1
EXHIBIT 10.68
OFFICE BUILDING LEASE AGREEMENT
Team Tech International, Inc.
AND
BC XXXXX XX/XXX XXX.
XX
XXXXXX XXXXX XXXXX
0
BASIC LEASE INFORMATION
"LEASE DATE": MARCH 9, 2000
"TENANT": TEAM TECH INTERNATIONAL, INC.
ADDRESS OF TENANT:
000 XXXXXXXX XXX, XXXXX 000, XXXXXX, XX 00000
CONTACT: ART XXXXXXX TELEPHONE: (000) 000-0000
"LANDLORD": BC Plaza II/III, Ltd.
ADDRESS OF LANDLORD: c/o Xxxxxxxx Xxxx Company
000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000
CONTACT: Xxxxx Xxxxxxx Telephone: (000) 000-0000
"PREMISES": Suite No. 300, which is located in the office building, sometimes referred to as Xxxxxx Creek
Plaza II (the "Building") to be (or which has been) constructed on the land (the "Land")
described in Exhibit A attached hereto, which Premises are outlined in the plan attached hereto
as Exhibit B.
"PROPERTY": Collectively, the Land and Building, together with all landscaping, driveways, parking areas,
parking garages, and all other buildings and improvements which are now or hereafter located on
the Land.
"LEASE TERM": The period commencing on the Commencement Date (as defined in the Lease) and, subject to and
upon the terms and conditions set forth in the Lease, or in any exhibit or addendum thereto,
continuing for 60 calendar months thereafter; provided, however, if the term of the Lease is
deemed to have commenced on a date other than the first day of a calendar month, the expiration
date of the primary term shall be extended so as to give effect to the full term specified
above in addition to the remainder of the calendar month during which the Lease is deemed to
have commenced.
"ESTIMATED COMMENCEMENT DATE": JUNE 1, 2000
"NET RENTABLE AREA OF THE PREMISES": 23,163 square feet.
"BASIC RENTAL":
05/01/00 - 04/30/01 $ 17.50 per square foot NRA Per Annum $ 33,779.38 per month
05/01/01 - 04/30/02 $ 17.50 per square foot NRA Per Annum $ 33,779.38 per month
05/01/02 - 04/30/03 $ 17.50 per square foot NRA Per Annum $ 33,779.38 per month
05/01/03 - 04/30/04 $ 18.00 per square foot NRA Per Annum $ 34,744.50 per month
05/01/04 - 04/30/05 $ 18.50 per square foot NRA Per Annum $ 35,709.63 per month
"ESTIMATED OPERATING EXPENSES":
05/01/00 - 04/30/01 $ 8.50 per square foot NRA Per Annum $16,407.13 per month
05/01/01 - 04/30/02 $ 8.50 per square foot NRA Per Annum $16,407.13 per month
05/01/02 - 04/30/03 $ 8.50 per square foot NRA Per Annum $16,407.13 per month
05/01/03 - 04/30/04 $ 8.50 per square foot NRA Per Annum $16,407.13per month
05/01/04 - 04/30/05 $ 8.50 per square foot NRA Per Annum $16,407.13 per month
"ADJUSTED RENTAL":
05/01/00 - 04/30/01 $ 26.00 per square foot NRA Per Annum $ 50,186.50 per month
05/01/01 - 04/30/02 $ 26.00 per square foot NRA Per Annum $ 50,186.50 per month
05/01/02 - 04/30/03 $ 26.00 per square foot NRA Per Annum $ 50,186.50 per month
05/01/03 - 04/30/04 $ 26.50 per square foot NRA Per Annum $ 51,151.63 per month
05/01/04 - 04/30/05 $ 27.00 per square foot NRA Per Annum $ 52,116.75 per month
"SECURITY DEPOSIT": $52,166.75
"PERMITTED USE": Tenant shall occupy the Premises for general office purposes, web page development sales and
services, internet related sales and services, and all ancillary activities related thereto and for no
other use or purpose without the prior written consent of Landlord. Under no circumstances shall
there be retail sales delivered or picked up on site, and Tenant's use must comply with all zoning
requirements for the building.
This Basic Lease Information is hereby incorporated into and made a part of the lease attached hereto (the "Lease").
Each reference in the Lease to any of the information or definitions set forth in this Basic Lease Information shall mean and refer
to the information and definitions hereinabove set forth and shall be used in conjunction with the provisions of the Lease. In the
event of any direct conflict between this Basic Lease Information and the Lease, this Basic Lease Information shall control;
provided, however, that those provisions of the Lease (including its Exhibits) which expressly require an adjustment to any of the
matters set forth in this Basic Lease Information shall supersede the provisions of this Basic Lease Information.
LANDLORD: TENANT:
BC PLAZA II/III, LTD. Team Tech International, Inc.
a Texas limited partnership
By: Xxxxxxxx Xxxx Central Texas
Development, Inc., a Delaware corporation
Its General Partner
/s/ Xxxx Xxxxx /s/ Art Xxxxxxx
-------------------------------------------- ---------------------------------------------
By: Xxxx Xxxxx By: Art Xxxxxxx
-------------------------------------- ---------------------------------------
Title: CEO/President Title: President
-------------------------------------- ---------------------------------------
3
TABLE OF CONTENTS
1. Definitions and Basic Provisions............................. 1
2. Lease Grant.................................................. 1
3. Rent ........................................................ 1
4. Landlord's Obligations ...................................... 2
5. Leasehold Improvements ...................................... 2
6. Use.......................................................... 2
7. Tenant's Repairs and Alterations ............................ 3
8. Assignment and Subletting.................................... 3
9. Indemnity.................................................... 3
10. Subordination................................................ 3
11. Rules and Regulations........................................ 4
12. Inspection................................................... 4
13. Condemnation................................................. 4
14. Fire or Other Casualty....................................... 4
15. Holding Over................................................. 4
16. Taxes on Tenant's Property................................... 4
17. Events of Default............................................ 4
18. Remedies..................................................... 5
19. Surrender of Premises........................................ 5
20. Attorney's Fees.............................................. 5
21. Mechanics' Liens............................................. 5
22. No Subrogation-Liability Insurance........................... 6
23. Brokerage.................................................... 6
24. Change of Building Name...................................... 6
25. Estoppel Certificates........................................ 6
26. Notices...................................................... 6
27. Separability................................................. 6
28. Amendments: Binding Effect................................... 6
29. Quiet Enjoyment.............................................. 6
30. Gender....................................................... 6
31. Joint and Several Liability.................................. 6
32. Personal Liability........................................... 7
33. Certain Rights Reserved by Landlord.......................... 7
34. Notice to Lender............................................. 7
35. Captions..................................................... 7
36. Miscellaneous................................................ 7
37. Landlord's Financing......................................... 7
38. Lender's Approval............................................ 7
39. Prevailing Rental Rate....................................... 8
40. Force Majeure................................................ 8
41. Applicable Law............................................... 8
42. Third Party Rights........................................... 8
43. Exhibits and Attachments .................................... 8
44. Hazardous Materials ......................................... 8
45. Landlord's Lien.............................................. 9
Exhibit A Legal Description of the Land
Exhibit B Outline of Premises
Exhibit C Rules and Regulations
Exhibit D Building Standard Improvements
Exhibit E Parking
Exhibit F Operating Expenses
Exhibit H Acknowledgment of Lease Commencement and Lien Rights
Exhibit I Special Provisions
4
OFFICE BUILDING LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into as of the Lease Date set forth in the Basic
Lease Information by and between BC Plaza II/III, Ltd. (hereinafter called
"Landlord") and Team Tech International, Inc. (hereinafter called "Tenant").
WITNESSETH:
1. DEFINITIONS AND BASIC PROVISIONS. The definitions, information and
basic provisions set forth in the Basic Lease Information (the "Basic Lease
Information") executed by Landlord and Tenant contemporaneously herewith are
incorporated herein by reference for all purposes and shall be used in
conjunction with the provisions of this Lease. As used herein, the term "Net
Rentable Area" or "NRA" shall mean and refer to the Gross Floor Area
(hereinafter defined) minus the Unrentable Floor Area (hereinafter defined) plus
additional areas as provided herein. The term "Gross Floor Area" shall mean and
refer to all floor area on a given floor under the roof of the Building and
measured to the "Exterior Building Wall" (which shall mean the outside surface
of the outer glass or midpoint of the wall in the absence of glass of the
exterior wall of the Building). The "Unrentable Floor Area" shall mean and refer
to the vertical penetrations of the Building measured from within the
penetration to the midpoint of the outermost wall enclosing the penetration and
includes the elevator shafts, Building stairs and vertical flues and ducts. In
the case of a single tenancy floor, the NRA shall include (i) the "Allowable
Area," which as used herein shall mean all floor area enclosed by the Exterior
Building Wall of the Premises on such floor and measured to the midpoint of
walls separating areas devoted to Building mechanical rooms, Building electrical
rooms, and Building janitor closets located on such floor, and (ii) an
allocation of the square footage of the ground floor lobby, arcades, service
corridors, telephone, mail and engineer rooms, and other Building service and
common areas. In the case of a multiple tenancy floor, the NRA shall include (i)
the "Allowable Area," which as used herein shall mean all floor area enclosed by
the Exterior Building Wall of the Premises on such floor and measured to the
midpoint of the walls separating areas leased by or held for lease to other
tenants or from areas devoted to corridors, elevator lobbies, restrooms,
mechanical rooms, janitor closets, vending areas and other similar facilities
which are intended for the use of all tenants on the particular floor, (ii) an
allocation of the Building service and common areas located on such floor, and
(iii) an allocation of the square footage of the ground floor lobby, arcades,
service corridors, telephone, mail and engineer rooms and other Building service
and common areas. No deductions from NRA are made for columns or projections
necessary to the Building. The Net Rentable Area of the Premises has been
calculated on the basis of the foregoing definitions in general, and is hereby
stipulated for all purposes hereof to be as set forth in the Basic Lease
Information, whether the same should be more or less as a result of minor
variations resulting from actual construction and completion of the Premises or
the Building. The term "Net Rentable Area of the Building" shall mean the
aggregate total of all Net Rentable Area in the Building.
2. LEASE GRANT. Landlord, in consideration of the rent to be paid and the
other covenants and agreements to be performed by Tenants and upon the terms
hereinafter stated, does hereby lease, demise and let unto Tenant the Premises
commencing on the first to occur of (i) the date upon which Tenant occupies the
Premises, or (ii) the date upon which the Premises are substantially complete
and ready for occupancy (the "Commencement Date") and ending on the last day of
the Lease Term unless sooner terminated as herein provided. If the Premises are
not available and ready for occupancy, for any reason whatsoever, prior to the
Estimated Commencement Date, Landlord shall not be deemed to be in default
hereunder, and Landlord shall not be liable or responsible for any claims,
damages or liabilities in connection therewith or by reason thereof, and Tenant
agrees to accept possession of the Premises at such time as Landlord is able to
tender the same and this Lease shall continue for the lease Term specified in
the Basic Lease Information. By occupying the Premises, Tenant shall be deemed
to have accepted the same as suitable for the purpose herein intended and to
have acknowledged that the same comply fully with Landlord's obligations,
notwithstanding that certain "punch list" type items may not have been
completed. Within fifteen (15) days after Tenant's receipt of a request from
Landlord, Tenant agrees to give Landlord a letter confirming the Commencement
Date and certifying that Tenant has accepted delivery of the Premises and that
the condition of the Premises complies with Landlord's obligations hereunder. A
blank copy of such acknowledgment is attached as EXHIBIT H.
3. RENT. In consideration of this Lease, Tenant promises and agrees to pay
Landlord the Adjusted Rental, which is the sum of the monthly Basic Rental and
monthly Estimated Operating Expenses (subject to adjustment as hereinafter
provided) without deduction or setoff, for each month of the entire Lease Term.
One such monthly installment, together with the Security Deposit, shall be
payable by Tenant to Landlord contemporaneously with the execution of this
Lease, and a like monthly installment shall be due and payable without demand
beginning on the first day of the calendar month following the expiration of the
first full calendar month of the Lease Term and continuing thereafter on or
before the first day of each succeeding calendar month during the Lease Terms
hereof. Rent for any fractional month at the beginning of the Lease Term shall
be prorated based on one-three hundred sixty-fifth (1/365) of the current annual
Adjusted Rental for each day of the partial month this Lease is in effect, and
shall be due and payable on or before that date on which Tenant certifies that
it has accepted the Premises pursuant to Paragraph 2 hereof. In the event any
installment of the Adjusted Rental, or any portion thereof, is not received by
the due date thereof, then (without in any way implying Landlord's consent to
such late payment) Tenant, to the extent permitted by law, agrees to pay, in
addition to said installment of the Adjusted Rental, a late payment charge equal
to three percent (3) %of the installment of the Adjusted Rental, or portion
thereof, which is overdue, it being understood that said late payment charge
shall be for the purpose of reimbursing Landlord for the additional costs and
expenses which Landlord presently expects to incur in connection with the
handling and processing of late installment payments of the Adjusted Rental
which become owing by Tenant to Landlord hereunder. In addition, if Tenant fails
to pay installment of Adjusted Rental, or any portion thereof, within thirty
(30) days after the due date thereof, or fails to pay any other sum (other than
Adjusted Rental) which at any time becomes due to Landlord under any provision
of this Lease as and when the same becomes due hereunder, then, in either such
event, Tenant shall pay Landlord interest on such overdue amounts from the due
date thereof until paid at an annual rate (the "Past Due Rate") which equals the
lesser of (i) fourteen percent (14%) or (ii) the highest rate then permitted by
law. The Estimated Operating Expenses for calender year 2000 shall not exceed
$8.50 per square foot of Net Retable Area per annum (prorated).
3A. SECURITY DEPOSIT. The Security Deposit shall be payable by Tenant to
Landlord contemporaneously with the execution of this Lease. The Security
Deposit shall be held by Landlord without liability for interest and as security
for the performance by Tenant of Tenant's covenants and obligations under this
Lease, it being expressly understood that such deposit shall not be considered
an advance payment of rental or a measure of Landlord's damages in case of
default by Tenant; Landlord may, from time to time, without prejudice to any
other remedy, use such deposit to the extent necessary to make good any
arrearages of Rent or other amounts due hereunder and any other damage, injury,
expense or liability caused to Landlord by such event of default. Following any
such application of the Security Deposit, Tenant shall pay to Landlord on demand
the amount so applied in order to restore the Security Deposit to its original
amount. If Tenant is not then in default hereunder, any remaining balance of
such deposit shall be returned by Landlord to Tenant within thirty (30) days
after the expiration of this Lease. If Landlord transfers its interest in the
Premises during the Lease Term, Landlord will assign the Security Deposit to the
transferee and, thereafter, shall have no further liability for the return of
such Security Deposit.
1
5
In addition to the cash Security Deposit described above, Tenant shall deposit
with Landlord contemporaneously with the execution of this Lease, irrevocable
stand-by letter(s) of credit in the amount of $400,000(whether one or more, the
"LETTER OF CREDIT"), which shall be held and/or applied by Landlord in
accordance with this Section; however, the Letter of Credit is not an advance
rental deposit or a measure of Landlord's damages for an event of default
(defined below). The Letter of Credit shall be issued by a bank acceptable to
Landlord and shall otherwise be in such form and contain such terms as are
acceptable to Landlord, and shall be coterminous with the Term hereof. If the
Letter of Credit is to be a series of Letters of Credit, for a one year term
each, then each such Letter of Credit will contain a provision whereby Landlord
may draw on the Letter of Credit if it is not replaced or renewed prior to its
expiration date. Upon an event of default which remains uncured after all
applicable grace, notice and cure periods, Landlord may, in addition to all
other rights and remedies afforded Landlord hereunder or by law, cash the Letter
of Credit (as the same may have been reduced in accordance with the terms
hereof) and use and hold the same as a cash security deposit, which shall
include the right to use any portion thereof to satisfy Tenant's unperformed
obligations hereunder, without prejudice to any of Landlord's other remedies. If
so used, Tenant shall pay Landlord an amount that will restore the Letter of
Credit to its original amount upon request. Subject to the last sentence of this
paragraph, the Letter of Credit (as the same may have been reduced in accordance
with the terms hereof) will be returned to Tenant within 30 days after the end
of the Term, provided that Tenant has fully and timely performed its obligations
hereunder throughout the Term. If Landlord sells its interest in the Building,
the Letter of Credit shall be transferred to such purchaser, and Tenant hereby
agrees to cooperate in effectuating any such transfer. Notwithstanding the
foregoing, so long as no event of default exists and so long as Tenant provides
Landlord with evidence reasonably satisfactory to Landlord that the financial
condition of Tenant at the end of the applicable full lease year is equal to or
better than the financial condition of Tenant as of the execution of this Lease,
the amount of the Letter of Credit shall be reduced by one-third (1/3) following
the third (3rd) full lease year, another one-third (1/3) following the fourth
(4th)full lease year , and the remaining one-third (1/3) following the fifth
(5th) full lease year, so that thereafter Tenant shall have no further
obligation hereunder to supply Landlord with a letter of credit.
4. Landlord's Obligations.
(a) Subject to the limitations hereinafter set forth, Landlord agrees to
furnish Tenant while occupying the Premises and while Tenant is not in default
under this Lease facilities to provide (i) water (hot, cold and refrigerated) at
those points of supply provided for general use of tenants in the Building; (ii)
heated and refrigerated air conditioning in season, during Customary Business
Hours (as hereinafter defined), and at such temperatures and in such amounts as
are reasonably considered by Landlord to be standard, such service at hours
other than Customary Business Hours to be furnished only after Landlord's
receipt of request from Tenant, who shall bear the entire cost thereof; (iii)
janitorial service to the Premises as are reasonably considered by the Landlord
to be standard on weekdays other than Holidays (as hereinafter defined) and such
window-washing as may from time to time in Landlord's judgment be reasonably
required; (iv) operatorless passenger elevators for ingress and egress to the
floor on which the Premises are located, in common with other tenants, provided
that Landlord may reasonably limit the number of elevators to be in operation at
times other than during Customary Business Hours for the Building; (v)
replacement of Building Standard light bulbs and fluorescent tubes; and (vi)
security, deemed appropriate by Landlord to the Building during the weekends and
after normal working hours during the week; provided that Landlord shall not be
liable to Tenant for any reason for losses due to theft or burglary, or for
damages done by unauthorized persons on the Premises. In addition, Landlord
agrees to maintain the public and common areas of the Building, such as lobbies,
stairs, corridors, and restrooms, in reasonably good order and condition, except
for damage occasioned by Tenant, or its employees, agents, or invitees. If
Tenant shall desire any of the services specified in this Paragraph 4 at any
time or in an amount other than times or amounts herein designated, such excess
service or services shall be supplied to Tenant, subject to availability, only
if a request from Tenant has been received by Landlord before 3:00 p.m. on the
business day preceding such extra usage, and Tenant shall pay to Landlord as
additional rent the cost of such excess service or services (plus an additional
charge of fifteen percent [15%] of such cost [excluding utility costs] to cover
overhead) within fifteen (15) days after Tenant's receipt of a xxxx therefor.
The term "Customary Business Hours" means 7:00 a.m. to 7:00 p.m., Monday through
Friday, and Saturday 8:00 a.m. to 1:00 p.m., except Holidays. The term
"Holidays" means New Year's Day, Memorial Day, the Fourth of July, Labor Day,
Thanksgiving Day and Christmas Day.
(b) Landlord shall make available to Tenant electric power facilities as
provided in Exhibit D sufficient to furnish power for lighting, typewriters,
voice writers, calculating machines and other machines of similar low electrical
consumption, but not including electronic data processing equipment which
(singularly) consumes more than 0.5 kilowatts per hour at a rated capacity or
requires a voltage other than 120 volts single phase or as otherwise provided in
the working drawings approved by Landlord under Exhibit D. In the event that, in
Landlord's commercial reasonable judgment, Tenant's use of electricity exceeds
that which is contemplated by the preceding sentence, Tenant shall bear the
entire cost thereof, including, without limitation, the cost of any metering
devices which may be necessary to determine the amount of such excess. Landlord
shall also make available electric lighting and current for the common areas of
the Building in the manner and to the extent deemed by Landlord to be standard.
The obligation of Landlord hereunder to make available such utilities shall be
subject to the rules and regulations of the supplier of such utilities and of
any municipal or other governmental authority regulating the business of
providing such utility service. Landlord shall not in any way be liable or
responsible to Tenant for any loss or damage or expense that Tenant may sustain
or incur if either the quantity or character of any utility service is changed.
Any riser or risers or wiring to meet Tenant's excess electrical requirements
will be installed by Landlord at the sole cost and expense of Tenant subject to
the allowance on Exhibit D (if, in Landlord's sole judgment, the same are
necessary and will not cause any permanent damage or injury to the Building or
the Premises or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants or occupants). When unusual or uncommon heat generating
machines, equipment, fixtures, or devices which substantially affect the
temperature otherwise maintained by the air conditioning system, are used in the
Premises by Tenant, Landlord shall have the right to install supplementary air
conditioning units in the Premises, and the cost thereof, including the cost of
installation and the cost of operation and maintenance thereof, shall be paid by
Tenant to Landlord upon demand by Landlord.
(c) Failure to any extent to make available, or any slowdown, stoppage or
interruption of, the services set forth in this Paragraph 4 resulting from any
cause unless due to Landlord's gross negligence or willful misconduct
provided, however, Landlord shall use its best efforts to resume said services
in a timely manner not to exceed thirty (30) days after written notice from
Tenant if within Landlord's reasonable control. Should any equipment or
machinery furnished by Landlord break down or for any cause cease to function
properly, Landlord shall use reasonable diligence to repair same promptly, but
Tenant shall have no claim for abatement of Rent or damages on account of any
interruption in service occasioned thereby or resulting therefrom.
(d) Notwithstanding any termination of this Lease prior to the Lease
expiration date, Tenant's obligations to pay any and all additional rent
pursuant to this Lease shall continue and shall cover all periods up to the
expiration date of this Lease; and, if Landlord properly terminates this lease
without specifically waiving in writing Landlord's right to seek damages
2
6
against Tenant, Tenant's obligations to pay any and all additional rent pursuant
to this Lease shall not terminate as a result thereof. Tenant's obligations to
pay any and all additional rent or other sums owing by Tenant to Landlord under
this Lease shall survive any expiration or termination of this Lease.
(e) The covenants and obligations of Tenant to pay the Adjusted Rental and
all additional rental (collectively, the "Rent") hereunder shall be
unconditional and independent of any other covenant or condition imposed on
either Landlord or Tenant, whether under this Lease, at law or in equity.
5. Leasehold Improvements. Improvements to the Premises shall be installed
as provided in Exhibit D. Landlord has made no representation or warranties as
to the condition of the Premises, the Building or the Property, nor has Landlord
made any commitments to remodel, repair or decorate, except as expressly set
forth herein and in Exhibit D. Otherwise, Tenant acknowledges that Tenant is
entering into this Lease on an "as is" basis.
6. Use. Tenant shall use the Premises only for the Permitted Use. Tenant
will not occupy or use the premises, or permit any portion of the Premises to be
occupied or used, for any business or purpose other than the Permitted Use or
for any use or purpose, which is unlawful in part or in whole or deemed to be
disreputable in any manner or extra hazardous on account of fire, nor permit
anything to be done that will in any way increase the rate of insurance on the
Building or contents. Tenant will conduct its business and control its agents,
employees and invitees in such a manner as not to create any nuisance, nor
interfere with, annoy or disturb other tenants or Landlord in the management of
the Building. Tenant will maintain the Premises in a clean, healthful and safe
condition and will comply with all laws, ordinances, orders, rules and
regulations (state, federal, municipal and other agencies or bodies having any
jurisdiction thereof) with reference to the use, condition or occupancy of the
Premises.
7. TENANT'S REPAIRS AND ALTERATIONS. Tenant agrees, at its own cost and
expense, to repair or replace any damage or injury done to the Property, or any
part thereof, by Tenant or Tenant's agents, employees, invitees, or visitors;
provided, however, if Tenant fails to make such repairs or replacement, within
fifteen (15) days after the occurrence of such damage or injury, Landlord may,
at its option, make such repairs or replacement, and Tenant shall pay the cost
thereof (plus an additional charge of fifteen percent [15%] of such cost to
cover overhead) to Landlord within fifteen (15) days after Tenant's receipt of a
request from Landlord to do so. Tenant further agrees not to commit or allow any
waste or damage to be committed on any portion of the Property, and at the
termination of this Lease, by lapse of time or otherwise, Tenant shall deliver
up said Premises to Landlord in as good condition as at the commencement date,
ordinary wear and tear excepted. Unless otherwise expressly stipulated herein,
Landlord shall not be required to make any improvements or repairs of any kind
or character on or to the Property, or any portion thereof, during the term of
this Lease, except such repairs as may be required for normal maintenance
operations and such additional maintenance as may be deemed necessary by
Landlord because of damages, except damages caused by Tenant, its agents,
employees, invitees or visitors. Tenant, without the prior written consent of
Landlord, shall not paint, install lighting or decorations, or install any
signs, window or door lettering or advertising media of any type on or about the
Property, or any part thereof, or make any other alterations or physical
additions in or to the Property, or any part thereof. All alterations, additions
or improvements (whether temporary or permanent in character) made in or upon
the Property, either by Landlord or Tenant, shall be Landlord's property on
termination of this Lease and shall remain on the Property without compensation
to Tenant or, at Landlord's option, Tenant shall restore those portions of the
Premises which Tenant altered, added to or improved to their original condition.
All furniture, movable trade fixtures and equipment installed in the Premises by
Tenant may be removed by Tenant at the termination of this Lease if Tenant so
elects, and shall be so removed if required by Landlord, or if not so removed
shall, at the option of Landlord, become the property of Landlord. In the event
of any such removal, Tenant shall, at its expense, repair and restore to its
original condition any portion of the Premises which is damaged by such removal.
All such installations, removals and restorations shall be accomplished in a
good workmanlike manner so as not to damage the Premises or the primary
structure or structural qualities of the Building or the plumbing, electrical
lines or other utilities.
8. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign all or any portion of this Lease, nor
sublet the Premises or any part thereof, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld so long as the
assignee or sublessee is not an existing tenant nor an existing prospect of the
Building. In the event Tenant should desire to assign all or any portion of this
Lease or sublet the Premises or any part thereof, Tenant shall give Landlord
notice of such desire at least sixty (60) days in advance of the date on which
Tenant desires to make such assignment or sublease, which notice shall contain
the name of the proposed assignee or subtenant and the nature and character of
the business of the proposed assignee or subtenant, the term, use, rental rate
(which must not be less than the Adjusted Rental per square foot of NRA which
was otherwise due from Tenant hereunder) and other particulars of the proposed
subletting or assignment, including, without limitation, evidence satisfactory
to Landlord that the proposed subtenant or assignee is financially responsible
and will immediately occupy and thereafter use the Premises ( or any sublet
portion thereof) for the remainder of the Lease Term (or for the entire term of
the sublease, if shorter). Landlord shall then have a period of thirty (30) days
following receipt of such notice within which to notify Tenant in writing that
Landlord elects (1) to terminate this Lease as to the space so affected as of
the date so specified by Tenant for such assignment or subletting, but only if
the portion of space that is being sublet or assigned is greater than fifty
(50%) of the entire space leased by Tenant, or (2) to approve or disapprove
Tenant's proposed assignment or sublease. If Landlord shall fail to notify
Tenant in writing of such election within said thirty (30) day period, Landlord
shall be deemed to have denied consent to such assignment or sublease. If
Landlord consents to an assignment or sublease, Tenant agrees to provide, at its
expense, direct access from the assignment or subletting space to a public
corridor of the Building. All plans and specifications for any alterations which
may be necessary to provide such access shall be submitted by Tenant to Landlord
for its prior written approval, which approval shall not be unreasonably
withheld. No assignment or subletting by tenant shall relieve Tenant of any
obligations under this Lease. Consent of Landlord to a particular assignment or
sublease or other transaction shall not be deemed a consent to any other or
subsequent transaction.
(b) If Landlord consents to any subletting or assignment by Tenant as
hereinabove provided, and subsequently any category of Rent received by tenant
under any such sublease is in excess of the same category of Rent payable to
Landlord under this Lease, or any additional consideration is paid to Tenant by
the assignee under any such assignment, then Landlord may, at its option, either
(1) declare such excess rents under any sublease or such additional
consideration for any assignment to be due and payable by Tenant to Landlord as
additional rent hereunder, or (2) elect to cancel this Lease as provided in
subparagraph (a) above and at Landlord's option, enter into a lease directly
with such assignee or subtenant, without liability to Tenant.
(c) Landlord shall have the right to transfer and assign, in whole or in
part, all its rights and obligations hereunder and in the Building and Property
referred to herein, and in such event and upon assumption by the transferee of
Landlord's obligations hereunder (any such transferee to have the benefit of,
and be subject to, the provisions of this Lease), no further liability or
obligation shall thereafter accrue against Landlord hereunder.
(d) If Tenant is a corporation, then any merger, consolidation,
dissolution, or liquidation, or any change in ownership or power to vote of
fifty percent (50%) or more of its outstanding voting stock shall constitute an
assignment for the purpose of this Lease. If Tenant is a partnership, joint
venture or other entity, then any liquidation, dissolution, or transfer of
ownership of any interests totaling fifty percent (50) or more of the total
interests in such entity shall constitute an assignment for purposes of this
Lease.
3
7
(e) Tenant agrees that it shall not place (or permit any employee or agent
to place) any signs on or about the Property, nor conduct (or permit any
employee or agent to conduct) any public advertising which includes any
pictures, renderings, sketches or other representation of any kind of the
Building (or a portion thereof) with respect to any proposed assignment or
subletting of the Premises or any part thereof, without Landlord's prior written
consent.
(f) Tenant shall not mortgage, pledge, hypothecate or otherwise encumber
(or grant a security interest in) this Lease or any of Tenant's rights hereunder
except that Landlord shall not unreasonably withhold its consent to Tenant's
collateral assignment of this Lease to Tenants lender.
(g) Tenant shall not sell, transfer, exchange, distribute or otherwise
dispose of more than thirty percent (30%) of its assets (other than the Lease)
without the prior written consent of Landlord.
9. INDEMNITY. Landlord shall not be liable or responsible to Tenant for any
loss or damage to any property or person occasioned by theft, act of God, public
enmity, injunction, riot, strike, insurrection, war, court order, requisition or
order of governmental body or authority, or for any damage or inconvenience that
may arise through repair or alteration of any part of the Building, or failure
to make any such repairs. In addition, Landlord shall not be liable to Tenant,
or to Tenant's agents, servants, employees, customers or invitees and Tenant
shall indemnify and save harmless Landlord of and from all fines, suits, claims,
demands, losses and actions (including attorney's fees) for any injury to person
or damage to property caused by any act, omission or neglect of Tenant, Tenant's
agents, servants, employees, customers or invitees.
10. SUBORDINATION. Subject to Tenant's receipt of a reasonable
non-disturbance agreement, this Lease and all rights of Tenant hereunder are
subject and subordinate to any deeds of trust, mortgages or other instruments of
security, as well as to any ground leases or primary leases, that now or
hereafter cover all or any part of the Property, or any interest of Landlord
therein, and to any and all advances made on the security thereof, and to any
and all increase, renewals, modifications, consolidations, replacements and
extensions of any of such deeds of trust, mortgages, instruments of security or
leases. This clause shall be self-operative and no further instrument of
subordination need be required by any mortgagee. In confirmation of such
subordination, however, Tenant shall execute promptly any appropriate
certificate or instrument that Landlord may request, including, without
limitation, a Subordination, Attornment, Notice and Non-Disturbance Agreement in
form satisfactory to Landlord's mortgagee. In the event of the enforcement by
the trustee or the beneficiary under any such mortgage or trusts of the remedies
provided for by law or by such mortgage or deed of trust. Tenant will, upon
request of any person or party succeeding to the interest of Landlord as a
result of such enforcement, automatically become the tenant of such successor in
interest without change in the terms or other provisions of this Lease;
provided, however, that such successor in interest shall not be bound by or
liable for (i) any payment of Rent for more than one month in advance except
prepayments (in an amount not in excess of one month's Adjusted Rental) in the
nature of security for the performance by Tenant of its obligations under this
Lease, (ii) any amendment or modification of this Lease made without the written
consent of such trustee or such beneficiary or such successor in interest, or
(iii) any offset, claim or cause of action which Tenant may have against
Landlord relating to the period which is prior to the time Tenant becomes the
tenant of such successor in interest. Upon request by such successor in
interest, Tenant shall execute and deliver an instrument confirming the
attornment herein provided for. Notwithstanding the foregoing provisions, Tenant
agrees that any mortgagee will have the right at any time to subordinate any
rights of such mortgagee to the rights of Tenant under this Lease. Landlord will
use good faith commercially reasonable efforts to obtain a non-disturbance
agreement from any present or future mortgagee.
11. RULES AND REGULATIONS. Tenant and Tenant's agents, employees, and
invitees shall comply fully with all requirements of the rules and regulations
of the Building and related facilities that are attached hereto as Exhibit C,
and made a part hereof as though fully set out herein. Tenant shall further be
responsible for the compliance with such rules and regulations by the employees,
servants, agents, visitors and invitees of Tenant. Landlord reserves the right
to amend or rescind any of the rules and regulations and to make such other and
further rules and regulations as in its reasonable judgment shall from time to
time be needful for the safety, protection, care and cleanliness of the
Building, the operation thereof, the preservation of good order therein and the
protection and comfort of the tenants and their agents, employees and invitees,
which rules and regulations, when made and notice thereof given to a tenant,
shall be binding upon it in like manner as if originally herein prescribed.
12. INSPECTION. Landlord or its officers, agents and representatives shall
have the right to enter into and upon any and all parts of the Premises at all
reasonable hours (or, in any emergency, at any hour) to (a) inspect same or
clean or make repairs or alterations or additions as Landlord may deem necessary
(but without any obligation to do so, except as expressly provided for herein)
or (b) show the Premises to prospective tenants, purchasers or lenders; and
tenant shall not be entitled to any abatement or reduction of Rent by reason
thereof, nor shall such be deemed to be an actual or constructive eviction.
13. CONDEMNATION. If the Premises or any part thereof, or if the Property
or any portion of the Property leaving the remainder of the Property unsuitable
for use as an office building comparable to its use on the Commencement Date of
this Lease, shall be taken or condemned in whole or in part for public purposes,
or sold in lieu of condemnation, then this Lease shall, at the sole option of
Landlord, forthwith cease and terminate; all compensation awarded for any taking
(or sale proceeds in lieu thereof) shall be the property of Landlord, and Tenant
shall have no claim thereto, the same being hereby expressly waived by Tenant.
14. FIRE OR OTHER CASUALTY. In the event that substantially all of the
Building should be destroyed by fire, tornado or other casualty or in the event
the Premises or the Building should be so damaged that rebuilding of repairs
cannot, in the reasonable judgment of Landlord be completed within one hundred
eighty (180) days after the date of such damage, Landlord may at its option
terminate this Lease by written notice to Tenant within sixty (60) days after
the occurrence of such casualty, in which event, this Lease shall terminate
effective as of the date of such damage. In the event the Building or the
Premises should be damaged by fire, tornado or other casualty covered by
Landlord's insurance, but only to such extent that rebuilding or repairs can, in
the reasonable judgment of Landlord, be completed within one hundred eighty
(180) days after the date of such damage, or if the damage should be more
serious but Landlord does not elect to terminate this Lease, in either such
event Landlord shall within thirty (30) days after the date of such damage
commence to rebuild or repair the Building and/or the Premises and shall proceed
with reasonable diligence to restore the Building and/or Premises to
substantially the same condition in which it was immediately prior to the
happening of the casualty, except that Landlord shall not be required to
rebuild, repair or replace any part of the furniture, equipment, fixtures and
other improvements which may have been placed by Tenant or other tenants within
the Building or the Premises. Landlord shall allow Tenant a diminution of Basic
Rental during the time the Premises are unfit for occupancy, which diminution
shall be based upon the proportion of square feet which are unfit for occupancy
to the total square feet in the Premises. In the event any mortgagee under a
deed of trust, security agreement or mortgage on the Building should require
that the insurance proceeds be used to retire the mortgage debt, then Landlord,
at Landlord's option, may elect not to rebuild and this Lease shall terminate
upon Tenant's receipt of a notice from Landlord to that effect within sixty (60)
days after the occurrence of the casualty. Except as hereinafter provided, any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building or to the Premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
15. HOLDING OVER. Should Tenant, or any of its successors in interest, hold
over the Premises, or any part hereof,
4
8
after the expiration of the Lease Term, unless otherwise agreed in writing by
Landlord, such holding over shall constitute and be construed as a tenancy at
will only, at a daily rental equal to the daily Rent payable for the last month
of the Lease Term plus fifty percent (50%) of such amount. The inclusion of the
preceding sentence shall not be construed as Landlord's consent for Tenant to
hold over.
16. TAXES ON TENANT'S PROPERTY. Tenant shall be liable for all taxes levied
or assessed against all personal property, furniture or fixtures placed by
Tenant in the Premises. If any such taxes for which Tenant is liable are levied
or assessed against Landlord or Landlord's property and if Landlord elects to
pay the same or if the assessed value of Landlord's property is increased by
inclusion of personal property, furniture or fixtures placed by Tenant in the
Premises, and Landlord elects to pay the taxes based on such increase, Tenant
shall pay to Landlord upon demand that part of such taxes for which Tenant is
primarily liable hereunder.
17. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this Lease:
(a) Tenant shall fail to pay when due any Rent or other sums
payable by Tenant hereunder (or under any other lease now or hereafter executed
by Tenant in connection with space in the Building) within ten (10) days
after written notice from Landlord, provided that Landlord is only obligated to
notify Tenant of monetary default two (2) times per calendar year and no more
than five (5) times during the term of this Lease.
(b) Tenant shall fail to comply with or observe any other
provision of this Lease (or any other lease now or hereafter executed by Tenant
in connection with space in the Building) within thirty (30) days after written
notice from Landlord, provided that Landlord is only obligated to notify Tenant
of a non-monetary default two (2) times per calendar year and no more than five
(5) times during the term of this Lease.
(c) Tenant or any guarantor of Tenant's obligations hereunder
shall make an assignment for the benefit of creditors.
(d) Any petition shall be filed by or against Tenant or any
guarantor of Tenant's obligations hereunder under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof; or Tenant or any guarantor of Tenant's
obligations shall be adjudged bankrupt or insolvent in proceedings filed
thereunder.
(e) A receiver of Trustee shall be appointed for all or
substantially all of the assets of Tenant or any guarantor of Tenant's
obligations hereunder.
(f) Tenant shall desert or vacate any portion of the Premises.
18. REMEDIES. Upon the occurrence of any event of default specified
in this Lease, Landlord shall have the option to pursue any and all remedies
which it may then have hereunder or at law or in equity, including, without
limitation, any one or more of the following, in each case, without any notice
or demand whatsoever:
(a) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in Rent, enter upon and take possession and expel or remove Tenant
and any other person who may be occupying said Premises or any part thereof, by
force if necessary, without being liable for prosecution or any claim for
damages therefor; and Tenant agrees to pay to Landlord on demand the amount of
all loss, cost, expense and damage which Landlord may suffer or incur by reason
of such termination, whether through inability to relet the Premises on
satisfactory terms or otherwise, including the loss of Rent for the remainder of
the Lease Term.
(b) Enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying the Premises or any part
thereof, by force if necessary, without being liable for prosecution or any
claim for damages therefor, and if Landlord so elects, relet the Premises on
such terms as Landlord shall deem advisable (including, without limitation, such
concessions and free rent as Landlord deems necessary or desirable) and receive
and retain all of the rent therefor; and Tenant agrees (i) to pay to Landlord on
demand any deficiency that may arise by reason of such reletting for the
remainder of the Lease Term, and (ii) that Tenant shall not be entitled to any
rents or other payments received by Landlord in connection with such reletting
even if such rents and other payments are in excess of the amounts that would
otherwise be payable to Landlord under this Lease.
(c) Make such payments and/or take such action (including, without
limitation, entering upon the Premises by force if necessary, without being
liable for prosecution or any claim for damages therefor) and pay and/or perform
whatever Tenant is obligated to pay or perform under the terms of this Lease;
and Tenant agrees to reimburse Landlord on demand for any expenditures and
expenses (together with interest thereon at the Past Due Rate from the date paid
by Landlord) which Landlord may make or incur in thus effecting compliance with
Tenant's obligations under this Lease, and Tenant further agrees that Landlord
shall not be liable for any damages resulting to Tenant from such action.
(d) Collect, from time to time, by suit or otherwise, each
installment of Rent or other sum as it becomes due hereunder, or to enforce,
from time to time, by suit or otherwise, any other term or provision hereof on
the part of Tenant required to be kept or performed.
(e) In lieu of the monthly payments of Rent to be made by Tenant
to Landlord pursuant to the preceding paragraphs (but in addition to the sums
payable for Landlord's expenses for keeping the Premises in good order and for
preparing the same for reletting), Landlord may elect to recover from Tenant,
and Tenant agrees to pay, upon demand, as liquidated damages, an amount equal to
the difference between the Rent reserved for the unexpired portion of the term
of this Lease and the then prevailing rental rate of the Premises for the same
period, discounted to the date of termination at the rate of seven percent (7%)
per annum.
(f) No re-entry or taking possession of the Premises by Landlord
shall be construed as an election on its part to terminate this Lease, unless a
notice of such intention be given to Tenant. Notwithstanding any such reletting
or re-entry or taking possession, Landlord may at any time thereafter elect to
terminate this Lease for a previous default. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any of the other remedies herein provided
or any other remedies provided by law, nor shall pursuit or any remedy herein
provided constitute a forfeiture or waiver of any Rent due to Landlord hereunder
or of any damages occurring to Landlord by reason of the violation of any of the
terms, provisions and covenants herein contained. Landlord's acceptance of any
Rent following an event of default hereunder shall not be construed as
Landlord's waiver of such event of default. No waiver by Landlord of any
violation or breach of any of the terms, provisions, and covenants herein
contained shall be deemed or construed to constitute a waiver of any other
violation or default. The loss or damage that Landlord may suffer by reason of
termination of this Lease or the deficiency from any reletting as provided for
above shall include the expense of repossession and any repairs or remodeling
undertaken by Landlord following possession. Should Landlord at any time
terminate this Lease for any default, in addition to any other remedy Landlord
may have, Landlord may recover from Tenant all damages Landlord may incur by
reason of such default (together with interest thereon at the Past Due Rate),
including the cost of recovering the Premises and the loss of Rent for the
remainder of the Lease Term.
(g) Tenant, for itself and on behalf of any and all persons
claiming through or under it, including, without limitation, all creditors of
all kinds, does hereby waive and surrender all right and privilege which it or
any of them might have under or by reason of any present or future law to redeem
the Premises or to have a continuance of this Lease after having been
dispossessed or rejected therefrom by process of law or under the terms and
conditions of this Lease or after the termination of this Lease as herein
provided.
5
9
19. SURRENDER OF PREMISES. No act or thing done by Landlord or its agents
during the term hereby granted shall be deemed an acceptance of a surrender of
the Premises, and no agreement to accept a surrender of the Premises shall be
valid unless the same be made in writing and signed by Landlord.
20. ATTORNEY'S FEES. In the event that any action or proceeding is brought
to enforce any term, covenant or condition of this Lease on the part of Landlord
or Tenant, the prevailing party in such litigation shall be entitled to
reasonable attorney's fees to be fixed by the court in such action or
proceeding.
21. MECHANIC'S LIENS. Tenant will not permit any mechanic's lien or liens
to be placed upon the Property, or any portion thereof, caused by or resulting
from any work performed, materials furnished or obligation incurred by or at the
request of Tenant, and in the case of the filing of any such lien, Tenant will
immediately pay and discharge the same or provide an adequate statutory bond to
remove same as a lien upon the Property. If default in payment thereof shall
continue for fifteen (15) days after Tenant's receipt of a notice thereof from
Landlord, Landlord shall have the right and privilege at Landlord's option of
paying the same or any portion thereof without inquiry as to the validity
thereof, and any amounts so paid, including expenses and interest, shall be so
much additional rent hereunder due from Tenant to Landlord and shall be repaid
to Landlord (together with interest at the Past Due Rate from the date paid by
Landlord) within fifteen (15) days after Tenant's receipt of a request from
Landlord therefor.
22. NO SUBROGATION-LIABILITY INSURANCE.
(a) Each party hereto hereby waives any cause of action it might
have against the other party, on account of any loss or damage that is insured
against under any standard insurance policy (to the extent such loss or damage
is recoverable under such insurance policy) that covers the Building, the
Premises, Landlord's or Tenant's fixtures, personal property, leasehold
improvements or business and which names Landlord or Tenant, as the case may be,
as a party insured, it being understood and agreed that this provision is
cumulative of paragraph 9 hereof. Notwithstanding the foregoing, the release in
the preceding sentence shall be applicable and in full force and effect only so
long as and to the extent that such release does not invalidate any policy or
policies of insurance now or hereafter maintained by the other party hereto.
Each party hereto agrees that it will request its insurance carrier to endorse
all applicable policies waiving the carrier's rights of recovery under
subrogation or otherwise against the other party.
(b) Tenant shall, at its expense, maintain a policy or policies of
comprehensive general liability insurance pertaining to its use and occupancy of
the Premises hereunder, with the premiums thereof fully paid in advance, issued
by and binding upon a solvent insurance company approved by Landlord, such
insurance to name Landlord and Tenant as insureds and to afford minimum
protection of not less than One Million and No/100 Dollars ($1,000,000.00)
combined single limit for bodily injury, death to any one person or property
damage in any one occurrence. Upon Tenant's execution of this Lease and at any
time from time to time thereafter when Landlord so requests, Tenant shall
furnish a certificate of insurance and such other evidence satisfactory to
Landlord of the maintenance of all insurance coverages required hereunder, and
Tenant shall obtain written obligation on the part of each insurance company to
notify Landlord at least thirty (30) days prior to cancellation of material
change of any such insurance.
23. BROKERAGE. Tenant warrants that it has had no dealings with any broker
or agent: other than Xxxx Xxxxxxxxx of HS Capital in connection with the
negotiation or execution of this Lease and Tenant agrees to indemnify Landlord
against all costs, expenses, attorney's fees or other liability for commissions
or other compensation or charges claimed by any broker or agent claiming the
same by, through or under Tenant for this Lease, or any renewals, extension,
amendments, addenda or expansions with respect to this Lease.
24. CHANGE OF BUILDING NAME. Landlord reserves the right at any time
to change the name by which the Building is designated.
25. Estoppel Certificates. From time to time when requested by Landlord,
Tenant shall deliver to any prospective purchaser, present or future mortgagee
or lessor, in each case, of all or any part of the Property, or any interest of
Landlord therein, a certificate signed by Tenant confirming and containing such
factual certificates and representations deemed appropriated by Landlord or any
such purchaser, mortgagee or lessor, and Tenant shall, within fifteen (15) days
following Tenant's receipt of said proposed certificate from Landlord, return a
fully executed copy of said certificate to Landlord. In the event Tenant shall
fail to return a fully executed copy of such certificate to Landlord within the
foregoing fifteen (15) day period, then Tenant shall be deemed to have approved
and confirmed all of the terms, certifications and representations contained in
such certificate.
26. NOTICES. Each provision of this Lease, or of any applicable
governmental laws, ordinances, regulations, and other requirements with
reference to the sending, mailing or delivery of any notice, or with reference
to the making of any payment or request by Tenant or Landlord, shall be deemed
to be complied with when and if the following steps are taken:
(a) All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to, and must be received by, Landlord on the
date due and at the address set forth in the Basic Lease Information or at such
other address as Landlord may specify from time to time by written notice
delivered in accordance herewith.
(b) Any notice, request or document (excluding Rent or other
payments) permitted or required to be delivered hereunder must be in writing and
shall be deemed to be received if actually received and whether or not received
when deposited in the United States mail, postage prepaid, certified or
registered mail (with or without return receipt requested), addressed to the
parties hereto at the respective addresses set forth in the Basic Lease
Information or at such other address as either of said parties have theretofore
specified by written notice delivered in accordance herewith.
27. SEPARABILITY. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the Lease
Term, then and in that event, it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
28. AMENDMENTS; BINDING EFFECT. This Lease may not be altered, changed or
amended, except by instrument in writing signed by both parties hereto. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord and addressed to Tenant, nor shall
any custom or practice which may evolve between the parties in the
administration of the terms hereof be construed to waive or lessen the right of
Landlord to insist upon the performance by Tenant in strict accordance with the
terms hereof. The terms and conditions contained in this Lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto, and upon their
respective successors in interest and legal representatives, except as otherwise
herein expressly provided.
29. QUIET ENJOYMENT. Provided Tenant has performed all of the terms and
conditions of this Lease, including the
6
10
payment of Rent, to be performed by Tenant, Landlord covenants that Tenant shall
have the peaceable and quiet enjoyment of the Premises by Tenant during the
Lease Term, subject to the terms and conditions of this Lease.
30. GENDER. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
31. JOINT AND SEVERAL LIABILITY. If there be no more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several. If there
be a guarantor of Tenant's obligations hereunder, the obligations hereunder
imposed upon Tenant shall be the joint and several obligations of Tenant and
such guarantor and Landlord need not first proceed against Tenant before
proceeding against such guarantor nor shall any such guarantor be released from
its guaranty for any reason whatsoever, including, without limitation, in case
of any amendments hereto, waivers hereof or failure to give such guarantor any
notices hereunder.
32. PERSONAL LIABILITY. The liability of Landlord to Tenant for any claim
against Landlord which arises under or by reason of this Lease shall be limited
to the interest of Landlord in the Property, and Landlord shall not be
personally liable for any deficiency. This clause shall not be deemed to limit
or deny any remedies which Tenant may have in the event of default by Landlord
hereunder which do not involve the personal liability of Landlord.
33. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the following
rights, exercisable without notice and without liability to Tenant for damage or
injury to property, persons or business and without effecting an eviction,
constructive or actual, or disturbance of Tenant's use or possession or giving
rise to any claim for setoff or abatement of Rent:
(a) To decorate and to make repairs, alterations, additions,
changes or improvements, whether structural or otherwise, in and about the
Property, or any part thereof, and for such purposes to enter upon the Premises
and, during the continuance of any such work, to temporarily close doors,
entryways, public space and corridors in the Building, to interrupt or
temporarily suspend Building services and facilities and to change the
arrangement and location of entrances or passageways, doors and doorways,
corridors, elevators, stairs, toilets, or other public parts of the Building,
all without abatement of Rent or affecting any of Tenant's obligations
hereunder, so long as the Premises are reasonably accessible.
(b) To have and retain a paramount title to the Premises free and
clear of any act of Tenant purporting to burden or encumber them.
(c) To grant to anyone the exclusive right to conduct any business
or render any service in or to the Building, provided such exclusive right shall
not operate to exclude Tenant from the use expressly permitted herein.
(d) To prohibit the placing of vending or dispensing machines of
any kind in or about the Premises without the prior written permission of
Landlord.
(e) To have access for Landlord and other tenants of the Building
to any mail chutes located on the Premises according to the rules of the United
States Postal Service.
(f) To take all such reasonable measures as Landlord may deem
advisable for the security of the Property and its occupants, including, without
limitation, the evacuation of the Building for cause, suspected cause, or for
drill purposes, the temporary denial of access to the Building, and the closing
of the Building after normal business hours and on Saturdays, Sunday and
Holidays, subject, however, to Tenant's right to admittance when the Building is
closed after normal business hours under such reasonable regulations as Landlord
may prescribe from time to time which may include, by way of example but not of
limitation, that persons entering or leaving the Building, whether or not during
normal business hours, identify themselves to a security officer by registration
or otherwise and that such persons establish their right to enter or leave the
Building.
34. NOTICE TO LENDER. If the Property or any part thereof is at any time
subject to a first mortgage or a first deed of trust or other similar
instruments and this Lease or any of the Rent is assigned to such mortgagee,
trustee or beneficiary and Tenant is given written notice thereof, including the
post office address of such assignee, then Tenant shall not terminate this Lease
or xxxxx any of the Rent for any default on the part of Landlord without first
giving written notice by certified or registered mail, return receipt requested,
to such assignee, specifying the default in reasonable detail, and affording
such assignee a reasonable opportunity to make performance, at its election, for
and on behalf of Landlord.
35. CAPTIONS. The captions contained in this Lease are for
convenience of reference only, and in no way limit or enlarge the terms and
conditions of this Lease.
36. MISCELLANEOUS.
(a) Any approval by Landlord or Landlord's architects and/or
engineers of any of Tenant's drawings, plans and specifications that are
prepared in connection with any construction of improvements in the Premises
shall not in any way be construed or operate to bind Landlord or to constitute a
representation or warranty of Landlord as to the adequacy or sufficiency of such
drawings, plans and specifications, or the improvements to which they relate,
for any use, purpose, or condition, but such approval shall merely be the
consent of Landlord as may be required hereunder in connection with Tenant's
construction of improvements in the leased Premises in accordance with such
drawings, plans and specifications.
(b) Each and every consent and agreement contained in this Lease
is, and shall be construed to be, a separate and independent covenant and
agreement.
(c) There shall be no merger of this Lease or of the leasehold
estate hereby created with the fee estate in the leased Premises or any part
thereof by reason of the fact that the same person may acquire or hold, directly
or indirectly, this Lease or the leasehold estate hereby created or any interest
in this Lease or in such leasehold estate as well as the fee estate in the
leasehold Premises or any interest in such fee estate.
(d) Neither Landlord nor Landlord's agents or brokers have made
any representations or promises with respect to the Property, or any portion
thereof, except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this Lease.
(e) The submission of this Lease to Tenant for examination does
not constitute an offer, reservation or option in favor of Tenant, and Tenant
shall have no rights with respect to this Lease or the Premises unless and until
Landlord shall elect, or shall elect to cause its managing agent, to execute a
copy of this Lease and deliver the same to Tenant, the date of which delivery
shall be deemed the "Delivery Date".
38. LENDER'S APPROVAL. If, in connection with Landlord's obtaining any
financing or refinancing for the Property, or
7
11
any portion thereof, any bank, savings and loan association, insurance company,
institutional lender, or other financing source (the "Lender") shall request
reasonable modifications to this Lease, Tenant will not unreasonably withhold or
delay its consent thereto, provided that such modifications do not materially
increase the obligations of Tenant hereunder or materially adversely affect
Tenant's interest in this Lease. In no event shall a requirement that the
consent of any such Lender be given for any modification of this Lease or for
any assignment or sublease be deemed to materially adversely affect Tenant's
obligations hereunder or the leasehold interest hereby created. If, within
thirty (30) days from the Delivery Date, such Lender approves this Lease only
upon the basis of modification of the terms and provisions of this Lease,
Landlord shall have the right to cancel this Lease if Tenant refuses to approve
in writing any such modification within fifteen (15) days after Landlord's
request thereof. Landlord agrees to use best efforts to obtain such Lender's
approval. Landlord's right to cancel this Lease, due to Tenant's refusal to
accept changes required by such lender, shall be null and void if not exercised
within forty-five (45) days from the Delivery Date. If such right to cancel is
exercised, this Lease shall thereafter be null and void, any security deposit
received hereunder shall be returned to Tenant, and neither party shall have any
liability to the other by reason of such cancellation.
39. PREVAILING RENTAL RATE. In the event that any provision of this Lease
provides for the payment or determination of any Basic Rental at "the prevailing
rental rate" or at "the Market Rate" or other similar provision (in any case,
the "Market Rate") and Landlord and Tenant are unable to agree upon the Market
Rate, Landlord and Tenant shall each promptly appoint a real estate appraiser
who is a member of the American Institute of Real Estate Appraisers (or its
equivalent) to assist in the determination of the Market Rate, and the two
appraisers shall appoint a third appraiser who is also a member of the American
Institute of Real Estate Appraisers (or its equivalent). The determination of
the Market Rate by the agreement of any two of such three appraisers shall be
accepted by and binding upon Landlord and Tenant as the Market Rate. Landlord
and Tenant will use all reasonable diligence to cause their appointed appraisers
to perform in good faith and in a timely manner in order to make the
determination of the Market Rate on or before the date on which the Market Rate
is to become effective. In the event such appraisers shall not make such
determination prior to the date on which the Market Rate is to become effective,
(a) this Lease shall nevertheless continue in full force and effect until such
determination is made, (b) the Rental for such period shall be payable at the
rate otherwise payable hereunder, and (c) upon the determination by such
appraisers of the Market Rate, the payment of the Market Rate shall commence on
the first day of the month following the date of such determination, and in
addition to such monthly installment of Rent. Tenant shall pay to Landlord the
increase in the Rent payable hereunder, if any, applicable to the period from
the date on which the Market Rate was scheduled to become effective to the
payment of the first installment at the Market Rate. In the event that the
determination of the Market Rate is not made prior to the time which is six (6)
months after the date upon which the Market Rate is to become effective, the
determination of the Market Rate by the third appraiser shall be accepted and
binding upon Landlord and Tenant as the Market Rate, and the provisions of
subparagraph (c) in the preceding sentence shall apply. Landlord and Tenant
shall each bear the costs and fees of their respective appraisers and shall
share equally the cost of the third appraiser.
40. FORCE MAJEURE. In the event that Landlord or Tenant shall be delayed in
the performance of any obligation of Landlord such party hereunder as a result
of strikes, lockouts, shortages of labor, fuel or materials, acts of God, legal
requirements, fire or other casualty, or any other cause beyond the control of
Landlord such party, then the performance of such obligation shall be excused
for the period of such delay, and the period for the performance of such
obligation shall be extended by the number of days equivalent to the number of
days of such delay, provided that in no event shall any extension be allowed
with respect to the payment of Rent or any other financial obligations under
this Lease. Landlord shall in no event be required to settle or compromise any
strike, lockout or other labor disputes, the resolution thereof being within the
sole discretion of Landlord.
41. APPLICABLE LAW. This Lease has been executed in the State of Texas and
shall be governed in all respects by the laws of the State of Texas. It is the
intent of Landlord and Tenant to conform strictly to all applicable state and
federal usury laws. All agreements between Landlord and Tenant, whether now
existing or hereafter arising and whether written or oral, are hereby expressly
limited so that in no contingency or event whatsoever shall the amount
contracted for, charged or received by Landlord for the use, forbearance or
detention of money hereunder or otherwise exceed the maximum amount which
Landlord is legally entitled to contract for, charge or collect under applicable
state or federal law. If, from any circumstance whatsoever, fulfillment of any
provision hereof at the time performance of such provision shall be due shall
involve transcending the limit of validity prescribed by law, then the
obligation to be fulfilled shall be automatically reduced to the limit of such
validity, and if from any such circumstance, Landlord shall ever receive as
interest or otherwise an amount in excess of the maximum that can be legally
collected, then such amount which would be excessive interest shall be applied
to the reduction of the Rent; and if such amount which would be excessive
interest exceeds the Rent, then such additional amount shall be refunded to
Tenant.
42. THIRD PARTY RIGHTS. Nothing herein expressed or implied is
intended, or shall be construed, to confer upon or give to any person or entity,
other than the parties hereto, any right or remedy under or by reason of this
Lease.
43. EXHIBITS AND ATTACHMENTS. All exhibits, attachments, riders and addenda
referred to in this Lease and the exhibits listed hereinbelow and attached
hereto are incorporated into this Lease and made a part hereof for all intents
and purposes as if fully set out herein. All capitalized terms used in such
documents shall, unless otherwise defined therein, have the same meanings as are
set forth herein.
44. HAZARDOUS MATERIALS. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
or chemically active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Project any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local
laws and regulations adopted under these acts. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Premises. In addition, Tenant shall execute
affidavits, representations and the like from time to time at Landlord's request
concerning Tenant's best knowledge and belief regarding the presence of
hazardous substances or materials on the Premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this lease from any
release of hazardous materials on the Premises occurring while Tenant is in
possession, or elsewhere if caused by Tenant or persons acting under Tenant. The
within covenants shall survive the expiration or earlier termination of the
Lease Term.
Rest of Page Intentionally Left Blank
8
12
45. LANDLORD'S LIEN. In consideration of the mutual benefits arising under
this Lease, Tenant hereby grants to Landlord a lien and security interest on all
property of Tenant now or hereafter placed in or upon the Premises, and such
property shall be and remain subject to such lien and security interest of
Landlord for payment of all Rent and other sums agreed to be paid by Tenant
herein. Said lien and security interest shall be in addition to and cumulative
of Landlord's liens provided by law. This Lease shall constitute a security
agreement under the Uniform Commercial Code so that Landlord shall have and may
enforce a security interest on all property of Tenant now or hereafter placed in
or on the Premises by Tenant. Tenant agrees to execute as debtor such financing
statement or statements as Landlord may now or hereafter request in order that
such security interest or interests may be protected pursuant to said Code.
Landlord may at its election at any time file a copy of this Lease as a
financing statement. Landlord, as secured party, shall be entitled to all of the
rights and remedies afforded a secured party under said Uniform Commercial Code,
which rights and remedies shall be in addition to and cumulative of Landlord's
liens and rights provided by law or by the other terms and provisions of this
Lease. Landlord agrees to subordinate its contractual and statutory liens to a
single lender providing financing to Tenant, pursuant to a subordination
agreement mutually acceptable to Landlord.
EXHIBIT A - LEGAL DESCRIPTION
EXHIBIT B - OUTLINE OF PREMISES
EXHIBIT C - BUILDING RULES AND REGULATIONS
EXHIBIT D - BUILDING STANDARD IMPROVEMENTS
EXHIBIT E - PARKING
EXHIBIT F - OPERATING EXPENSES
EXHIBIT G - SUBSTITUTION SPACE
EXHIBIT H - ACKNOWLEDGMENT OF LEASE COMMENCEMENT AND LIEN RIGHTS
EXHIBIT I - SPECIAL PROVISIONS
DATED as of the date first above written.
LANDLORD: TENANT:
BC PLAZA II/III, LTD. Team Tech International, Inc.
a Texas limited partnership
By: Xxxxxxxx Xxxx Central Texas
Development, Inc., a Delaware corporation
Its General Partner
/s/ Xxxx Xxxxx /s/ Art Xxxxxxx
----------------------------------- -------------------------------------
By: Xxxx Xxxxx By: Art Xxxxxxx
----------------------------- -------------------------------
Title: CEO/President Title: President
----------------------------- -------------------------------
10
