached hereto and
made a part hereof as Exhibit K and the development budget set forth on Exhibit
I, which Renovations shall be completed no later than April 30, 1994, and
without any expenditures other than those specified in Exhibit I (except for
expenditures for Permitted Alterations). Tenant shall obtain all necessary
consents, permits, certificates, easements and approvals as may be necessary or
appropriate for the construction and/or completion of the Renovations. Landlord
shall pay to Tenant for construction of the Renovations on behalf of Landlord
and for the Fees and Costs (as defined in Section 32), the amount of
$15,932,616.00 contemporaneously with the execution of this Lease (the
"Renovation Cost"). The cost of the Renovations, all Fees and Costs, and any
related costs shall not, in the aggregate, exceed the Renovation Cost except to
the extent that the Renovations constitute Permitted Alterations. In the event
that any portion of the Renovation Cost remains unspent by Tenant after
completion of the Renovations, any such remaining funds shall be repaid to
Landlord, the Basic Rent and Termination Values shall be adjusted as provided in
Section 5 of this lease (due to the change in the assumption as to the cost of
the Renovations), and Tenant shall pay to Landlord with the payment of such
remaining funds (i) a Lease Make Whole Premium, and (ii) any Loan Make-Whole
Premium. Monthly during the course of the construction of the Renovations,
Tenant shall deliver to Landlord and Permitted Beneficiary (and, upon direction
by Landlord and/or Permitted Beneficiary, any title company as may be
designated) as evidence of the application by Tenant of portions the Renovation
Cost toward the completion of the Renovations (1) American Institute of
Architects form draw requests, completed and executed by Tenant's supervising
architect, (2) a certification executed by Tenant, addressed to Landlord and
Permitted Beneficiary, specifying with respect to the Development Budget set
forth on Exhibit I, and with respect to the categories set forth on Attachment
2, the category of each expenditure during such month, the amount previously
expended with respect to each such category, and the amount which will be
necessary to be expended to complete the items designated in each such category,
and (3) lien waives executed by the contractors, subcontractors and materialmen
with respect to all expenditures indicated in the documentation described in (1)
and (2) above, in form and substance reasonably satisfactory to Landlord and
Permitted Beneficiary. From time to time during the construction of the
Renovations, and upon completion of the Renovations, Tenant will deliver to the
title company designated by Landlord and Permitted Beneficiary, lien waivers and
other documentation as may be required by such title company, and take such
other action as may be necessary (including, without limitation, payment of any
premiums and other charges by the title company) (A) to obtain and deliver to
Landlord and Permitted Beneficiary, respectively, endorsements to Landlord's
Owner Policy of Title Insurance and Permitted Beneficiary's Mortgagee Policy of
17
Title Insurance received contemporaneously with the execution and delivery of
this Lease, increasing the coverage thereof to the extent of amounts paid for
construction of the Renovations, and (B) upon completion of the Renovations, to
increase the actual coverage of each of such policies to the full face amount of
each of such policies as set forth on Schedule A thereto, and to delete from
both of such title insurance policies any "pending disbursements" exception and
any "completion of improvements" exception, without inclusion of any exceptions
to either of said policies not present on the date of the original issuance of
such policies. In the event that all of the Renovations are not completed and
the Renovations and all other portions of the Improvements "placed in service"
(as that term is used in the Code, hereinafter referenced as "placed in
service") on or before April 30, 1994 (the "Renovation Deadline"), Tenant shall
purchase the Premises from Landlord for a purchase price equal to the
Termination Value, plus a Lease Make Whole Premium, plus any Loan Make Whole
Premium, plus any taxes not imputed into the Termination Value; provided,
however, that the Renovation Deadline may, at Tenant's option, be extended by
Tenant until October 30, 1994, by paying an extension fee to Landlord equal to
one half of one percent (.5%) of the total amount of Landlord's investment in
the Premises (including all acquisition costs and the Renovation Cost), plus all
expenses incurred in connection with any such extension, so long as the Basic
Rent and Termination Values are adjusted, if necessary, as set forth in Section
5 of this Lease. The date on which the Renovations are Placed in Service shall
be conclusively determined by the date on which Tenant delivers to Landlord a
certificate of occupancy for all of the space which is the subject of the
Renovations, together with an executed architect's certificate addressed to
Landlord and Permitted Beneficiary certifying that the Renovations have been
completed in accordance with the plans and specifications described in Exhibit K
and as otherwise required by the terms of this Lease. In the event that the
Renovations do not conform to the component depreciation assumptions described
in Exhibit C of this Lease or, if the Renovations are completed prior to t he
Renovation Deadline but after the assumed dates for the Renovations and
Improvements being Placed in Service as set forth on Exhibit C, the Basic Rent
and Termination Values shall be adjusted as provided in Section 5 of this Lease.
After the completion of the Renovations as they pertain to Building A (as
defined in Exhibit C hereto) and again after the completion of the Renovations
as they pertain to Building B (as defined in Exhibit C hereto) and to Building C
(as defined in Exhibit C hereto), determination as to the conformity of such
Renovations with the previously approved plans and specifications therefor, and
confirmation that the depreciation components therefor described in Attachment 2
are included in the Renovations as completed, shall be accomplished, and, as to
each such building after its completion, shall be effected by (I) the delivery
by Tenant to Landlord of a certificate addressed to Landlord, describing all
actual costs incurred to date in connection with the Renovations and allocating
all of such costs among the various categories of expenditures describe din
Attachment 2, and (II) the preparation of an updated appraisal of the Premises
provided to Landlord at Tenant's sole cost and expense, updating the appraisal
received by Landlord contemporaneously with the execution of this Lease,
prepared by Xxxxxx Xxxxxx and Xxxxx Xxxxxxxxx of Xxxxxx X. Xxxxx & Associates,
Inc.
containing a valuation dated as of April 1, 1993 (the "April, 1993 Appraisal").
The form of said certificates and appraisal updates is to be satisfactory to
Landlord in its sole discretion, and such items are to be delivered for the
purpose of confirming that such Renovations have been completed in accordance
with Exhibit K, adjusting the component depreciation amounts to reflect the
actual costs incurred in completing such Renovations, and calculating any
necessary Rent/Termination Value Adjustments as may be appropriate in accordance
with the provisions of Section 5(c) of this Lease as a result of the information
set forth on such updated appraisals and certificates delivered to Landlord. The
appraisal updates are not intended to adjust the specific items from one
depreciable class to another. Notwithstanding anything in this Lease to the
contrary, in addition to the requirements set forth above, all Renovations shall
be completed in a manner reasonably satisfactory to Landlord, and Landlord shall
have the right, from time to time, to inspect the progress of the Renovations
and to require correction of any defects or deficiencies or any non-compliance
with the plans and specifications attached to this Lease in Exhibit K or with
the development budget attached hereto as Exhibit I.
(d) Notwithstanding anything in this section 11 to the contrary with
respect to (i) the source of funds to be used, or (ii) the cost of construction
of improvements by Tenant or the cost of completion of the Renovations by
Tenant, Tenant may, without Landlord or Permitted Beneficiary's prior consent,
but in any event subject to the provisions of Section 17 of this Lease, expend
Tenant's own funds for construction of Permitted Alterations.
12. Insurance. (a) Tenant shall maintain, or cause to be maintained,
at its sole expense, the following insurance on the Premises (the ""required
Insurance"):
(i) Property insurance insuring the building and improvements
for perils covered by the causes of loss - special form (all
risk) and in addition, ordinance or law coverage, flood,
earthquake and boiler and machinery (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 foregoing. The policy shall name Landlord as an
additional insured and loss payee and all Permitted
Beneficiaries or mortgagee of any deed of trust or mortgage
encumbering the Premises shall be shown as a mortgage
holder. Not more frequently than every year if in the
opinion of the Landlord, the amount of Tenant's property
insurance is found to be inadequate, Tenant will increase
the insurance amount as required by the Landlord.
(ii) Commercial general liability insurance naming the Landlord
and Permitted Beneficiary as additional insureds against any
and all claims as are customarily covered under a standard
policy form routinely accepted by
Permitted Beneficiary, for bodily injury and property
damage occurring in, or about the Premises arising out of
Tenant's use and occupancy of the Premises. Such insurance
shall have a combined single limit of not less than Two
Million Dollars ($2,000,000) per occurrence with a Twenty
Million Dollar ($20,000,000) aggregate limit and excess
umbrella liability insurance in the amount of at least Five
Million Dollars ($5,000,000). Tenant shall be required to
increase its insurance limits as may be required from time
to time by the Permitted Beneficiary or as may reasonably
be required by Landlord 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 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.
(iii) Workers' compensation insurance in accordance with
statutory law and employers' liability insurance with a
limit of not less than $100,000 per employee and $500,000
per occurrence.
(iv) Builders risk insurance insuring perils covered by the
causes of loss - special form (all risk) shall be purchased
for the value of the alteration and/or additions made to
the Premises when the work is not insured under Tenant's
property insurance policy.
(v) Such other insurance as Landlord may, from time to time,
reasonably require, or which may, from time to time, be
required by Landlord's beneficiaries or mortgagees of any
deed of trust or mortgage encumbering the Premises, so long
as such other insurance is customarily required to be
carried on similar properties by institutional lenders in
the industry.
(b) The policies required to be maintained by Tenant shall be with
companies having a rating of not less than A with a financial class of at lease
X in the most current issue of Best's Insurance Reports. Insurers shall be
licensed to do business in the state in which the Premises are located and
domiciled in the USA. Any deductible amounts under any insurance policies
required hereunder shall not exceed (1) $500,000.00, so long as Tenant's
financial condition is rated not less than "BBB+" by Standard & Poor's
Corporation and "Baa1" by Xxxxx'x Investment Service; (2) $250,000.00, so long
as Tenant's financial conditions is rated not less than "BBB" by Standard &
Poor's Corporation and "Baa2" by Xxxxx'x Investment Service; (3) $100,000.00, so
long as Tenant's financial conditions is rated not less than "BBB-" by Standard
& Poor's Corporation and "Baa3" by Xxxxx'x Investment Service; or (4) $5,000.00
at any time during which Tenant's financial condition is rated less than "BBB-"
by Standard & Poor's
Corporation or "Baa3" by Xxxxx'x Investment Service. Certificates of insurance
shall be delivered to Landlord prior to the commencement date and annually
thereafter at least fifteen (15) days prior to the expiration date of the old
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
as required by this Lease. Each policy of insurance shall provide notification
to Landlord at least thirty (30) days prior to any cancellation or modification
to reduce the insurance coverage.
(c) (i) Insurance claims by reason of damage to or destruction of any
portion of the Premises shall be adjusted by Tenant; provided, however, that
although Tenant shall make the final decision with respect to any such
adjustment, Tenant shall, promptly after such damage or destruction, advise
Landlord and Permitted Beneficiary of such occurrence and consult with Landlord
and Permitted Beneficiary throughout the process of adjusting any such claim,
and provided further that both Landlord and any Permitted Beneficiary shall have
the right to be and remain involved in the adjustment process and to receive
copies of all correspondence and documentation pertaining thereto. Tenant shall
keep Landlord and Permitted Beneficiary fully advised as to all matters on a
current basis. 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.
(c)(ii) Subject to the provisions of Section 13, proceeds from the property
insurance policy shall be made available from Landlord or Permitted Beneficiary
to Tenant, but only against 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 theretofore
received payment for such work and has sufficient funds remaining to complete
the work free of liens or claims. Subject to the provisions of Section 13, any
proceeds remaining after Tenant has repaired the Premises pursuant to Section 13
shall be delivered to Tenant but only to the extent that the aggregate amount of
such proceeds so remaining and all amounts theretofore paid to Tenant pursuant
to this sentence do not exceed $100,000.00. If such aggregate amounts exceed
$100,000.00, the excess may be retained by Landlord and applied in reduction of
the principal amount of the indebtedness secured by any Permitted Deed of Trust
or paid to Tenant at Landlord's sole option. After the retention of any such
amount by Landlord, each installment of Basic Rent payable on and after the
second Basic Rent Payment Date occurring after such retention shall be equitably
reduced but in no event shall Basic Rent be reduced lower than the monthly debt
service payments due under any Permitted Deed of Trust. No payment shall be made
to Tenant pursuant to this subsection 12(c) if any default shall have happened
and be continuing under this Lease. Notwithstanding anything herein to the
contrary, this subsection (c)(ii) shall not apply or have any effect at any
time during which Tenant's financial condition is rated no less than "BBB" by
Standard & Poor's Corporation and "Baa2" by Xxxxx'x Investment Service.
(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. Tenant shall
repay to Landlord, as Additional Rent, the amount so paid promptly upon demand.
In addition, Landlord may recover from Tenant and Tenant agrees to pay, as
Additional Rent, any and all reasonable expenses (including attorneys' fees) and
damages which Landlord may sustain by reason of the failure to Tenant to obtain
and maintain such insurance.
(e) Landlord or Permitted Beneficiary shall not be limited in the proof of
any damages which Landlord or Permitted Beneficiary may claim against Tenant
arising out of or by reason of Tenant's failure to provide and keep in force
insurance, as provided above, 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 and Permitted Beneficiary 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, provide the Required Insurance. Tenant shall indemnify and hold harmless
Landlord and Permitted Beneficiary for any liability incurred by Landlord or
Permitted Beneficiary arising out of any deductibles for Required Insurance.
(f) Provided (i) no Event of Default has occurred and is continuing; (ii)
Tenant maintains a Consolidated Tangible Net Worth of at least $750,000,000.00
determined in accordance with generally accepted accounting principals; and
(iii) Tenant's financial condition is not rated less than "BBB+" by Standard &
Poor's Corporation and "Baal" by Xxxxx'x Investment Service, Tenant may
self-insure the Required Insurance. Tenant shall provide annually to the
Landlord a certificate indicating its decision to self-insure in the form
attached hereto as Exhibit E. For purposes of this subsection (f), the term
"Consolidated Tangible Net Worth" shall mean "equity, plus the liability
appearing on the balance sheet of Tenant for post retirement benefits other than
pensions recorded in accordance with Statement of Financial Accounting Standards
No. 106, less net intangibles arising from acquisitions (or goodwill) "
calculated as of the end of each fiscal quarter year. Notwithstanding anything
in this subsection 12(f) to the contrary, in the event that a breach of this
subsection 12(f) is caused solely by the effect of a future change in accounting
principle, Landlord agrees to negotiate with Tenant in good faith to resolve
and/or remedy such breach.
13. Casualty.
(a) If, during the Primary Term, a part of the Premises shall be damaged or
destroyed by casualty, and if the estimated cost of rebuilding, replacing and
repairing the same shall be or exceed $100,000.00, Tenant shall promptly notify
Landlord and Permitted Beneficiary thereof; and
(whether or not such estimated cost shall be or exceed $100,000.00 and whether
or not all or a portion of the Premises is destroyed) 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 subsection 11(a) in such manner as to restore the same to the same condition,
as nearly as possible, as existed prior to such casualty and there shall be no
abatement of Basic Rent or Additional Rent.
(b) If, after the Primary Term and during any Extended Term, the Premises
is substantially (75% of the Improvements) or totally destroyed by casualty,
Tenant shall have the option to either (i) rebuild or restore the Premises and
receive the necessary portion of the insurance proceeds generated therefrom to
pay for such rebuilding or restoration, or (ii) terminate this Lease not less
than one (1) year after delivery of notice to Landlord of Tenant's intention to
do so and upon payment to Landlord of all amounts then due and payable under
this Lease, with all insurance proceeds being paid to and retained by Landlord,
or, in the event of and to the extent of self insurance, an amount equal to the
insurance proceeds which would have been available if insurance coverage had
then been in place.
(c) Notwithstanding anything in this Section 13 to the contrary, during any
period of time when there continues to exist a default by Tenant under the terms
of this Lease, Landlord, in the exercise of its sole and absolute discretion,
shall have the right to receive any insurance proceeds from any casualty and to
apply same toward payment of any indebtedness owed to any Permitted Beneficiary
instead of allowing such proceeds to be used by Tenant for the rebuilding or
restoration of the damaged portion of the Premises. In such event, there shall
be an equitable adjustment in the Rent/Termination Value after any cure of such
default, to become effective as of the date of such cure.
14. Condemnation.
(a) Subject to the rights of Tenant set forth in this Section 14, 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 pursuant to any
law, general or special, or by reason of the temporary taking of the use or
occupancy of the Premises or any part thereof, by any governmental authority,
civil or military, whether the same shall be paid or payable in respect of
Tenant's leasehold interest hereunder or otherwise. Landlord shall be entitled
to participate in any such proceeding and the expenses thereof (including
counsel fees and expenses) shall be paid by Tenant.
(b) (1) If, during the Primary Term (i) the entire Premises shall be taken
by or on account of any actual or threatened condemnation or other eminent
domain proceeding pursuant to any law, general or special or (ii) if 25% of the
Improvements or 50% of the Land Parcel is taken and said portion renders the
remaining premises uneconomic for the continued use or occupancy in the business
of Tenant, in the good faith judgment of Tenant's
Board of Directors, Tenant's Chief Executive Officer, or the Executive Vice
President of TRW Information Systems and Services, then Tenant shall deliver a
Purchase Offer (as defined in Section 32) to Landlord, specifying a termination
date (the "Termination Date") occurring not less than one (1) year after the
delivery of such Purchase Offer and a purchase price equal to the Termination
Value plus all other amounts then due and payable under this Lease, and this
Lease shall continue in full force and effect without any abatement of rent,
notwithstanding any taking, until the Termination Date. The Purchase Offer shall
be for a purchase of the Premises and any Net Award (as hereinafter defined) and
shall be accompanied by a Tenant's Certificate stating either that the
conditions set forth in clause (i) or (ii) of this subsection 14(b) (l) have
been fulfilled. If the conditions set forth in clause (i) or (ii) of this
subsection 14(b) (l) are fulfilled and if Tenant shall have failed to deliver a
Purchase Offer as required above, Tenant conclusively shall be presumed to have
made a Purchase Offer on a date which is sixty (60) days after any such taking
(or such later date as is agreed to in writing by Landlord), and in the event
Tenant is so presumed to have made a Purchase Offer, the Termination Date shall
be deemed to be ninety (90) days after such Purchase Offer is presumed to have
been made; but nothing in this sentence shall relieve Tenant of its obligation
actually to deliver such Purchase Offer.
(b)(2) If, after the Primary Term and during any Extended Term, the
Premises is substantially (25% of the Improvements or 50% of the Land Parcel) or
totally condemned or taken pursuant to other eminent domain proceedings, Tenant
shall have the option to either (i) rebuild or restore the Premises to the
extent possible and receive the necessary portion of the proceeds from the
condemnation or other eminent domain proceedings, or (ii) terminate this Lease
not less than one (1) year after delivery of notice to Landlord of Tenant's
intention to do so and upon payment to Landlord of all amounts then due and
payable under this Lease, with all condemnation or other eminent domain proceeds
being paid to and retained by Landlord.
(c) If during any Term (i) a portion of the Premises shall be taken by
condemnation or other eminent domain proceedings, which taking is not sufficient
to require that Tenant give a Purchase Offer or (ii) the use or occupancy of the
Premises or any part thereof shall be temporarily taken by any governmental
authority; then this Lease shall continue in full effect without abatement or
reduction of Basic Rent, Additional Rent or other sums payable by Tenant
hereunder notwithstanding such partial or temporary taking. Tenant shall,
promptly after any such temporary taking ceases, at its expense, repair any
damage caused thereby in conformity with the requirements of subsection 11(a) so
that, thereafter, the Premises shall be, as nearly as possible, in a condition
as good as the condition thereof immediately prior to such taking. In the event
of any such partial taking, Landlord shall make the Net Award (as hereinafter
defined) available to Tenant to make such repair but, if such Net Award shall be
in excess of $250,000.00, only against 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 theretofore received payment for such work. Any Net Award remaining after
such repairs have been made, shall be delivered to Tenant; but only to the
extent that the aggregate amount of such Net Award so remaining and all amounts
theretofore paid to Tenant pursuant to this sentence do not exceed $250,000.00.
If such amounts exceed $250,000.00, the excess may be retained by Landlord and
applied in reduction of the principal amount of the indebtedness secured by any
Permitted Deed of Trust then outstanding at Landlord's sole option. If Landlord
retains any such amount the Basic Rent payable on or after the second Basic Rent
Payment Date occurring after such retention shall be reduced equitably, but in
no event shall the Basic Rent be reduced to an amount less than the Debt Service
Amounts. In the event of such temporary requisition, Tenant shall be entitled to
receive the entire Net Award payable by reason of such temporary requisition or
portion of such temporary requisition occurring during the term hereof, less any
costs incurred by the Landlord in connection therewith. If the cost of any
repairs required to be made by Tenant pursuant to this subsection 14(c) shall
exceed the amount of the Net Award, the deficiency shall be paid by Tenant.
Notwithstanding anything herein to the contrary, no payments shall be made to
Tenant pursuant to this subsection 14(c) if any default or Event of Default
shall have happened and shall be continuing under this Lease,
(d) 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 expenses for such proceeding not otherwise paid by Tenant
in the collection of such amounts, 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 expenses
incurred as a result thereof not otherwise paid by Tenant and the collection of
such amounts.
(e) Any minor condemnation or taking of the Premises for the construction
or maintenance of streets or highways shall not be considered a condemnation or
taking for purposes of this Section 14 so long as the Premises shall not be
materially or adversely affected, ingress and egress for the remainder of the
Premises shall be adequate for the business of Tenant and the provisions of any
Permitted Deed of Trust relating thereto shall be complied with. Tenant agrees
that it will notify Landlord of any such condemnation.
(f) Notwithstanding anything in this Section 14 to the contrary, during any
period of time when there continues to exist a default by Tenant under the terms
of this Lease, Landlord, in the exercise of its sole and absolute discretion,
shall have the right to receive any Net Award and to apply same toward payment
of any indebtedness owed to any Permitted Beneficiary instead of allowing such
Net Award to be used by Tenant for the rebuilding or restoration of any affected
portion of the Premises. In such event, there shall be an equitable adjustment
in the Rent/Termination Value
after any cure of such default, to become effective as of the date of such cure.
15. Procedure After Purchase Offer: Procedure in Event of Purchase.
(a) If Landlord shall reject any Purchase Offer not later than the tenth
(10th) day prior to the Termination Date or purchase date specified in such
Purchase Offer, this Lease shall terminate on such date (except with respect to
obligations and liabilities of Tenant under this Lease, actual or contingent,
which have arisen on or prior to such termination, all of which shall survive
any termination of this Lease), upon payment by Tenant of the Basic Rent,
Additional Rent and all other sums then due and payable hereunder to and
including the date of termination without offset or deduction for any reason.
Upon a purchase of the Premises pursuant to subsection 14(c) and the payment to
the Landlord of the purchase price set forth on Exhibit F, Landlord shall convey
the Premises and all its right, title and interest in and to the Net Award
(whether or not such Award shall have been received by Landlord), to Tenant or
its designee, as provided in subsections 15(b), 15(c) and 15(e) below.
(b) If the Premises or any part thereof shall be purchased by Tenant
pursuant to any provision of this Lease, Landlord need not transfer and convey
to Tenant or its designee any better title. thereto than existed on the date of
the commencement of this Lease, and Tenant shall accept such title subject to
such liens, encumbrances, charges, exceptions and restrictions on, against or
relating to the Premises (including those arising pursuant to the terms of this
Lease) and to all applicable laws, regulations and ordinances, but free of the
Permitted Deed of Trust and all other mortgages, liens, encumbrances, charges,
exceptions and restrictions which shall have been created by or resulted from
acts or failures to act of Landlord.
(c) On the date fixed for any such purchase, Tenant shall pay to Landlord,
at any place within the United States of America designated by Landlord, the
applicable purchase price set forth on Exhibit F therefor, together will all
installments of Basic Rent and all other sums then due under this Lease and
unpaid to and including the date of purchase without offset or deduction for any
reason, and Landlord shall deliver to Tenant a special warranty deed conveying
title to the Premises of the character described in subsection 15(b) above and
subsection 15(e) below, and describing the Premises or portion thereof being
sold and conveying the title thereto, together with such instruments as shall be
necessary to transfer to Tenant or its designee any other property then required
to be transferred by Landlord pursuant to this Lease. Tenant shall pay all
charges incident to such conveyance and transfer, including counsel fees, escrow
fees, recording fees, title insurance premiums and all applicable federal, state
and local taxes (other than any income or franchise taxes levied upon or
assessed against Landlord) which may be incurred or imposed by reason of such
conveyance and transfer (collectively, the "Transfer Costs").
(d) Upon the completion of such purchase, but not prior thereto (whether
or not any delay in the completion of, or the failure to complete such purchase
shall be the fault of Landlord), this Lease and all obligations hereunder
(including the obligations to pay Basic Rent and Additional Rent) shall
terminate, except with respect to (i) obligations and liabilities of Tenant,
actual or contingent, under this Lease which arose on or prior to such date of
purchase, (ii) those obligations contained in subsection 7(c) and Section 8,
(iii) the Environmental Indemnity Agreement, and (iv) those obligations which
are to survive the expiration or termination of this Lease as expressly provided
by the terms of this Lease.
(e) The special warranty deed to be delivered pursuant to Section 15(c)
above shall contain, without limitation, the following provisions: "(a) GRANTEE
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SET FORTH IN THIS DEED, GRANTOR HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE
MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION,
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE
MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO
THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY, OR (H) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, EXCEPT WITH
RESPECT TO THE CONTINUING OBLIGATION OF GRANTOR TO REMEDIATE CERTAIN
PRE-EXISTING ENVIRONMENTAL CONDITIONS SHOULD THE NEED ARISE, AS EXPRESSLY SET
FORTH IN THE ENVIRONMENTAL INDEMNITY AGREEMENT, (b) GRANTEE FURTHER ACKNOWLEDGES
AND AGREES THAT HAVING BEEN IN OCCUPANCY OF THE PROPERTY AND HAVING BEEN GIVEN
THE OPPORTUNITY TO INSPECT THE PROPERTY, GRANTEE IS RELYING SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE
PROVIDED BY GRANTOR, (c) GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION PROVIDED BY GRANTOR WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT GRANTOR HAS NOT MADE ANY INDEPENDENT INVESTIGATION
OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY OR COMPLETENESS OF SUCH INFORMATION, (d) GRANTOR IS NOT LIABLE OR BOUND
IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY
ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON, (e) GRANTEE
FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND
BASIS, WITH ALL FAULTS, EXCEPT WITH RESPECT TO THE CONTINUING OBLIGATION OF
GRANTOR TO REMEDIATE CERTAIN PRE-EXISTING ENVIRONMENTAL CONDITIONS SHOULD THE
NEED ARISE, AS EXPRESSLY SET FORTH IN THE ENVIRONMENTAL INDEMNITY AGREEMENT, (f)
GRANTOR HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS REGARDING COMPLIANCE OF THE
PROPERTY OR ANY ACTIVITY OCCURRING PRIOR TO THE CLOSING DATE WITH APPLICABLE
ENVIRONMENTAL LAWS, THE EXISTENCE, IN OR ON THE PROPERTY, OF ANY HAZARDOUS
MATERIALS, SUBSTANCES, OR WASTES AS THOSE TERMS ARE DEFINED UNDER ENVIRONMENTAL
LAWS OR ANY OTHER SUBSTANCE THAT IS CONSIDERED HAZARDOUS OR TOXIC, OR THE
EXISTENCE IN OR ON THE PROPERTY OF ANY INDUSTRIAL OR SOLID WASTE OR ANY
FACILITY, AS THOSE TERMS ARE DEFINED UNDER APPLICABLE ENVIRONMENTAL LAWS, (g)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, EXCEPT
WITH RESPECT TO THE CONTINUING OBLIGATION OF GRANTOR TO REMEDIATE CERTAIN
PRE-EXISTING ENVIRONMENTAL CONDITIONS SHOULD THE NEED ARISE, AS EXPRESSLY SET
FORTH IN THE ENVIRONMENTAL INDEMNITY AGREEMENT, GRANTEE HEREBY WAIVES AND
RELEASES GRANTOR, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS,
RIGHTS, DAMAGES, COSTS, EXPENSES OR COMPENSATION WHATSOEVER, DIRECT OR INDIRECT,
KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, WHICH GRANTEE NOW HAS OR WHICH MAY
ARISE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY GROWING OUT OF OR CONNECTED WITH
THE PHYSICAL OR ENVIRONMENTAL CONDITION OF THE PROPERTY OR ANY IAW OR REGULATION
APPLICABLE TO IT, INCLUDING BUT NOT LIMITED TO THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION AND LIABILITY ACT, 42 U. S. C. SECTION 9601 ET SEQ. OR
SIMILAR STATE STATUTES, (h) NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT TO THE CONTRARY, EXCEPT WITH RESPECT TO THE CONTINUING OBLIGATION OF
GRANTOR TO REMEDIATE CERTAIN PRE-EXISTING ENVIRONMENTAL CONDITIONS SHOULD THE
NEED ARISE, AS EXPRESSLY SET FORTH IN THE ENVIRONMENTAL INDEMNITY AGREEMENT,
GRANTEE ASSUMES THE RISK THAT ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS MAY
NOT HAVE BEEN REVEALED BY ITS OWN INVESTIGATION AND AGREES TO INDEMNIFY AND HOLD
GRANTEE HARMLESS AGAINST, ANY CLAIMS, ACTIONS, CAUSES OF ACTIONS, DEMANDS,
RIGHTS, COSTS, EXPENSES OR COMPENSATION WHATSOEVER, DIRECT OR INDIRECT, KNOWN OR
UNKNOWN, FORESEEN OR UNFORESEEN, ARISING OUT OF THE CURRENT OR PRIOR PHYSICAL
AND ENVIRONMENTAL CONDITION OF THE PROPERTY."
16. Assignment and Subletting. Tenant may sublet all or any part of the
Premises and may assign all of its rights and interests under this Lease without
the consent of Landlord, so long as (i) each such sublease or assignment shall
expressly be made subject to the provisions of this Lease, (ii) any such
sublessee or assignee shall, upon request of Permitted Beneficiary, execute a
Non-Disturbance and Attornment Agreement with Landlord and any Permitted
Beneficiary as may be reasonably required by either of such parties, (iii)
Tenant shall remain primarily liable to Landlord under this Lease and Tenant's
liability shall not in any way be reduced, limited or released, (iv) any such
sublease or assignment has no adverse impact or effect on any tax treatment of
Landlord in connection with the Premises or any transaction, (v) any such
sublease shall not extend beyond the Term of this Lease (either the Primary Term
or, if this Lease has been extended as hereinbefore provided, any Extended
Term), and (vi) any such sublease or assignment shall not be for or affect less
that 15,000 square feet of the leased space of the Premises, or have the effect
of creating more than a total of five (5) parties then having an interest in the
Premises as a tenant, subtenant and/or assignee. If Tenant assigns all its
rights and interests under this Lease, the assignee under such assignment shall
expressly assume all the obligations of Tenant hereunder in an instrument,
approved by Landlord as to form and substance (which
approval will not be unreasonably withheld or delayed), delivered to Landlord at
the time of such assignment. No assignment or sublease made as permitted by this
Section 16 shall affect or reduce any of the obligations of Tenant hereunder,
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. No sublease
or assignment made as permitted by this Section 16 shall impose any obligations
on Landlord or otherwise affect any of the rights of Landlord under this Lease.
Neither this Lease nor the Term hereby demised shall be mortgaged, pledged or
hypothecated by Tenant, nor shall Tenant mortgage or pledge the interest of
Tenant in and to any sublease of the Premises or the rentals payable thereunder.
Any mortgage, pledge, sublease or assignment made in violation of this Section
16 shall be void. Tenant shall, within ten (10) days after the execution and
delivery of any such assignment or sublease of all or substantially all of the
Premises, deliver a conformed copy thereof to Landlord. Within ten (10) days
after the execution and delivery of any sublease of a portion of the Premises,
Tenant shall give notice to Landlord of the existence and term thereof, and of
the name and address of the sublessee thereunder. Notwithstanding anything in
this Lease to the contrary, Tenant shall not sublease any portion of the
Premises or assign this Lease if the effect of such sublease or assignment would
be to cause the Premises or any portion thereof to be considered as being
property used by a tax-exempt entity or other entity, with the result that some
or all of the federal, state or municipal income tax deductions which Landlord
otherwise would be permitted to report with respect to the Premises or with
respect to the Lease would be deferred or denied, or cause this Lease not to be
considered as a true lease for federal income tax purposes.
17. Additional Tenant Covenants and Representations. Notwithstanding any
other provisions of this Lease to the contrary, Tenant covenants and represents
to Landlord and to Permitted Beneficiary as follows:
(a) Except as may be otherwise expressly provided in Section 11 of this
Lease with respect to Permitted Alterations, Tenant shall not expend
any of Tenant's funds for any portion of the Renovations or for the
Fees and Costs, without the prior written consent of Landlord and
Permitted Beneficiary (which consent may be withheld or denied by such
parties in their sole and absolute discretion), and the total cost of
all Renovations shall be provided by Landlord in the amounts set forth
on the development budget attached hereto as Exhibit I;
(b) The Premises are currently and, after the Renovations are complete,
will be susceptible to use by parties other than Tenant;
(c) Tenant shall, at all times and for all purposes, treat this Lease as
and consider it to be an operating lease, including, without
limitation, for purposes of all federal income tax returns, and all
reports and information supplied or reported to the Internal Revenue
Service; and
(d) Tenant shall not make any Permitted Alterations, Renovations,
improvements, alterations, additions, replacements or substitutions to
or of any portion of the Premises which could (i) constitute or be
construed as taxable income to Landlord, (ii) result in some or all of
the federal, state or municipal income tax deductions which Landlord
would otherwise be permitted to report with respect to Premises or
this Lease being deferred or denied, (iii) cause Tenant to be deemed
to have acquired an interest in the fee title to the Premises, or (iv)
cause this Lease not to be considered as a true lease for federal
income tax purposes.
18. Financial Statements.
(a) Tenant shall provide (i) within sixty (60) days of the end of each
fiscal quarter of Tenant, other than the fourth fiscal quarter of each
year, unaudited quarterly balance sheets, statements of earnings, and
statements of cash flow for the quarter then ended; and (ii) within
one hundred twenty (120) days of the end of each fiscal year of
Tenant, annual audited balance sheets, statements of earnings, and
statements of cash flow for Tenant for the year then ended. Quarterly
reports on Form 10-Q as filed with the Securities and Exchange
Commission shall satisfy the requirements contained in (i) above.
Audited financial statements contained in, or incorporated by
reference in, an Annual Report on Form 10-K as filed with the
Securities and Exchange Commission shall satisfy the requirements
contained in (ii) above.
(b) Landlord and/or Permitted Beneficiary shall have the right to visit
and inspect the Premises, at all reasonable times and as often as may
be reasonably requested. Tenant shall also provide to Landlord and/or
Permitted Beneficiary any information regarding the business, affairs
or financial condition of Tenant as Landlord or Permitted Beneficiary
may reasonably request from time to time including, but not limited
to, any information requested of Landlord or Permitted Beneficiary
from (i) a governmental agency having jurisdiction over Landlord or
Permitted Beneficiary, (ii) any investment financial rating service
such as Standard & provided Poor's Corporation of Xxxxx'x Investment
Service, or (iii) United States National Association of Insurance
Commissioners or similar organizations or their successors.
(c) In no event shall Tenant be required to provide for review or copying
of any information which is (i) subject to an attorney client or
attorney work-product privilege, (ii) not customarily provided to
Standard & Poor's Corporation, Xxxxx'x Investment Service, or any
other investment/financial rating service, or (iii) prohibited from
disclosure by applicable law.
(d) Tenant shall not be required to pay or reimburse Landlord or Permitted
Beneficiary for expenses of inspection or for copies as contemplated
above unless an Event of Default has occurred.
(e) Landlord will use its best efforts to treat any information from
Tenant as confidential information, if such information is marked
"confidential" by Tenant when provided to Landlord; provided, however,
that nothing herein contained shall limit or impair the right or
obligation of Landlord to disclose such information: (i) to its
auditors, attorneys, employees or agents, (ii) when required by any
law, ordinance or governmental order, regulation, rule, policy,
investigation or any regulatory request, (iii) as may be requested or
appropriate in any report, statement or testimony submitted to any
municipal, state, provincial or Federal regulatory body having or
claiming to have jurisdiction over Landlord, or to the United States
National Association of Insurance Commissioners, the National
Association of Securities Dealers or similar organizations or their
successors, (iv) as may be requested in any report, statement or
testimony provided or submitted to any financial investment rating
service, such as Standard & Poor's Corporation or Xxxxx'x Investment
Service, (v) which is publicly available to Landlord, (vi) in
connection with any proceeding, case or matter pending (or on its face
purported to be pending) before any court, tribunal, arbitration board
or any governmental agency, commission authority, board or similar
entity, (vii) in connection with the enforcement of its rights under
or in respect of this Lease after the occurrence of an Event of
Default, or (viii) in connection with any transfer of any of
Landlord's interest in this Lease (it being understood and agreed that
any such assignee shall itself be bound by the terms and provisions
hereof).
19. Permitted Contests. Tenant shall not be required to (i) pay any
Imposition (as hereinafter defined); (ii) comply with any statute, law, rule,
order, regulation or ordinance; (iii) discharge or remove any lien, encumbrance
or charge (except with respect to the Previous Construction, Permitted
Alterations and the Renovations), or (iv) obtain any waivers or settlements or
make any changes to take any action with respect to any encroachment, hindrance,
obstruction, violation or impairment referred to in subsection 10(b), 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 during the pendency of which there is prevented (A) the
collection of, or other realization upon, the tax, assessment, levy, fee, rent
or charge or lien, encumbrance or charge so contested; (B) the sale, forfeiture
or loss of the Premises, or any part thereof, or the Basic Rent or any
Additional Rent, or any portion thereof; (C) any interference with the use or
occupancy of the Premises or any part thereof; and (D) any interference with the
payment of the Basic Rent or any Additional Rent, or any portion thereof. While
any such proceedings are pending, Landlord shall not have the right to 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 promptly prosecuted to a final conclusion.
Tenant shall pay, indemnify and save Landlord and Permitted Beneficiary harmless
against, any and all losses, judgments, decrees and costs (including all
attorneys' fees, appearance costs 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; provided,
however, that nothing herein contained shall be construed to (a) require Tenant
to pay or discharge any lien, encumbrance or other charge created by any act or
failure to act of Landlord or the payment of which by Tenant is not otherwise
required hereunder, or (b) apply in any respect to the Previous Construction or
the Renovations. No such contest shall subject Landlord or any Permitted
Beneficiary to the risk of any criminal liability. Tenant shall give such
reasonable security to Landlord or such Permitted Beneficiary as may be demanded
by Landlord or such Permitted Beneficiary to insure compliance with the
foregoing provision of this Section 19.
20. Conditional Limitations; 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 (1) fail to make any payment when due of Basic Rent,
Additional Rent or other sum herein required to be paid by Tenant
hereunder and such failure continues for five (5) business days, or
(2) fail to observe or perform any other provision hereof or any
provision of any Assignment of Lease and Rents, dated as of the date
hereof (the "Assignment"), or any Tenant Certificate from Landlord
and/or Tenant to Permitted Beneficiary, for thirty (30) days after
notice to Tenant of such failure has been given
(provided, that in the case of any default referred to in this Lease
which cannot with diligence be cured within such 30-day period, then
upon receipt by Landlord of a Tenant's Certificate stating the reason
such default cannot be cured within thirty (30) days and providing
that Tenant is proceeding with 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
diligence); or
(ii) if any representation or warranty of Tenant set forth in any
notice, certificate, demand, request or other instrument delivered
pursuant to, or in connection with, this Lease, or Assignment shall
prove to be either false or misleading in any material respect as of
the time when the same shall have been made; 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
collectively called "Bankruptcy Law") 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) generally not pay its
debts as they become due, or admit in writing its inability to pay its
debts generally as they become due or (C) make a general assignment
for the benefit of its creditors, or (D) fail to controvert in timely
and appropriate manner, or in writing acquiesce to, any petition
commencing an involuntary case against Tenant, or otherwise filed
against Tenant pursuant to any Bankruptcy Law, or (E) take any action
in furtherance of any of the foregoing; 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 sixty (60) days after
such filing, or if a proceeding or case shall be commenced in any
court of competent jurisdiction seeking (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, or (C) any
similar relief as to Tenant pursuant to any Bankruptcy Law, and any
such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect for sixty (60) days; or
(v) if the Premises shall be left both unattended and without
maintenance as provided herein, for a period of ten (10) business
days; or
(vi) if there occurs any default under any of Tenant's obligations
under (1) that certain Tax Indemnity Agreement executed by Tenant in
favor of Landlord dated as of even date with this Lease (the "Tax
Indemnity Agreement"), (2) the Environmental Indemnity Agreement, (3)
that certain Local Tax Benefits Indemnity Agreement executed by Tenant
in favor of Landlord and Principal Mutual Life Insurance Company,
dated as of even date with this Lease, (4) that certain Agreement
Regarding Liens executed by Tenant in favor of Landlord and Principal
Mutual Life Insurance Company, dated as of even date with this Lease,
and (5) that certain Tenant Certificate (with Nondisturbance,
Attornment, Notice and Estoppel Agreement) executed by Tenant,
Landlord and Principal Mutual Life Insurance Company contemporaneously
with this Lease; provided, however, that if any notice and/or grace
periods are specifically provided for any of such defaults by the
terms of any of such documents, such default shall not constitute an
Event of Default under this Lease until such default continues uncured
beyond any such notice and/or grace periods as may be specifically
provided therefor in such document, and provided further, that no
notice or grace periods provided for in this Lease shall apply to any
such defaults under any of such other documents; or
(vii) if Tenant fails to deliver to Landlord and Permitted
Beneficiary, no sooner than 150 days after completion of the Previous
Construction, any Permitted Alterations, or the Renovations and no
later than 185 days after the completion of the Previous Construction,
any Permitted Alterations and the Renovations, a Title Update,
together with copies of all documents listed therein, describing all
documents recorded in connection with the Premises since the date of
this Lease; or
(viii) any failure of Tenant to obtain the written, recordable release
of or to bond off the Premises any mechanic's, materialman or other
lien described in the Title Update pertaining to the Renovations, any
Permitted Alterations or the Previous Construction, within 30 days
after receipt of the Title Update by Tenant.
(b) If an Event of Default shall have happened and be continuing, Landlord
shall have, in its sole discretion, the following rights:
(i) To give Tenant written notice of Landlord's intention to
terminate the Term of this Lease on a date specified in such notice.
Thereupon, the Term of this Lease and the estate hereby granted shall
terminate on such date 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.
(ii) To (A) re-enter and repossess the Premises or any part thereof
by force, summary proceedings, ejections or otherwise and (B) remove
all persons and property therefrom, whether or not the Lease has been
terminated pursuant to subsection 20(b)(i) above, Tenant hereby
expressly waiving any and all notices to quit, cure or vacate provided
by current or any future law. Landlord shall have no liability by
reason of any such re-entry, repossession or removal. No such re-entry
or taking of possession of the Premises by Landlord shall be construed
as an election on Landlord's part to terminate this Lease unless a
written notice of such intention be given to Tenant pursuant to
subsection 20(b)(i) above.
(iii) To (but shall be under no obligation 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 Landlord, in its absolute discretion, may determine.
Landlord may collect and receive any rents payable by reason of such
reletting. Landlord shall not be responsible or liable for any failure
to relet the Premises or any part thereof or for any failure to
collect any rent due upon any such reletting.
(iv) To recover from Tenant, and Tenant shall pay to Landlord on
demand, as and for liquidated and agreed final damages, and not as a
penalty, for Tenant's default, and in lieu of all current damages
beyond the date of such demand, an amount determined in accordance
with Exhibit F, it being acknowledged and agreed by both Landlord and
Tenant that during the continuation of any Event of Default, an amount
determined in accordance with Exhibit F shall be fair and appropriate,
and payable as liquidated damages, and not as a penalty, and is an
amount which is discounted to present net value. If any law shall
limit the amount of such liquidated final damages to less than the
amount above agreed upon, Landlord shall be entitled to the maximum
amount allowable under such statute or rule of law.
(v) To accept Tenant's irrevocable Purchase Offer which Tenant shall
be conclusively presumed to have made upon the occurrence of an Event
of Default. The Purchase Offer shall be deemed to contain an immediate
closing date and the purchase shall be governed by the terms and
conditions set forth in subsections 15(b), 15(c), 15(d) and 15(e) of
this Lease.
(vi) To continue this Lease in effect for so long as Landlord does not
terminate Tenant's right to possession of the Premises and Landlord
may enforce all of its rights and remedies hereunder including without
limitation the right to recover all Basic Rent, Additional Rent and
other sums payable hereunder as the same become due.
(c) No termination of this Lease pursuant to subsection 20(b) (i), or by
operation of law or otherwise, and no repossession of the Premises or any part
thereof pursuant to subsection 20(b) (ii) or otherwise, and no reletting of the
Premises or any part thereof pursuant to subsection 20(b) (iii), shall relieve
Tenant of its liabilities and obligations hereunder, all of which shall survive
such expiration, termination, repossession or reletting.
(d) Notwithstanding anything in this Section 20 to the contrary, Landlord
agrees that Landlord shall pursue the remedy described above in subsection (b)
(iv) only after Landlord has pursued and been denied the remedy described above
in subsection (b) (v).
21. Additional Rights of Landlord.
(a) 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 or by statute.
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 decree compelling
performance of any of the covenants, agreement, conditions or provisions of this
Lease, or to any other remedy allowed to Landlord at law or in equity.
(b) Tenant hereby waives and surrenders for itself and all those claiming
under it, including creditors of all kinds, (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 after termination of
Tenant's right of occupancy by order or judgment of any court or by any legal
process or writ, or 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.
22. Notices, Demands and Other Instruments. All notices, demands,
requests, consents, approvals and other instruments required or permitted to be
given pursuant to the terms of this Lease shall be in writing and shall be
deemed to have been properly given if (a) with respect to Tenant, sent by
certified or registered mail, postage prepaid, or sent by telegram, overnight
express courier, facsimile followed by overnight express delivery or delivered
by hand, in each case addressed to Tenant at its address first above set forth,
and (b) with respect to Landlord, sent by certified or registered mail, postage
prepaid, or sent by telegram, overnight express courier, facsimile followed by
overnight express delivery or delivered by hand in each case, addressed to
Landlord at its address first above set forth along with a copy to the Permitted
Beneficiary delivered in the same manner. Landlord and Tenant shall each have
the right from time to time to specify as its address for purposes of this Lease
any other address in the United States of America upon fifteen (15) days'
written notice thereof, similarly given, to the other party and Permitted
Beneficiary.
23. Estoppel Certificate.
(a) Tenant shall at any time and from time to time, upon not less than
twenty (20) days' prior request by Landlord or by Permitted Beneficiary,
execute, acknowledge and deliver to Landlord or Permitted Beneficiary an
executed Tenant's Certificate on the form attached hereto as Exhibit H
(appropriately modified to reflect facts as of the date so delivered) . Any such
certificate may be relied upon by any mortgagee or prospective purchaser or
prospective mortgagee of the Premises.
(b) From time to time during the term of this Lease, Landlord expects to
secure financing of its interest in the Premises by assigning Landlord's
interest in this Lease and the sums payable hereunder. In the event of any such
assignment to a Permitted Beneficiary, Tenant will, upon not less than ten (10)
days' prior request by Landlord, execute, acknowledge and deliver to Landlord a
consent to such assignment addressed to such Permitted Beneficiary in a form
satisfactory to such Permitted Beneficiary; and Tenant will produce, at
Landlord's expense, such certificates, opinions of counsel and other documents
as may be reasonably requested by such Permitted Beneficiary.
24. 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 leaseholder estate as well as the fee estate
in the Premises or any portion thereof.
25. Surrender. Upon the termination of this Lease, Tenant shall peaceably
surrender the Premises to Landlord in the same condition in which they were
received from Landlord at the commencement of this Lease, except as altered as
permitted or required by this Lease and except for ordinary wear and tear, and
in the condition of a class A office building of similar size, use, appearance
and occupancy located in the Dallas/Fort Worth greater metropolitan area;
provided, however, that the condition of the Premises surrendered upon
termination may not be the same as received from Landlord at the commencement of
this Lease to the extent of any construction in progress at the time of the
execution of this Lease, and the Premises shall be in sound, completed
condition, in good order and broom clean upon termination and without any
construction then being in progress. So long as Tenant is not in default
hereunder, Tenant may remove from the Premises, prior to or within a reasonable
time (not to exceed thirty (30) days) after the expiration or termination of the
Term of this Lease, all property owned by Tenant, and, at Tenant's expense,
shall at such times of removal, repair any damage caused by such removal.
Property not removed within said thirty (30) day period (including, without
limitation, any trade fixtures of Tenant) shall become the property of Landlord.
Landlord may, after the expiration of such thirty (30) day period, cause such
property to be removed and the cost of removal and disposition, as well as the
cost of repairing any damage caused by such removal, shall be borne by Tenant.
Notwithstanding anything to the contrary contained herein, upon termination or
expiration of this Lease, all fixtures, excluding Tenant's trade fixtures timely
removed as hereinbefore described, but including, without limitation, the
heating, ventilation and air conditioning systems, shall remain on the Premises
at all times and shall become the property of Landlord. The provisions of this
Section 25 shall survive any termination or expiration of this Lease.
26. Separability. 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 term and provision of
this Lease shall be valid and shall be enforced to the extent permitted by law.
27. Savings Clause. No provision contained in this Lease which purports to
obligate 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.
28. Binding Effect. 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, Tenant and Permitted Beneficiary.
29. Memorandum of Lease. If requested by Landlord, Tenant or Permitted
Beneficiary, Landlord and Tenant shall enter into a memorandum of this Lease
reasonably acceptable to both parties and record the same in the appropriate
public records. Such memorandum shall be recorded and shall reflect the fact
that the provisions of this Lease shall be superior to the lien of any Permitted
Deed of Trust.
30. 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.
31. Governing Law. This Lease shall be governed by and interpreted under
the laws of the state in which the Premises are located.
32. Certain Definitions.
(a) The term "Imposition" means:
(i) all taxes, 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 said 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, (B) any Basic Rent, any Additional Rent reserved or
payable hereunder, (C) this Lease or the leasehold estate hereby
created or which arise in respect of the operation, possession,
occupancy or use of the Premises;
(ii) any gross receipts or similar taxes imposed or levied upon,
assessed against or measured by the Basic Rent, Additional Rent or any
other sums payable by Tenant hereunder or levied upon or assessed
against the Premises;
(iii) all sales and use taxes which may be levied or assessed against
or payable by Landlord or Tenant on account of the acquisition,
leasing or use of the Premises or any portion thereof; and
(iv) all charges for water, gas, light, heat, telephone, electricity,
power and other utilities and communications services rendered or used
on or about the Premises.
(b) The term "Lease" means:
this Lease and Agreement as amended and modified from time to time,
together with any memorandum or short form of lease entered into for
the purpose of recording.
(c) The term "Landlord" means:
the owner, for the time being, of the rights of the lessor under this
Lease and his heirs, successors and assigns, and upon any assignment
or transfer of such rights, except an assignment or transfer made as
security for an obligation, the assignor or transferor shall be
relieved of all future duties and obligations under this Lease and the
assignee or the transferee shall expressly agree in writing to be
bound by and to assume all the covenants of Landlord hereunder.
(d) The term "Permitted Deed of Trust" means:
that certain Deed of Trust, Security Agreement and Assignment of Rents
executed by Landlord contemporaneously with the execution of this
Lease, in favor of Principal Mutual Life Insurance Company, and any
mortgage, deed of trust, security agreement, assignment of lease or
other security instrument relating to the Premises and this Lease,
subject and junior in priority to the rights of Tenant under this
Lease, and securing the borrowing by Landlord from the Permitted
Beneficiary.
(e) The term "Permitted Beneficiary" means:
Principal Mutual Life Insurance Company, its successors and assigns
if, and only if, a Permitted Deed of Trust exists.
(f) The term "Purchase Offer" means:
a rejectable, written offer delivered by Tenant to Landlord, executed
by the president or any vice president of Tenant, irrevocably offering
to purchase the Premises pursuant to the provisions of this Lease at a
price determined in accordance with Exhibit F.
(g) The term "FAS 13" means:
Statement of Financial Accounting Standards No. 13 as promulgated by
the Financial Accounting Standards Board.
(h) The term "Lease Make-Whole Premium" means:
that amount required to be paid to Landlord by Tenant at the time of a
Lease termination as a yield maintenance protection of Landlord's equity
investment in the Premises. The Lease Make-Whole Premium shall be
calculated as follows:
i) Determine the "Reinvestment Yield." The Reinvestment Yield will
be determined in the following manner: (A) Landlord will select a U.
S. Treasury Bond, Note or Xxxx which Landlord deems to be appropriate
and which matures or is repayable as close as possible to October 15,
2010, (B) the yield for the Treasury Bond, Note or Xxxx selected as
described in (A) above will be as published two weeks prior to the
date of the termination of this Lease, (C) the yield determined in (B)
above is to be converted to an equivalent monthly nominal yield, (D)
the monthly nominal yield determined in (C) above shall be adjusted to
an after tax yield by multiplying said yield by 1 minus .34. If there
has been a tax rate change due to Federal Tax Law Changes as defined
on Exhibit C, the yield will be multiplied by 1 minus the new rate due
to Federal Tax Law Changes. The yield resulting in (D) is the
Reinvestment Yield.
ii) Calculate the "Present Value of the Leased Premises." The
Present Value of the Leased Premises is the present value of the
original after-tax cash flows anticipated by Landlord from this Lease
and the Premises, assuming a sale of the Premises on October 15, 2010,
only modified by Rent Adjustments as provided for in Section 5,
discounted at the Reinvestment Yield.
iii) Determine the applicable equity investment balance as it is
shown or would be shown on Landlord's financial statements if
accounted for under GAAP, utilizing the original assumptions used by
Landlord for the purchase of the Premises and modified only by Rent
Adjustments as provided for in Section 5. Then, subtract the amount of
the equity investment balance from the Present Value of the Leased
Premises as of the date of Lease termination. Any resulting positive
differential shall be divided by 1 minus .34. If there has been a tax
rate change due to Federal Tax Law Changes as defined on Exhibit C
the positive differential will be divided by 1 minus the new rate due
to the Federal Tax Law Changes. Any positive quotient that results
shall be the Lease Make-Whole Premium.
(i) The term "Loan Make-Whole Premium" means:
the make whole premium set forth in those two certain Deed of Trust Notes
executed by Landlord contemporaneously with the execution of this Lease,
payable to Principal Mutual Life Insurance Company, and any prepayment
premium or make whole premium or amount which Landlord is obligated to pay
any other Permitted Mortgagee pursuant to the terms of loan documents
executed by Landlord in favor of Permitted Mortgagee, including, without
limitation, any Permitted Deed of Trust or note secured thereby, to the
extent that the method of calculation of such amount shall have been
disclosed in writing to Tenant prior to or concurrently with the execution
of this Lease.
(j) The term "Hazardous Material" means:
any hazardous or toxic material, substance or waste which is defined by
those or similar terms or is regulated as such under any Environmental
Laws.
(k) The term "Environmental Laws" means:
any statute, law, ordinance, rule or regulation of any local, county, state
or federal authority having jurisdiction over the Property or any portion
thereof or its use, including but not limited to: the Federal Water
Pollution Control Act (33 U. S. C.(S)1317 et seq.) as amended; (b) the
Federal Resource Conservation and Recovery Act (42 U. S. C.(S)6901 et seq.)
as amended; (c) the Comprehensive Environmental Response Compensation and
Liability Act (42 U. S. C.(S)9601 et seq.) as amended; (d) the Toxic
Substance Control Act (15 U. S. C.(S)2601 et seq.), as amended; and (e) the
Clean Air Act (42, U. S.(S)7401 et seq.), as amended.
(l) The term "Fees and Costs" means: project consultant fees, architect fees
and engineering fees.
(m) The term "Permitted Alterations" means:
(i) whether or not constituting any portion of the Renovations, any
severable additions to or alterations, substitutions or replacements of the
Improvements on the Premises, provided that (a) such additions,
alterations, substitutions or replacements are readily removable without
causing material damage to the Premises; (b) such additions, alterations,
substitutions or replacements are not required in order to render the
Premises complete for its intended use by Tenant; and (c) such additions,
alterations, substitutions or replacements are not subject to a contract or
option for
purchase or sale between Landlord and Tenant at other than fair market
value at the time of such purchase or sale; or
(ii) whether or not constituting any portion of the Renovations, any
non-severable additions to or alterations, substitutions or
replacements of the Improvements on the Premises, provided that (a)
such additions, alterations, substitutions or replacements are not
needed to complete the Premises for its intended use by Tenant; (b)
Tenant is not entitled to any compensation for such additions,
alterations, substitutions or replacements; (c) such additions,
alterations, substitutions or replacements do not cause the Premises
to become limited use property; and (d) such additions, alterations,
substitutions or replacements are required by governmental health,
safety, or environmental standards; or
(iii) whether or not constituting any portion of the Renovations, any
non-severable additions to or alterations, substitutions or
replacements of the Improvements on the Premises, provided that (a)
such additions, alterations, substitutions or replacements are not
needed to complete the Premises for its intended use by Tenant; (b)
Tenant is not entitled to any compensation for such additions,
alterations, substitutions or replacements; (c) such additions,
alterations, substitutions or replacements do not cause the Premises
to become limited use property; and (d) the cost of such additions,
alterations, substitutions or replacements, when added to all previous
Permitted Alterations by Tenant pursuant to this clause (iii), does
not exceed $3,000,000.
33. Exhibits and Attachments. The following are Exhibits X, X, X, X, X, X,
X, X, X, X, X and L and Attachments 1, 2 and 3 referred to in this Lease, which
are hereby incorporated by reference herein and made a part thereof.
(a) Exhibit A to Lease: Legal Description
(b) Exhibit A-1 to Lease: Personal Property
(c) Exhibit B to Lease: Basic Rent Payments
(d) Exhibit C to Lease: Assumptions
(e) Exhibit D to Lease: Termination Values
(f) Exhibit E to Lease: Self Insurance Certificate
(g) Exhibit F to Lease: Computation of Purchase Prices
(h) Exhibit G to Lease: [Reserved]
(i) Exhibit H to Lease: Tenant's Certificate
(j) Exhibit I to Lease: Development Budget
(k) Exhibit J to Lease: Environmental Remediation
(l) Exhibit K to Lease: Renovations
(m) Exhibit L to Lease: Environmental Indemnity Agreement
(n) Attachment 1 to Lease: Amortization Schedule
(o) Attachment 2 to Lease: Depreciation Components
(p) Attachment 3 to Lease: Calculation of Fair Market Values
34. Time for Performance of Obligations. Whenever a date required for the
performance of any obligations under this Lease, including, without limitation,
the payment of any amounts due under this Lease, is a Saturday, Sunday or
nationally recognized business holiday, the date for the performance of such
obligation shall be deemed to be the first business day immediately following
the date originally scheduled for such performance, a "business day" being a day
on which national banks are open for business as usual.
35. Nature of Landlord's Obligations. Anything in this Lease to the
contrary notwithstanding, no recourse or relief shall be had under any rule of
law or equity, statute, constitution, or by any enforcement of any assessments
or penalties, or otherwise, or based on or in respect of this Lease (whether by
breach of any obligation, monetary or nonmonetary), against Landlord (or any
officer or partner of Landlord or any predecessor or successor corporation, or
other entity, of Landlord), it being expressly understood and agreed that any
obligations of Landlord under or relating to this Lease are solely obligations
payable out of the Premises and are compensable solely therefrom. It is
expressly understood that all such liability has been and is being expressly
waived and released as a consideration for and as a condition of the execution
of this Lease, and Tenant expressly waives and releases all such liability as a
condition of, and as a consideration for, the execution of this Lease.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year first above set forth.
LANDLORD: Allen Office Investment Limited
Partnership, a Texas limited partnership
By: Principal Mutual Life Insurance
Company, an Iowa corporation,
its sole general partner
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxx
-----------------------------
Title: Counsel
-----------------------------
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
-----------------------------
Title: Counsel
-----------------------------
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TENANT: TRW Inc., an Ohio corporation
By: /s/ X.X. Xxxxxxxxx
----------------------------------------
Name: X.X. Xxxxxxxxx
--------------------------------------
Title: Vice President and Assistant
-------------------------------------
Secretary
-----------------------------------
46
EXHIBIT A
LEGAL DESCRIPTION
BEING all that tract of land in the City of Xxxxx, Xxxxxx County, Texas, a part
of the XXXXXXX SEE SURVEY, A-543, a part of the X.X. XXXXXX SURVEY, A-708, a
part of the XXXXX XXXXXX SURVEY, A-875, and being all of Lot 1 and all of Xxx 0,
Xxxxx 0 of the Replat of Enterprises Addition No. 1, an addition to the City of
Xxxxx as recorded in Cabinet C, Page 567, Collin County Plat records, and being
further described as follows:
BEGINNING at a 5/8 inch iron rod found at the northeast corner of said Lot 1,
said point being the intersection of the south line of Intecom Drive (a 50 foot
wide right-of-way) with the west line of Enterprise Boulevard (a 60 foot wide
right-of-way);
THENCE along the west line of Enterprise Boulevard as follows:
South 11 degrees 30 minutes 00 seconds West, at 1136.98 feet passing a
5/8 inch iron rod found at the southeast corner of said Lot 1 and the northeast
corner of said Lot 2, in all a total distance of 1439.21 feet to a 5/8 inch iron
rod found for corner;
Southwesterly, 272.73 feet along a curve to the right which has a central
angle of 60 degrees 06 minutes 02 seconds, a radius of 260.00 feet, a tangent of
150.42 feet, and whose chord bears South 41 degrees 33 minutes 01 seconds West,
260.40 feet to a 5/8 inch iron rod found for corner;
South 71 degrees 36 minutes 02 seconds West, 664.10 feet to a 5/8 inch
iron rod found at the southwest corner of said Lot 2, said point being in the
east line of U.S. Highway No. 75 (a variable width right-of-way);
THENCE along the east line of U.S. Xxxxxxx Xx. 00 as follows:
North 14 degrees 03 minutes 05 seconds East, 120.00 feet to a 5/8 inch
iron rod found for corner;
North 14 degrees 03 minutes 00 seconds East, at 720.30 feet passing a 5/8
inch iron rod found at the northwest corner of said Lot 2 and the southwest
corner of said Lot 1, in all a total distance of 1801.00 feet to a 5/8 inch iron
rod found for corner;
North 19 degrees 41 minutes 40 seconds East, 19.08 feet to a 5/8 inch
iron rod found at the northwest corner of said Lot 1, said point being in the
south line of said Intecom Drive;
THENCE South 83 degrees 49 minutes 54 seconds East, 620.60 feet along the north
line of said Lot 1 and the south line of said Intecom Drive to the POINT OF
BEGINNING and containing 1,155,576 square feet or 26.528 acres of land.
ASSIGNMENT OF TENANT'S INTEREST IN LEASE
THE STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF COLLIN )
THIS ASSIGNMENT OF TENANT'S INTEREST IN LEASE (this "Assignment") is
entered into by and between TRW Inc., an Ohio corporation (hereinafter referred
to as "Assignor"), and Experian Information Solutions, Inc., an Ohio corporation
(hereinafter referred to as "Assignee").
W I T N E S S E T H
WHEREAS, Assignor has heretofore entered into that certain lease
agreement dated April 15, 1993, by and between Allen Office Investment Limited
Partnership, a Texas limited partnership, as landlord ("Landlord"), and
Assignor, as Tenant, pertaining to certain property and improvements in the City
of Xxxxx, Xxxxxx County, Texas, which lease agreement is attached hereto as
Exhibit A and made a part hereof for all purposes (which lease was amended by
instrument dated March 10, 1995 attached hereto as Exhibit B (such lease, as
amended being hereinafter referred to as the "Lease"), and Assignor is the
present owner of all right, title and interest of the tenant under the Lease;
and
WHEREAS, pursuant to the Lease, Assignor and Landlord also executed (i)
that certain Tax Indemnity Agreement dated as of April 15, 1993, a copy of which
is attached hereto as Exhibit C, and (ii) that certain Environmental Indemnity
Agreement, also executed by Principal Mutual Life Insurance Company, an Iowa
corporation, a copy of which is attached as Exhibit L to the Lease (these two
instruments being collectively referred to as the "Collateral Agreements").
WHEREAS, Assignor desires to convey all of its right, title and interest
in and to the Lease and the Collateral Agreements to Assignee;
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by Assignor, Assignor does hereby GRANT,
BARGAIN, SELL, CONVEY, ASSIGN, TRANSFER, SET OVER and DELIVER unto Assignee, its
successors, legal representatives and assigns, all of Assignor's right, title
and interest in and to the lease and all security deposits and other deposits
therefor.
TO HAVE AND TO HOLD the above rights, title, interests, powers, estates
and privileges unto Assignee, its successors, legal representatives and assigns,
forever, and Assignor does hereby bind itself and its successors, legal
representatives and assigns, to WARRANT and FOREVER DEFEND, all and singular,
title to the interests herein assigned unto Assignee, its successors, legal
representatives and assigns, against
1
every person whomsoever lawfully claiming or to claim the same, or any thereof,
by, through or under Assignor, but not otherwise.
Assignor also assigns all of its right, title and interest in and
obligations under, the Collateral Agreements to Assignee.
It is understood and agreed that, by its execution hereof, Assignee
hereby assumes and agrees to perform all of the terms, covenants and conditions
of (i) the Lease on the part of the tenant therein required to be performed
arising from and after the effective date hereof, and (ii) the Collateral
Agreements; and Assignee covenants and agrees to indemnify, save and hold
harmless Assignor from and against any liability, claims or causes of action
existing in favor of or asserted by any party to the Lease or the Collateral
Agreements or by any third party, arising out of or relating to Assignee
"failure to perform any of the obligations of the tenant under the Lease, or the
obligations under the Collateral Agreements, subsequent to the effective date
hereof.
Assignor consents and agrees to indemnify, save and hold harmless
Assignee from and against any and all liability, claims or causes of action
existing in favor of or asserted by any party to the Lease or the Collateral
Agreements or by any third party, arising out of or relating to Assignor's
failure to perform any of the obligations of tenant under the Lease or under the
Collateral Agreements prior to the effective date hereof.
All of the covenants, terms and conditions set forth herein shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, legal representatives and assigns.
The parties hereto agree to take such further action and execute such
further documentation to evidence this assignment and assumption as Landlord may
reasonably require pursuant to the provisions of Section 16 of the Lease wherein
Landlord reserves the right to approve the instrument of assignment as to form
and substance when the Tenant assigns all of its rights and interests under the
Lease.
The parties hereto further acknowledge, as required by Section 16 of the
Lease, that: (i) this Assignment does not affect or reduce any of the
obligations of Assignor, as Tenant under the Lease, to Landlord, 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 had been made; provided that performance by Assignee of any
of the obligations of Tenant under the Lease shall be deemed to be performance
by Assignor; (ii) this Assignment does not impose any obligations on Landlord or
otherwise affect any of the rights of Landlord under the Lease; (iii) Assignee
is not a tax-exempt entity and shall be engaged in the same business activities
in the demised premises under the Lease as are presently being engaged in by
Assignor as of the Effective Date; and (iv) this Assignment does not affect or
reduce any of the obligations of Assignor to the other parties to the Collateral
Agreements.
Without limiting the foregoing, the Assignee and Assignor agree to
execute such Estoppel Certificate, or Certificates as required by Section 23 of
the Lease and requested by Landlord. Assignee also hereby notifies Landlord that
the address for
2
notice to Assignee shall be as set forth below on the signature page, attention
Law Department.
EXECUTED the ____ day of _________________, 1996, to be effective as of
the ____ day of ______________, 1996.
ASSIGNOR:
TRW, INC.
By: /s/ Xxxxx X Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------------
Title: Assistant Secretary
---------------------------------
ADDRESS FOR NOTICES: ASSIGNEE:
000 Xxxx Xxxxxxx Xxxx, Xxxxx Floor EXPERIAN INFORMATION SOLUTIONS, INC.
Xxxxxx, XX 00000
Telephone: (000) 000-0000 By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
FAX: (000) 000-0000 Name: Xxxxxx X. Xxxxxxxxx
----------------------------------
Attention: Law Department Title: Executive Vice-President,
---------------------------------
General Counsel & Secretary
------------------------------
LANDLORD: APPROVED:
ALLEN OFFICE INVESTMENT PRINCIPAL MUTUAL LIFE INSURANCE
LIMITED PARTNERSHIP, COMPANY, an Iowa corporation
a Texas limited partnership
By: PRINCIPAL MUTUAL LIFE By: /s/ X.X. Xxxxxx
-----------------------------
INSURANCE COMPANY, an Iowa Name: X.X. Xxxxxx
---------------------------
corporation, its sole General Title: Assistant Director
--------------------------
By: /s/ X.X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
---------------------------- -----------------------------
Name: X.X. Xxxxxx Name: Xxxxx X. Xxxxxxxx
--------------------------- ---------------------------
Title: Assistant Director Title: Counsel
-------------------------- -----------------------
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------
Title: Counsel
--------------------------
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