NORTH CENTRAL PLAZA THREE
STANDARD FORM OFFICE LEASE
BETWEEN
Xxxx/Xxxxxxx Xxxxx Real Estate Opportunity Partners Limited
Partnership II ("LANDLORD"), by its agent,
Equity Assets Management, Inc,
AND
Lafarge Corporation ("TENANT")
TABLE OF CONTENTS
I. Basic Lease Information; Definitions 1
II. Lease Grant 3
III. Possession 3
IV. Use 3
V. Rent 3
VI. Security Deposit 4
VII. Services to be Furnished by Landlord 4
VIII. Leasehold Improvements 6
IX. Graphics 6
X. Repairs and Alterations 6
XI. Use of Electrical and HVAC Services by Tenant 7
XII. Entry by Landlord 7
XIII. Assignment and Subletting 7
XIV. Liens 9
XV. Indemnity and Waiver of Claims 9
XVI. Tenant's Insurance 10
XVII. Subrogation 11
XVIII. Landlord's Insurance 11
XIX. Casualty Damage 11
XX. Demolition 12
XXI. Condemnation 12
XXII. Events of Default 13
XXIII. Remedies 13
XXIV. LIMITATION OF LIABILITY 15
XXV. No Waiver 15
XXVI. Event of Bankruptcy 15
XXVII. Quiet Enjoyment 15
XXVIII. Relocation 16
XXIX. Holding Over 16
XXX. Subordination to Mortgages 17
XXXI. Attorney's Fees 17
XXXII. Notice 17
XXXIII. Landlord's Lien 18
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XXXIV. Excepted Rights 18
XXXV. Surrender of Premises 19
XXXVI. Miscellaneous 19
XXXVII. Entire Agreement 20
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OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease"), is made and entered into as
of the 26 day of February, 1993, by and between Xxxx/Xxxxxxx Xxxxx Real
Estate Opportunity Partners Limited ("Landlord") by its Agent, Equity Assets
Management, Inc. end Lafarge Corporation, a Maryland corporation ("Tenant").
I. BASIC LEASE INFORMATION; DEFINITIONS.
A. The following is some of the basic lease information and defined
terms used in this Lease.
1. "Broker" means The Xxxxxxxxxx Company.
2. "Building" shall mean the office building located at 00000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxx xx Xxxxx commonly known as
North Central Plaza Three and located on the real property described on
Exhibit A-2.
3. The "Lease Term" shall mean a period of sixty (60) months
commencing on April 1, 1993 (the "Commencement Date") and, unless sooner
terminated as provided herein, ending on March 31, 1998 (the "Termination
Date"), provided, however, with respect to Suites 1250 and 1270 only the
"Lease Term" shall mean a period of nine (9) months commencing on April 1,
1993 and, unless sooner terminated as provided herein, ending on December 31,
1993.
4. INTENTIONALLY OMITTED
5. "Landlord Work" shall mean the work, if any, that Landlord is
obligated to perform in the Premises pursuant to the Work Letter Agreement
attached hereto as Exhibit "C".
6. "Notice Addresses" shall mean the following addresses for
Tenant and Landlord respectively:
Tenant:
Lafarge Corporation
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx
With a copy to:
Xxxxxxxx & Knight
3300 First City Center
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Landlord:
First Office Management
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Building Manager
With a copy to:
Equity Assets Management, Inc.
c/o First Office Management
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
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Payments of Rent only shall be made payable to the order of
North Central Plaza Three at the following address:
First Office Management
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
7. "Permitted Use" shall mean: Sales and administrative
operations. Landlord acknowledges the Premises shall be occupied by Lafarge
Construction Materials, a division of Tenant.
8. "Premises" shall mean the area located on the second (2nd)
and twelfth (12th) floors of the building and outlined on Exhibit A and A-1
attached hereto and incorporated herein and known as Xxxxxx #000, #0000 and
#1270.
9. "Prepaid Rental": INTENTIONALLY OMITTED
10. "Rentable Area of the Premises" shall mean the area contained
within the demising walls of the Premises and any other area designated for
the exclusive use of Tenant, without deduction for any columns or projections
necessary to the Building, plus a proportionate share of any Common Areas
located on the floor(s) on which the Premises is located and a proportionate
share of the Building's public areas, management office, engineer's office
and "Mechanical Spaces" i.e. spaces housing service areas, equipment and/or
access corridors for HVAC and communications facilities, plumbing, fire
protection and elevators. With respect to the period beginning on the
Commencement Date and ending on December 31, 1993, the Rentable Area of the
Premises is deemed for all purposes under this Lease to be 11,825. With
respect to the period beginning on January 1, 1994 and ending on the
Termination Date, the Rentable Area of the Premises is deemed for all
purposes under this Lease to be 7,041. The "Rentable Area of the Building"
is deemed for all purposes under this Lease to be 346,575 square feet. The
square footage amounts set forth for the Rentable Area of the Premises and
the Rentable Area of the Building constitute a material part of the economic
basis of this Lease and the execution thereof by Landlord and shall not be
adjusted without the written consent of Landlord.
11. "Security Deposit" shall mean the sum of $0.00
12. "Tenant's Pro Rata Share" shall mean 3,41 percent (3.41%),
which is the sum derived by dividing the Rentable Area of the Premises by The
Rentable Area of the Building and multiplying the result thereof by one
hundred (100), provided that effective as of January 1, 1994 "Tenant's Pro
Rata Share" shall mean 2.03 percent (2.03%).
B. The following are additional definitions of some of the defined
terms used in the Lease.
1. "Basic Costs" shall mean all direct and indirect costs and
expenses xxxxxxxx.xx connection with the Property as more fully defined in
Exhibit B-2.
2. "Building Standard" shall mean the type, grade, brand,
quality and/or quantity of materials Landlord designates from time to time to
be the minimum quality and/or quantity to be used in the Building.
3. "Business Day(s)" shall mean Mondays through Fridays
exclusive of the normal business holidays ("Holidays") of New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day
and other national holidays recognized by first-class office buildings in
Dallas.
4. "Common Areas" shall mean those areas provided for the common
use or benefit of all tenants generally and/or the public, such as corridors,
elevator foyers, common mail rooms, restrooms, vending areas and lobby areas
(whether at ground level or otherwise), and other similar facilities.
5. "Maximum Rate" shall mean the greatest per annum rate of
interest permitted from time to time under applicable federal and state law.
6. "Normal Business Hours" for the Building shall mean 7:00 a.m.
to 6:00 p.m. Mondays through Fridays, and 8:00 a.m. to 1:00 p.m, on
Saturdays, exclusive of Holidays, and such other hours as Landlord may
designate from time to time.
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7. "Prime Rate" shall mean the per annum interest rate publicly
announced by The First National Bank of Chicago from time to time (whether or
not charged in each instance) as its prime or base rate.
8. "Property" shall mean the Building, the Building Garage, if
any, all other improvements serving the Building and the tenants thereof and
the parcel(s) of land on which they are located.
II. LEASE GRANT. Subject to and upon the terms herein set forth,
Landlord leases to Tenant and Tenant leases from Landlord the Premises.
III. POSSESSION. By taking possession of the Premises, Tenant is deemed
to have;
1. accepted the Premises and agreed that the Premises is in
good order and satisfactory condition, with no representation or
warranty by Landlord as to the condition or suitability of the Premises
or of the Building for Tenant's use thereof; and
2. agreed that Landlord has no obligation to clean, decorate,
alter, remodel, improve or repair the Premises or the Building unless
said obligation is specifically set forth in this Lease.
IV. USE. The Premises shall be used for the Permitted Use and for no
other purpose. Tenant agrees not to use or permit the use of the Premises for
any purpose which is illegal, dangerous to life, limb or property or which,
in Landlord's opinion, creates a nuisance or which would increase the cost of
insurance coverage with respect to the Building. Tenant shall conduct its
business and control its agents, servants, contractors, employees, customers,
licensees, and invitees in such a manner as not to interfere with, annoy or
disturb other tenants, or in any way interfere with Landlord in the
management and operation of the Building. Tenant will maintain the Premises
in a clean and healthful condition, and comply with all laws, ordinances,
orders, rules and regulations of any governmental entity with reference to
the operation of Tenant's business and to the use, condition, configuration
or occupancy of the Premises, including without limitation, the Americans
with Disabilities Act. Tenant will comply with the rules and regulations of
the Building adopted and altered by Landlord from time to time and will cause
all of its agents, servants, contractors, employees, customers, licensees and
invitees to do so. All changes to such rules and regulations will be sent by
Landlord to Tenant in writing. A copy of the existing rules and regulations
is attached hereto as Exhibit D and made a part hereof. Tenant agrees not to
commit or allow any waste to be committed on any portion of the Premises, and
at the termination of this Lease to deliver up the Premises to Landlord in
accordance with Article XXXV hereof.
V. RENT.
A. Tenant covenants and agrees to pay to Landlord during the Lease
Term, without any setoff or deduction whatsoever, the full amount of all Base
Rental payments, and any adjustments thereof, due in accordance with the
rental schedule set forth in Exhibit B-1 hereof (the "Base Rental"), the full
amount of all payments of Additional Base Rental due in accordance with
Exhibit B-2 hereof and the full amount of all parking charges, if any, due in
accordance with this Lease (the "Additional Base Rental") and all such other
sums of money as shall become due under this Lease (including, without
limitation, any charges for replacement of non-building standard electric
lamps and ballasts and any other services, goods or materials furnished by
Landlord at Tenant's request), all of which hereinafter may be collectively
called "Rent." Except as otherwise provided herein, the Base Rental and
Additional Base Rental for each calendar year or portion thereof during the
Lease Term, shall be due and payable in advance in equal monthly installments
on the first day of each calendar month during the Lease Term and any
extensions or renewals hereof, and Tenant hereby agrees to pay such Base
Rental and Additional Base Rental to Landlord without demand, provided that
no Additional Base Rental shall be due during the 1993 calendar year. If the
Lease Term commences on a day other than the first day of a month or
terminates on a day other than the last day of a month, then the installments
of Base Rental and Additional Base Rental for such month or months shall be
prorated, based on the number of days in such month. All such payments shall
be by a good and sufficient check. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the correct amount of Rent due
under this Lease shall be deemed to be other than a payment on account of the
earliest Rent due hereunder, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance or pursue any other available
remedy. The acceptance by Landlord of any Rent on a date after the due date
of such payment shall not be construed
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to be a waiver of Landlord's right to declare a default for any other late
payment. Tenant's covenant to pay Rent shall be independent of every other
covenant set forth in this Lease.
B. All Rent not paid within five (5) days after due and payable shall
bear interest from the date due until paid at the lesser of: 1. eighteen
percent (18%) per annum; or 2. the Maximum Rate. In addition, if Tenant fails
to pay any installment of Base Rental, Additional Base Rental or any other
item of Rent when due and payable hereunder and such failure continues for
ten (10) days after notice from Landlord, a service fee equal to three
percent (3%) of such unpaid amount will be due and payable immediately by
Tenant to Landlord, provided that Tenant shall not be required to pay a
service fee with respect to the first two late payments in any calendar year.
VI. SECURITY DEPOSIT. INTENTIONALLY OMITTED
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Subject to the provisions of Article XI below, Landlord, as
part of Basic Costs, agrees to furnish Tenant the following services:
1. Cold water at those points of supply provided for
general use of tenants in the Building, central heat and air
conditioning in season in accordance with the specifications attached
hereto as Exhibit G, or as required by governmental authority; provided,
however, heating and air conditioning service at times other than Normal
Business Hours for the Building shall be available to Tenant, on a per
floor basis, by means of a Electronic Security Card Key system, based on
a two hour minimum at the initial rate of $30.00 per hour. Such $30.00
per hour rate shall be subject to rate adjustments from time to time in
direct proportion to T.U. Electric (or such other utility company
supplying electricity to the Building) rate adjustments to the Building.
Tenant shall pay Landlord, upon demand as additional rent, the entire
cost of additional service as such costs are determined by Landlord from
time to time.
2. Routine maintenance and electric lighting service for
all Common Areas of the Building in the manner and to the extent deemed
by Landlord to be standard for buildings of similar class, size, age and
location.
3. Janitor service on Business Days in accordance with
the specifications attached hereto as Exhibit H, or such other
comparable specifications as Landlord may specify; provided, however, if
Tenant's use, floor covering or other improvements require special
services, Tenant shall, at Landlord's option, either (i) retain its own
contractors (which contractor shall be subject to Landlord's reasonable
approval) to do such work or, (ii) pay the additional cost reasonably
attributable thereto as additional Rent upon presentation of statements
therefor by Landlord. Landlord shall clean and maintain the entrance
lobby and all public areas of the Building and Parking Garage in a
manner suitable for first class office buildings in Dallas, Texas.
4. Elevator service in common with other tenants of the
Building for ingress and egress to and from the floor of the Premises
during Normal Business Hours.
5. Clean the exterior windows of the Premises at least
twice a year.
B. Except as otherwise expressly provided herein, the failure by
Landlord to any extent to furnish, or the interruption or termination of
these services in whole or in part, resulting from adherence to laws,
regulations and administrative orders, wear, use, repairs, improvements,
alterations, Force Majeure (as hereinafter defined) or any causes beyond the
reasonable control of Landlord shall not render Landlord liable in any
respect nor be construed as an eviction of Tenant, nor give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement hereof. Should any of the equipment or machinery used
in the provision of such services for any cause cease to function properly,
Landlord shall use reasonable diligence to repair such equipment or
machinery, but except as otherwise expressly provided herein, Tenant shall
have no claim for offset or abatement of Rent or damages on account of an
interruption in service or resulting therefrom. Landlord's entire obligation
with respect to the repair and maintenance of the Premises are set forth
above. Notwithstanding anything to the contrary contained in this Section
VII.B. If (i) Landlord ceases to furnish any service in the Building, and
Tenant notifies Landlord of such cessation in writing (the "Interruption
Notice"), (ii) such cessation does not arise as a result of an act or
omission of Tenant, (iii) such cessation is not caused by a fire or other
casualty (in which case Article XIX shall control), (iv) the repair or
restoration of such service is reasonably within the control of Landlord, and
(v) as a result of such cessation, the Premises or a material portion
thereof, is
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rendered untenantable (meaning that Tenant is unable to use the Premises in
the normal course of its business) and Tenant in fact ceases to use the
Premises, or material portion thereof, then, Tenant's sole remedy for such
cessation shall be as follows: on the first (1st) business day following the
later to occur of the date the Premises (or material portion thereof) becomes
untenantable, the date Tenant ceases to use such space and the date Tenant
provides Landlord with an Interruption Notice, the Base Rental and Additional
Base Rental payable hereunder shall be abated on a per diem basis based upon
the percentage of the Premises so rendered untenantable and not used by
Tenant, and such abatement shall continue until the date the Premises become
tenantable again.
C. The Building will include a security system restricting access after
normal business hours to the Building to only those tenants of the Building
using magnetic coded cards and restricting access via the elevators to
Tenant's exclusive floors within the Building to only those persons using
magnetic coded cards issued to persons authorized by Tenant. Magnetic coded
entry cards shall be issued to Tenant's employees without charge to Tenant or
its employees; however, Landlord may charge to Tenant the reasonable cost of
reissuing replacements for lost or damaged cards. Landlord shall furnish to
Tenant monthly (unless sooner requested in the event of a breach of
security), at Landlord's actual cost, if any, a computer printout of the log
showing by card numbers the date and time of entry by persons to the Leased
Premises during those hours when access to the Premises is restricted.
Notwithstanding anything herein to the contrary, Tenant expressly
acknowledges that Landlord shall not be deemed to have warranted the
efficiency of any such security personnel, service, procedures or equipment
and Landlord shall not be liable in any manner for the failure of any such
security personnel, services, procedures or equipment to prevent or control,
or apprehend any one suspected of personal injury or property damage in, on
or around the Property. Upon receipt of notice from Tenant, with respect to a
malfunction of the security system, Landlord, as part of Basic Costs, shall
promptly take whatever action is reasonably necessary to correct such
malfunction in the security system.
VIII. LEASEHOLD IMPROVEMENTS.
A. Except as otherwise specifically provided elsewhere in this Lease or
in the Work Letter Agreement, if any, attached hereto as Exhibit C and
incorporated herein, all installations and improvements now or hereafter
placed on or in the Premises shall be for Tenant's account and at Tenant's
cost, which cost shall be payable by Tenant to Landlord upon demand as
additional Rent.
B. Any and all alterations, additions and improvements to the Premises,
all attached furniture, equipment and non-trade fixtures (collectively,
"Leasehold Improvements") shall be owned and insured by Landlord and shall
remain upon the Premises, all without compensation, allowance or credit to
Tenant. Any unattached and movable equipment or furniture, trade fixtures or
other personalty of Tenant ("Tenant's Property") shall be owned and insured
by Tenant. Tenant shall be entitled to remove any Tenant's Property during
normal business hours or after normal business hours, at Tenant's discretion,
provided that Tenant complies with all of Landlord's reasonable rules and
regulations with respect to the moving of Tenant's Property and, provided
further, that Tenant's moving shall not disrupt the normal business activity
of the Building. Notwithstanding anything herein to the contrary, Landlord
may require Tenant to remove the computer room floor and any other property
and equipment directly relating to the installation of a computer room in the
Premises, including, without limitation, any supplemental air conditioning
units, computer cabling throughout the Premises and any copper piping
installed to provide condenser water to Tenant's supplemental air
conditioning unit (the "Required Removables") at Tenant's sole cost. In the
event that Landlord so elects, Tenant shall remove such Required Removables
on or before the expiration or earlier termination of this Lease and repair
any damage caused by Such removal. If Tenant fails to remove the Required
Removables after Landlord's request therefor, Landlord may remove, store or
dispose of the Required Removables at Tenant's cost, and repair any damage
caused by such removal and Tenant shall pay Landlord as additional Rent
hereunder, on demand, all such costs. Except as set forth above, Tenant shall
not be required to remove any of the Landlord Work from the Premises. With
respect to any additions, alterations and improvements installed in the
Premises by Tenant subsequent to the performance of Landlord Work, Tenant may
request in writing at the time it submits its plans and specifications for an
alteration, addition or improvement, that Landlord advise Tenant whether
Landlord will require Tenant to remove, at the termination of this Lease or
Tenant's right to possession hereunder, such alteration, addition or
improvement or any particular portion thereof and Landlord shall advise
Tenant within twenty (20) days after receipt of Tenant's request as to
whether Landlord will require removal; provided, however, Landlord shall have
the right to require Tenant to remove any vault, stairway or computer room
alterations installed in the Premises, regardless of whether Landlord timely
notified Tenant that it would require such removal. Landlord shall not
require Tenant to remove any usual office
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improvements such as gypsum board, partitions, ceiling grids and tiles,
fluorescent lighting panels, building standard doors and carpeting.
IX. GRAPHICS. Tenant's original building standard signage for the
Premises and the two (2) directories located in the lobby of the Building
will be included as part of Landlord's Work pursuant to Exhibit C to this
Lease. Thereafter, Landlord shall provide and install, at Tenant's cost, all
letters or numerals on the exterior of the Premises; all such letters and
numerals shall be in the standard graphics for the Building and no others
shall be used or permitted on the Premises without Landlord's prior written
consent.
X. REPAIRS AND ALTERATIONS.
A. Tenant shall, at Tenant's own cost and expense, keep the
Premises in good condition and repair, except to the extent such obligations
are imposed upon Landlord pursuant to Section X.C. below and except for
casualty damage and reasonable wear and tear. Such repairs shall restore the
Premises to as good a condition as it was in prior to such damage and shall
be effected in compliance with the reasonable directions of Landlord. If
Tenant fails to make such repairs to the Premises promptly, Landlord may, at
its option, make such repairs, and Tenant shall pay the cost thereof to the
Landlord on demand as additional Rent.
B. Except with respect to the initial Landlord Work to be
performed pursuant to Exhibit C (the approval of which is hereby granted by
Landlord), Tenant shall not make or allow to be made any alterations,
additions or improvements to the Premises, nor install any vending machines
(other than the employee's lunch room), safes or other heavy property or
equipment within the Premises, nor place signs or window coverings on the
Premises which are visible from outside the Premises, without first obtaining
the written consent of Landlord in each such instance. Prior to commencing
any such work, Tenant must furnish Landlord with plans and specifications;
names and addresses of contractors; copies of contracts; necessary permits;
evidence of contractor's and subcontractor's insurance in accordance with
section XVI.B, hereof; and indemnification in form and amount satisfactory to
Landlord. All such improvements, alterations or additions shall be
installed in a good workmanlike manner using new materials. Upon completion,
Tenant shall furnish "as-built" plans, contractor's affidavits and full and
final waivers of lien and receipted bills covering all labor and materials.
All improvements, alterations and additions shall comply with all insurance
requirements, codes, ordinances, laws and regulations, including without
limitation, the Americans with Disabilities Act. Except with respect to the
initial Landlord Work, Tenant shall reimburse Landlord upon demand as
additional Rent for all reasonable and necessary sums expended by Landlord
for examination of the architectural, mechanical, electric and plumbing plans
for any alterations, additions or improvements and for the costs of repairing
any damage done to the Building caused by Tenant or Tenant's agents,
servants, employees, customers, licensees, or invitees. If Landlord so
requests, Tenant shall permit Landlord to supervise construction operations,
but no such supervision shall impose any liability upon Landlord. In the
event Landlord supervises such construction, Landlord shall be entitled to a
supervisory fee in the amount of five percent (5%) of the cost of such
construction, provided that Landlord shall not be entitled to receive a
supervision fee with respect to the initial Landlord Work and, provided
further, that Landlord shall only be entitled to receive a supervision fee if
the work being performed by Tenant involves the systems or structure of the
Building or otherwise reasonably requires supervision by Landlord. Landlord's
approval of Tenant's plans and specifications or supervision of any work
performed for or on behalf of Tenant shall not be deemed to be a
representation by Landlord that such plans and specifications comply with
applicable insurance requirements, building codes, ordinances, laws or
regulations.
C. Landlord, as part of Basic Costs, shall keep and maintain in
good repair and working order and make all repairs to and perform necessary
maintenance upon: 1) all structural elements of the Building within the
Premises, unless the need to make a structural alteration or repair results
from Tenant's particular manner of use of the Premises, Tenant's particular
design of the Premises, or any alterations, additions or improvements
performed by or on behalf of Tenant in the Premises; and 2) all mechanical
systems within the Premises, but only to the extent such have not been
installed by Tenant or its contractors; and 3) all elements of the Building
and the Premises necessary to provide the services described in Article VII,
but only to the extent such have not been installed by Tenant or its
contractors; and 4) the Building facilities common to all tenants including,
but not limited to, the ceilings, lighting, HVAC, plumbing, walls and floors
in the common areas. All repairs by Landlord shall be accomplished in a good
and workmanlike manner using new materials and in compliance with all
applicable laws of all controlling governmental authorities. Landlord will
use reasonable efforts to perform all repair and maintenance to the Premises
in such a manner as to limit, to the extent reasonably possible, any
interference to the operation of Tenant's business in the Premises, unless
emergency conditions exist that require immediate action. Notwithstanding
anything herein to the contrary, Tenant shall be responsible for the cost of
any alterations, repairs,
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changes and additions necessitated by the acts or omissions of Tenant,
Tenant's agents, employees and contractors.
XI. USE OF ELECTRICAL AND HVAC SERVICES BY TENANT.
A. All building standard electricity used by Tenant in the
Premises shall be paid for by Tenant through inclusion in Base Rental or Basic
Costs. If Landlord selects option (2) or (3), Tenant's calculation of Basic
Costs shall not include electricity used by other tenants of the Building.
Tenant's use of electrical and heating, ventilating and air conditioning
("HVAC") services furnished by Landlord shall not exceed, either in voltage,
rated capacity, use or overall load, that which Landlord deems to be standard
for the Building. In the event Tenant shall request that it be allowed to
consume electrical or HVAC services in excess of that deemed by Landlord to
be standard for the Building, Landlord may refuse to consent to such usage or
may consent upon such conditions as Landlord elects (including the
installation of utility service upgrades, submeters, air handlers or cooling
units), and all such additional usage (to the extent permitted by law),
installation and maintenance thereof shall be paid for by Tenant as
additional Rent. Landlord shall have the right to separately meter electrical
usage for the Premises at any time during the Lease Term or to use any other
method of measuring electrical usage that Landlord, in its reasonable
judgment, deems to be appropriate.
B. If Landlord generates or Distributes electric current for the
Building, Tenant shall obtain all current from Landlord and pay as additional
Rent Landlord's charges therefor, provided, however, that if the cost of
providing electricity is not included in Base Rental or Basic Costs, the
charges to Tenant shall not exceed the rate that would be charged Tenant if
billed directly by the local utility for the same services. Landlord may
cease to furnish electricity upon 30 days prior written notice, provided
within the 30 days Landlord connects with another source of electric supply.
XII. ENTRY BY LANDLORD. After reasonable notice to Tenant (except in
the event of an emergency), Landlord and its agents or representatives shall
have the right to enter the Premises to inspect the same, or to show the
Premises to prospective purchasers, mortgagees, tenants or insurers, or to
clean or make repairs, alterations or additions thereto, including any work
that Landlord deems necessary for the safety, protection or preservation of
the Building or any occupants thereof, or to facilitate repairs, alterations
or additions to the Building or any other tenants premises. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close the Premises to perform repairs,
alterations or additions in the Premises, provided that Landlord shall use
reasonable efforts to perform all such work on weekends and after Normal
Business Hours. Entry by Landlord hereunder shall not constitute a
constructive eviction or entitle Tenant to any abatement or reduction of Rent
by reason thereof.
XIII. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not assign, sublease, transfer or encumber this
Lease or any interest therein or grant any license, concession or other right
of occupancy of the Premises or any portion thereof or otherwise permit the
use of the Premises or any portion thereof by any party other than Tenant
(any of which events is hereinafter called a "Transfer") without the prior
written consent of Landlord, which consent shall not be unreasonably withheld
with respect to any proposed assignment or subletting. Landlord's consent
shall not be considered unreasonably withheld if: 1. the proposed
transferee's financial responsibility does not meet the same criteria
Landlord uses to select Building tenants; 2. the proposed transferee's
business is not suitable for the Building considering the business of the
other tenants and the Building's prestige or would result in a violation of
an exclusive right granted to another tenant in the Building; 3. the proposed
use is different than the Permitted Use; 4. the proposed transferee is a
government agency or occupant of the Building; or 5. Tenant is in default.
Tenant acknowledges that the foregoing is not intended to be an exclusive
list of the reasons for which Landlord may reasonably withhold its consent to
a proposed Transfer. Any attempted Transfer in violation of the terms of this
Article shall, at Landlord's option, be void. Consent by Landlord to one or
more Transfers shall not operate as a waiver of Landlord's rights as to any
subsequent Transfers. In addition, Tenant shall not, without Landlord's
consent, such consent not to be unreasonably withheld, publicly offer or
advertise the Lease for Transfer in any media. In the event Tenant or anyone
acting on behalf of Tenant or with Tenant's knowledge violates the provisions
of the foregoing sentence, Landlord, in addition to its other remedies, shall
be entitled to seek injunctive relief preventing
7
such action, and Tenant shall be responsible for all costs incurred by
Landlord in connection therewith.
Notwithstanding anything to the contrary contained herein or in Section
XIII.D., Tenant may assign its entire Interest under this Lease or sublet the
Premises to a wholly owned corporation or controlled subsidiary or parent of
Tenant or to any successor to Tenant by purchase, merger, consolidation or
reorganization (hereinafter collectively referred to as "Corporate Transfer")
without the consent of Landlord, provided: (i) Tenant is not in default under
this Lease; (ii) if such proposed transferee is a successor to Tenant by
purchase, said proposed transferee shall acquire all or substantially all of
the stock or assets of Tenant's business or, if such proposed transferee is a
successor to Tenant by merger, consolidation or reorganization, the
continuing or surviving corporation shall own all or substantially all of the
assets of Tenant; (iii) with respect to a merger, consolidation or sale of
substantially all of the assets of Tenant, such proposed transferee shall
have a net worth which is at least equal to the greater of Tenant's net worth
at the date of this Lease or Tenant's net worth at the date of the Transfer;
(iv) such proposed transferee operates the business in the Premises for the
Permitted Use and no other purpose; and (v) in no event shall any Transfer
release or relieve Tenant from any of its obligations under this Lease.
Tenant shall give Landlord written notice at least thirty (30) days prior to
the effective date of such Corporate Transfer. As used herein, the terms
"controlled" or "subsidiary" shall mean a corporate entity wholly owned by
Tenant or at least fifty-one percent (51%) of whose voting stock is owned by
Tenant.
B. If Tenant requests Landlord's consent to a Transfer, Tenant shall
notify Landlord in writing at least 45 days prior to the effective date of
the proposed Transfer of the name of the proposed transferee and the nature
of the business of the proposed transferee, the term, use, rental rate and
all other material terms and conditions of the proposed Transfer, including;
without limitation, evidence satisfactory to Landlord that the proposed
transferee is financially responsible. Notwithstanding the provisions of
Section XIII.A. above, Landlord may, during said 45-day period, 1. consent to
or refuse to consent to such Transfer in writing; or 2. negotiate directly
with the proposed transferee and (in the event Landlord is able to reach
agreement with such proposed transferee) upon execution of a lease with such
transferee, terminate this Lease (in part or in whole, as appropriate) upon
thirty (30) days' notice; or 3. cancel and terminate this Lease, in whole or
in part as appropriate, upon 30 days notice. In the event Landlord consents
to any such Transfer, the Transfer shall be in a form approved by Landlord,
and Tenant shall bear all reasonable costs and expenses incurred by Landlord
in connection with the review and approval of such documentation.
C. Fifty percent (50%) of all cash or other proceeds (the "Transfer
Consideration") of any Transfer of Tenant's interest in this Lease and/or the
Premises, whether consented to by Landlord or not, shall be paid to Landlord
and Tenant hereby assigns fifty percent (50%) of all rights it might have or
ever acquire in any such proceeds to Landlord. In addition to the Rent
hereunder, Tenant hereby covenants and agrees to pay to Landlord fifty
percent (50%) of all rent and other consideration which it receives which is
in excess of the Rent payable hereunder within ten (10) days following
receipt thereof by Tenant. In addition to any other rights Landlord may
have, Landlord shall have the right to contact any transferee and require
that all payments made pursuant to the Transfer shall be made directly to
Landlord.
D. If Tenant is a corporation and if at any time during the Lease
Term the person or persons who own the voting shares at the time of the
execution of this Lease cease for any reason, including but not limited to
merger, consolidation or other reorganization involving another corporation,
to own a majority of such shares, or if Tenant is a partnership and if at any
time during the Lease Term the general partner or partners who own the
general partnership interests in the partnership at the time of the execution
of this Lease, cease for any reason to own a majority of such interests
(except as the result of transfers by gift, bequest or inheritance to or for
the benefit of members of the immediate family of such original
shareholder(s) or partner(s)), such an event shall be deemed to be a
Transfer. The preceding sentence shall not apply whenever Tenant is a
corporation the outstanding stock of which is listed on a recognized security
exchange, or if at least eighty per cent (80%) of its voting stock is owned
by another corporation, the voting stock of which is so listed.
E. Any Transfer consented to by Landlord in accordance with this
Article XIII shall be only for the Permitted Use and for no other purpose,
and in no event shall any Transfer release or relieve Tenant or any
Guarantors from any obligations under this Lease.
8
XIV. LIENS. Tenant will not permit any mechanic's liens or other liens
to be placed upon the Promises or Tenant's leasehold interest therein, the
Building, of the real estate associated therewith. Landlord's title to the
Building and Property is and always shall be paramount to the interest of
Tenant, and nothing herein contained shall empower Tenant to do any act that
can, shall or may encumber Landlord's title. In the event any such lien does
attach, Tenant shall, within 5 days of notice of the filing of said lien,
either discharge or bond over such lien to the satisfaction of Landlord and
Landlord's Mortgagee (as hereinafter defined), and in such a manner as to
stay the enforcement or foreclosure of such lien. If Tenant shall fail to so
discharge or bond over such lien, then, in addition to any other right or
remedy of Landlord, Landlord may, but shall not be obligated to, discharge
the same. Any amount paid by Landlord for any of the aforesaid purposes,
including reasonable attorneys fees (if and to the extent permitted by law)
shall, be paid by Tenant to Landlord on demand as additional Rent.
Notwithstanding the foregoing, if any such lien affects only Tenant's
leasehold interest and does not affect Landlord's interest in the Premises,
the Building or the real estate associated herewith, Tenant shall have the
right, after written notice to Landlord, to contest in good faith and with
all due diligence any such mechanic's lien. In such event, Tenant shall not
be required to pay any claim secured by such mechanic's lien prior to the
rendering of a judgment against Tenant with respect to such lion, provided
that Tenant shall comply with the provisions of all applicable laws with
respect to the contesting of such lien, including, without limitation, the
posting of any required bonds. The foregoing shall not imply any right on
the part of Tenant to affect Landlord's interest in the Leased Premises or
the Building.
XV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except for losses, liabilities, obligations, damages,
penalties, claims, costs, charges and expenses resulting from the negligence
of Landlord and any Landlord Related Parties (hereinafter defined) and
subject to the provisions of Article XVII hereof, Tenant shall indemnify,
defend and hold Landlord, its principals, beneficiaries, partners, officers,
directors, agents, employees and any Mortgagee(s) (collectively the "Landlord
Related Parties") harmless against and from all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses, including, without
limitation, reasonable architects' and attorneys' fees (if and to the extent
permitted by law), which may be imposed upon, incurred by, or asserted
against Landlord or any of the Landlord Related Parties and arising, directly
or indirectly, out of or in connection with the use, occupancy or maintenance
of the Premises by, through or under Tenant and (without limiting the
generality of the foregoing) any of the following: 1. any work or thing done
in, on or about the Premises or any part thereof by Tenant or any of its
transferees, agents, servants, contractors, employees, customers, licensees
or invitees; 2. any use, non-use, possession, occupation, condition,
operation or maintenance of the Premises or any part thereof; 3. any act or
omission of Tenant or any of its transferees, agents, servants, contractors,
employees, customers, licensees or invitees, regardless of whether such act
or omission occurred within the Premises; 4. any injury or damage to any
person or property occurring in, on or about the Premises or any part
thereof; or 5. any failure on the part of Tenant to perform or comply with
any of the covenants, agreements, terms or conditions contained in this Lease
with which Tenant must comply or perform. In case any action or proceeding
is brought against Landlord or any of the Landlord Related Parties by reason
of any of the foregoing, Tenant shall, at Tenant's sole cost and expense,
resist and defend such action or proceeding with counsel approved by Landlord
or, at Landlord's option, reimburse Landlord for the reasonable and necessary
cost of any counsel retained directly by Landlord to defend and resist such
action or proceeding.
B. Unless caused by the negligence or willful misconduct of
Landlord or any Landlord Related Parties, Landlord and the Landlord Related
Parties shall not be liable for, and Tenant waives, all claims for loss or
damage to Tenant's business or damage to person or property. sustained by
Tenant or any person claiming by, through or under Tenant (including Tenant's
employees) resulting from any accident or occurrence in, on or about the
Premises, the Building or the Property, including, without limitation, claims
for loss, theft or damage resulting from: 1. the Premises, Building, or
Property, or any equipment or appurtenances becoming out of repair; 2. wind
or weather: 3. any defect in or failure to operate, for whatever reason, any
sprinkler, heating or air-conditioning equipment, electric wiring, gas, water
or steam pipes; 4. broken glass; 5. the backing up of any sewer pipe or
downspout; 6. the bursting, leaking or running of any tank, water closet,
drain or other pipe; 7, the escape of steam or water; 8. water, snow or ice
being upon or coming through the roof, skylight, stairs, doorways, windows,
walks or any other place upon or near the Building; e. the falling of any
fixture, plaster, tile or other material; 10. any act, omission or negligence
of other tenants, licensees or any other persons or occupants of the Building
or of adjoining or contiguous buildings, of owners of adjacent or contiguous
property or the public, or by construction of any private, public or
quasi-public work; or 11. any other cause of any nature except where such
loss or damage is due to Landlord's willful failure to make repairs required
to be made pursuant to other provisions of this Lease,
9
after the expiration of a reasonable time after written notice to Landlord of
the need for such repairs. To the maximum extent permitted by law, Tenant
agrees to use and occupy the Premises, and to use such other portions of the
Building as Tenant is herein given the right to use, at Tenant's own risk.
C. Except for losses, liabilities, obligations, damages, penalties;
claims, costs, charges and expenses resulting from the negligence of Tenant
and/or its agents, employees or contractors, and subject to the provisions of
Article XVII hereof, Landlord shall indemnify, defend and hold Tenant, its
principals, agents and employees (collectively the "Tenant Related Parties")
harmless from and against all liabilities, obligations, damages (other than
consequential damages), penalties, claims, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees, which may be
imposed upon, incurred by, or asserted against Tenant or any of the Tenant
Related Parties and arising, directly or indirectly, out of or in connection
with any of the following:(i) any work or thing done in, on or about the
Building or any part thereof by Landlord or any of its agents, contractors or
employees; (ii) any use, non-use, possession, occupation, condition,
operation, maintenance or management of the Building or any part thereof by
Landlord or any of its agents, contractors or employees (iii) any act or
omission of Landlord or any of its agents, contractors or employees; and (iv)
any injury. or damage to any person or property occurring in, on or about the
Building or any part thereof; provided, however, that in each case such
liability, obligation, damage, penalty, claim, cost, charge or expense
results from the negligence of Landlord and/or its agents, employees or
contractors.
XVI. TENANT'S INSURANCE.
A. At all times commencing on and after the earlier of the
Commencement Date and the date Tenant or its agents, employees or contractors
enters the Premises for any purpose, Tenant shall carry and maintain, at its
sole coat and expense:
1. Commercial General Liability insurance with a Broad Form
General Liability Endorsement applicable to the Premises and its
appurtenances providing, on an occurrence basis, a minimum combined
single Limit of Two Million Dollars ($2,000,000).
2. All Risks of Physical Loss insurance written at
replacement cost value and with a replacement cost endorsement covering
all of Tenant's Property in the Premises.
3. Workers Compensation insurance as required by the state
in which the Premises is located and in amounts as may be required by
applicable statute, and Employers Liability Coverage of One Million
Dollars ($1,000.000) per occurrence.
B. Except for items for which Landlord is responsible under the
Work Letter Agreement, before any repairs, alterations, additions,
improvements, or construction are undertaken by or on behalf of Tenant,
Tenant shall carry and maintain, at its expense, or Tenant shall require any
contractor performing work on the Premises to carry and maintain, at no
expense to Landlord in addition to worker's compensation insurance as
required by the jurisdiction in which the Building is located, All Risk
Builder's Risk insurance in the amount of the replacement cost of any
alterations, additions or improvements (or such other amount reasonably
required by Landlord) and Commercial General Liability Insurance (including,
without limitation, Contractor's Liability coverage, Contractual Liability
coverage, Completed. Operations coverage, a Broad Form Property Damage
coverage and Contractor's Protective liability) written on an occurrence
basis with a minimum combined Single limit of Two Million Dollars
($2,000,000); such limit may be accomplished by means of an umbrella policy.
C. Any company writing any insurance which Tenant is required to
maintain or cause to be maintained pursuant to the terms of this Lease (all
such insurance as well as any other insurance pertaining to the Premises or
the operation of Tenant's business therein being referred to as "Tenant's
Insurance"), as well as the form of such insurance, shall at all times be
subject to Landlord's reasonable approval, and each such insurance company
shall have an A.M. Best rating of "A7" or better and shall be licensed and
qualified to do business in the state in which the Premises are located. All
policies evidencing Tenant's Insurance (except for Workers Compensation)
shall specify Tenant and the "owner(s) of the Building and its (or their)
respective principals, beneficiaries, partners, officers, Directors,
employees, agents and mortgagee(s)" (and any other designees of Landlord as
the interest of such designees shall appear) as additional insureds.
Provided that the coverage afforded Landlord and any designees of Landlord
shall not be reduced or otherwise adversely affected, all of Tenant's
insurance may be carried under a blanket policy covering the Premises and any
other of Tenant's locations. All policies of Tenant's Insurance shall
contain endorsements that the. Insurer(s) will give to Landlord and its
designees at least thirty (30) days' advance written notice
10
of any change, cancellation, termination or lapse of said insurance. Tenant
shall be solely responsible for payment of premiums for all of Tenant's
Insurance. Tenant shall deliver to Landlord at least fifteen (15) days prior
to the time Tenant's Insurance is first required to' be carried by Tenant,
and upon renewals at least fifteen (15) days prior to the expiration of any
such insurance coverage, a certificate of insurance of all policies procured
by Tenant in compliance with its obligations under this Lease. The limits of
Tenant's Insurance shall in no event limit Tenant's liability under this
Lease.
D. Tenant shall not do or fail to do anything in, upon or about the
Premises which will; 1. violate the terms of any of Landlord's Insurance
policies; 2. prevent Landlord from obtaining policies of insurance acceptable
to Landlord or any Mortgagees; or 3. result in an increase in the rate of any
insurance on the Premises, the Building, any other property of Landlord or of
others within the Building. In the event of the occurrence of any of the
events set forth in this Section, Tenant shall pay Landlord upon demand, as
additional Rent, the cost of the amount of any increase in any such insurance
premium. If Tenant jails to obtain the insurance coverage required by this
Lease, Landlord may, at its option, obtain such insurance for Tenant, and
Tenant shall pay, as additional Rent, the cost of all premiums thereon and
all of Landlord's' costs associated therewith. Notwithstanding the foregoing,
so long as Tenant complies with all of the terms and conditions of this
Lease, the use of the Premises for the Permitted Use will not violate any
insurance maintained by Landlord, prevent Landlord from obtaining insurance,
or result in an increase in the cost of insurance coverage for which Tenant
will be responsible (other than through inclusion in Basic Costs).
XVII. SUBROGATION. Notwithstanding anything set forth in this Lease to
the contrary, Landlord and Tenant do hereby waive any and all right of
recovery, claim, action or cause of action against the other, their
respective principals, beneficiaries, partners, officers, directors, agents,
and employees, and, with respect to Landlord, its Mortgagee[s], for any loss
or damage that may occur to Landlord or Tenant or any party claiming by,
through or under Landlord or Tenant, as the case may be, with respect to
their respective property, the Building, the Property or the Premises or any
addition or improvements thereto, or any contents therein, by reason of fire,
the elements or any other cause, regardless of cause or origin, including the
negligence of Landlord or Tenant, or their respective principals,
beneficiaries, partners, officers, directors, agents and employees and, with
respect to Landlord, its Mortgagee(s), which loss or damage is (or would have
been, had the insurance required by this Lease been carried) covered by
insurance. Since this mutual waiver will preclude the assignment of any such
claim by subrogation (or otherwise) to an insurance company (or any other
person), Landlord and Tenant each agree to give each insurance company which
has issued, or in the future may issue, its policies of fire, extended
coverage or material damage insurance, written notice of the terms of this
mutual waiver, and to have such insurance policies properly endorsed, if
necessary, to prevent the invalidation of any of the coverage provided by
such insurance policies by reason of such mutual waiver. For the purpose of
the foregoing waiver, the amount of any deductible applicable to any loss or
damage shall be deemed covered by, and recoverable by the insured under the
insurance policy to which such deductible relates. In the event that Tenant
is permitted to and self-insures any risk which would have been covered by
the insurance required to be carried by Tenant pursuant to Article XVI of the
Lease, or if Tenant fails to carry any insurance required to be carried by
Tenant pursuant to Article XVI of this Lease, then all loss or damage to
Tenant, its leasehold interest, its business, its property, the Premises of
any additions or improvements thereto or contents thereof shall be deemed
covered by and recoverable by Tenant under valid and collectible policies of
insurance.
XVIII. LANDLORD'S INSURANCE. Landlord shall maintain full replacement
cost, property insurance on the Building. The cost of such insurance shall be
included as a part of the Basic Costs, and payments for losses thereunder
shall be made solely to Landlord or the Mortgagees' of Landlord as their
interests shall appear. Landlord may, at its option, elect to self insure.
XIX. CASUALTY DAMAGE. If the Premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Building shall be so damaged that, based on
the reasonable estimate of Landlord's general contractor, it will take longer
than two hundred twenty-five (225 days to restore the Building to the
condition that existed prior to the fire or other casualty whether or not the
Premises shall have been damaged by such casualty) or in the event the
Premises have been damaged and there is less than two (2) years of the Lease
Term remaining on the date of such casualty or in the event any Mortgagee
should requite that the insurance proceeds payable as a result of a casualty
be applied to the payment of the mortgage debt or in the event of any
material uninsured loss to the Building, Landlord may, at its option,
terminate this Lease by notifying Tenant in writing of such termination with
in ninety (90) days after the date of such casualty. Such termination shall
be effective as of the date of fire or casualty, with respect to any portion
of the Premises that was rendered untenantable, and the date specified in
Landlord's notice,
11
with respect to any portion of the Premises that remained tenantable. If
Landlord does not elect to terminate this Lease, Landlord shall commence and
proceed with reasonable diligence to restore the Building (provided that
Landlord shall not be required to restore any unleased premises in the
Building) and the Leasehold improvements (but excluding any improvements,
alterations or additions made by Tenant in violation of this Lease) located
within the Premises if any, which Landlord has insured to substantially the
same condition they were in immediately prior to the happening of the
casualty. Notwithstanding anything in this Article XIX to the contrary, if
all or any portion of the Premises shall be made untenantable by a fire or
other casualty, Landlord shall with reasonable promptness, cause an architect
or general contractor selected by Landlord to estimate the amount of time
required to substantially complete repair and restoration of the Premises and
make the Premises tenantable again, using standard working methods (the
"Completion Estimate"). If the Completion Estimate indicates that the
Premises cannot be made tenantable within two hundred twenty-five (225) days
from the "date" the repair and restoration is started, either party shall
have the right to terminate this Lease by giving written notice to the other
of such election within ten (10) days after its receipt of, the Completion
Estimate. If the Completion Estimate indicates that the Premises can be made
tenantable within two hundred twenty-five (225) days from the date the repair
and restoration is started and Landlord has not otherwise exercised its'
right to terminate the Lease pursuant to the terms hereof, or if the
Completion Estimate indicates that the Premises cannot be made tenantable
within two hundred twenty-five (225) days but neither party terminates this
Lease pursuant to this Article XIX, Landlord shall proceed with reasonable
promptness to repair and restore the Premises, Notwithstanding the foregoing,
if Landlord does not substantially complete the repair and restoration the
Premises within two (2) months after the expiration of the estimated period
of time set forth in the Completion Estimate, which period shall be extended
to the extent of any Reconstruction Delays, then Tenant may terminate this
Lease by written notice to Landlord within fifteen (15) days after the
expiration of such period, as the same may be extended. For purposes of this
Lease, the term "Reconstruction Delays" shall mean: (i) any delays caused by
Tenant, and (ii) any delays caused by events of Force Majeure.
Notwithstanding the foregoing, Landlord's obligation to restore the Building,
and the Leasehold improvements, if any, shall not require Landlord to expend
for such repair and restoration work more than the insurance proceeds
actually received by the Landlord as a result of the casualty. When repairs
to the Premises have been completed by Landlord, Tenant shall complete the
restoration or replacement of all Tenant's Property necessary to permit
Tenant's reoccupancy of the Premises, and Tenant shall present Landlord
with evidence satisfactory to Landlord of Tenant's ability to pay such costs
prior to Landlord's commencement of repair and restoration of the Premises.
Landlord shall not be liable, for any inconvenience or annoyance to Tenant or
injury to the business of Tenant resulting in any way from such damage or the
repair thereof, except that Landlord shall allow Tenant a fair diminution of
Rent on a per diem basis during the time and to the extent the Premises are
untenantable. Notwithstanding the, foregoing, if the Premises or any other
portion of the Building is damaged by fire or other casualty resulting from
the fault or negligence of Tenant or any of Tenant's agents, employees, or
contractors, Tenant shall only be entitled to a diminution of Rent to the
extent that such Rent is reimbursed to Landlord through rental interruption
insurance maintained by Landlord. Landlord and Tenant hereby waive the
provisions of any law from time to time in effect during the Lease Term
relating to the effect upon leases of partial or total destruction of leased
property. Landlord and Tenant agree that their respective rights in the event
of any damage to or destruction of the Premises shall be those specifically
set forth herein.
XX. DEMOLITION. INTENTIONALLY OMITTED
XXI. CONDEMNATION. If 1. the whole or any substantial part of the
Premises or 2. any portion of the Building or Property which would leave the
remainder of the Building unsuitable for use as an office building comparable
to its use on the Commencement Date, shall be taken or condemned for any
public or quasi-public use under governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof, then
Landlord may, at its option, terminate this Lease effective as of the date
the physical taking of said Premises or said portion of the Building or
Property shall occur. In the event this Lease is not terminated, the Rentable
Area of the Building, the Rentable Area of the Premises and Tenant's Pro
Rata Share shall be appropriately adjusted. In addition, Rent for any
portion of the Premises so taken or condemned shall be abated during the
unexpired term of this Lease effective when the physical taking of said
portion of the Premises shall occur. All compensation awarded for any such
taking or condemnation, 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, except for any portions of such award or
proceeds which are specifically allocated by the condemning or purchasing
party to Tenant's relocation costs and\or for the taking of or damage to
trade fixtures of Tenant, which Tenant specifically reserves to itself.
12
PAGE 13 OMITTED
(hereinafter defined) and any deficiency that may arise by reason of any
reletting or failure to relet.
2. Enter upon and take possession of the Premises and expel or
remove Tenant or any other person who may be occupying said Premises, or
any part thereof, by force, if necessary, without having any civil or
criminal liability therefor and without terminating this Lease. Landlord
may (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 Lease Term and on such conditions (which may include
concessions, free rent and alterations of the Premises) and for such
uses as Landlord In its absolute discretion may determine, and Landlord
may collect and receive any rents payable by reason of such reletting.
Tenant agrees to pay Landlord on demand all Costs of Reletting and any
deficiency that may arise by reason of such reigning or failure to
relet. 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. 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 termination is given to Tenant.
3. Enter upon the Premises by force if necessary without
having any civil or criminal liability therefor, and do whatever Tenant
is obligated to do under the terms of this Lease, and Tenant agrees to
reimburse Landlord on demand for any expense which Landlord may incur in
thus affecting compliance with Tenant's obligations under this Lease
together with interest at the lesser of a per annum rate equal to: a.
the Maximum Rate, or b. the Prime Rate plus five percent (5%), and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by the negligence
of Landlord or otherwise.
4. In order to regain possession of the Premises and to deny
Tenant access thereto in any instance in which Landlord has terminated
this Lease or Tenant's right to possession, or to limit access to the
Premises in accordance with local law in the event of a default by
Tenant, Landlord or its agent may, at the expense and liability of the
Tenant, alter or change any or all locks or other security devices
controlling access to the Premises. Tenant shall not be entitled to
recover possession of the Premises, terminate this Lease, or recover any
actual, incidental, consequential, punitive, statutory or other damages
or award of attorneys' fees, by reason of Landlord's alteration or
change of any lock or other security device and the resulting exclusion
from the Premises of the Tenant or Tenant's agents, servants, employees,
customers, licensees, invitees or any other persons from the Premises.
Landlord may, without notice, remove and either dispose of or store, at
Tenant's expense, any property belonging to Tenant that remains in the
Premises after Landlord has regained possession thereof.
5. Terminate this Lease, in which event, Tenant shall
immediately surrender the Premises to Landlord and pay to Landlord the
sum of: a. all Rent accrued hereunder through the date of termination,
and, upon Landlord's determination thereof, b. an amount equal to (i)
the total Rent that Tenant would have been required to pay for the
remainder of the Lease Term Discounted to present value at the prime
rate then in effect, minus (ii) the then present fair rental value of
the Premises for the remainder of the Lease Term, similarly discounted,
after deducting all anticipated Costs of Reletting, Landlord's
determination of such amount shall be conclusive and binding on Tenant,
and shall be deemed to have been made in good faith, subject only to
manifest error.
B. For purposes of this Lease, the term "Costs of Reletting" shall mean
all reasonable costs and expenses incurred by Landlord in connection with the
reletting of the Premises, including without limitation, Rent loss during the
period the Premises are vacant prior to reletting, the cost of cleaning,
renovation, repairs, decoration and alteration of the Premises for a now
tenant or tenants, advertisement, marketing brokerage and legal fees (if and
to the extent permitted by law), the cost of protecting or caring for the
Premises while vacant, the cost of removing and storing any property located
on the Premises, any increase in insurance premiums caused by the vacancy of
the Premises and any other reasonable out-of-pocket expenses incurred by
Landlord.
C. Except as otherwise herein provided, no repossession or re-entering
on the Premises or any part thereof pursuant to Article XXIII hereof or
otherwise shall relieve Tenant or any Guarantor of its liabilities and
obligations hereunder, all of which shall survive such repossession or
re-entering. Notwithstanding any such repossession or re-entering by reason
14
of the occurrence of an event of default, Tenant will pay to Landlord the
Rent required to be paid by Tenant pursuant to this Lease.
D. 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 by agreement, applicable
law or in equity. In addition to other remedies provided in this Lease,
Landlord shall be entitled, to the extent permitted by applicable law, to
injunctive relief, or to a decree compelling performance of any of the
covenants, agreements, conditions or provisions of this Lease, or to any
other remedy allowed to Landlord at law or in equity. Forbearance by Landlord
to enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of such
default.
E. This Article XXIII shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the unenforceability of
any portion thereof shall not thereby render unenforceable any other portion.
XXIV. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR
LANDLORD HEREUNDER) TO TENANT SHALL BE LIMITED TO THE INTEREST OF LANDLORD IN
THE BUILDING, AND TENANT AGREES TO LOOK SOLELY TO LANDLORD'S INTEREST IN THE
BUILDING FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST THE LANDLORD, IT
BEING INTENDED THAT LANDLORD SHALL NOT BE PERSONALLY LIABLE FOR ANY JUDGMENT
OR DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT
FOR AN ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL
MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST
LIENS ON THE PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME TO
CURE SUCH ALLEGED DEFAULT BY LANDLORD. IN ADDITION, TENANT ACKNOWLEDGES THAT
EQUITY ASSETS MANAGEMENT, INC, IS ACTING SOLELY IN ITS CAPACITY AS AGENT FOR
LANDLORD AND SHALL NOT BE LIABLE FOR ANY OBLIGATIONS, LIABILITIES, LOSSES OR
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, ALL OF WHICH ARE
EXPRESSLY WAIVED BY TENANT.
XXV. NO WAIVER. Failure of Landlord to declare any default immediately
upon its occurrence, or delay in taking any action in connection with an
event of default shall not constitute a waiver of such default, nor shall it
constitute an estoppel against Landlord, but Landlord shall have the right to
declare the default at any time and take such action as is lawful or
authorized under this Lease. Failure by Landlord to enforce its rights with
respect to any one default shall not constitute a waiver of its rights with
respect to any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXVI. EVENT OF BANKRUPTCY. In addition to, and in no way limiting the
other remedies set forth herein, Landlord and Tenant agree that if Tenant
ever becomes the subject of a voluntary or involuntary bankruptcy,
reorganization, composition, or other similar type proceeding under the
federal bankruptcy laws, as now enacted or hereinafter amended, then;
A. "Adequate protection" of Landlord's interest in the Premises
pursuant to the provisions of Section 361 and, 363 (or their successor
sections) of the Bankruptcy Code, 11 U.S.C. Section 101 et seq., (such
Bankruptcy Code as amended from time to time being herein referred to as the
"Bankruptcy Code"), prior to assumption and/or assignment of the Lease by
Tenant shall include, but not be limited to all (or any part) of the
following:
1. the continued payment by Tenant of the Base Rental and all
other Rent due and owing hereunder and the performance of all other
covenants and obligations hereunder by Tenant;
2. the hiring of security guards to protect the Premises if
Tenant abandons and/or ceases operations; such obligation of Tenant only
to be effective so long as Tenant remains in possession and control of
the Premises to the exclusion of Landlord;
B. "Adequate assurance of future performance" by Tenant and/or any
assignee, of Tenant pursuant to Bankruptcy Code Section 368 will include (but
not be Limited to) payment of an additional/new Security Deposit in the amount
of three (3) times the then-current monthly Base Rental payable hereunder.
C. Any person or entity to which this Lease is assigned pursuant to
the provisions of the Bankruptcy Code, shall be deemed without further act or
deed to have assumed all of the
15
obligations of Tenant arising under this Lease on and after the effective
date of such assignment. Any such assignee shall, upon demand by Landlord,
execute and deliver to Landlord an instrument confirming such assumption of
liability.
D. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of the Landlord under this Lease,
whether or not expressly denominated as "Rent", shall constitute "rent" for
the purposes of Section 502(b) (6) of the Bankruptcy Code.
E. Notwithstanding Section XIII.C. of this Lease to the contrary,
if this Lease is assigned to any person or entity pursuant to the provisions
of the Bankruptcy Code, Landlord shall be entitled to one hundred percent
(100%) of all such Transfer Consideration.
F. If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person or entity who
shall have made a bona fide offer to accept an assignment of this Lease on
terms acceptable to the Tenant, then notice, of such proposed
offer/assignment, setting forth 1. the name and address of such person or
entity, 2. all of the terms and conditions of such offer, and 3. the adequate
assurance to be provided Landlord to assure such person's or entity's future
performance under the Lease, shall be given to Landlord by Tenant no later
than twenty (20) days after receipt by Tenant, but in any event no later than
ten (10) days prior to the date that Tenant shall make application to a court
of competent jurisdiction for authority and approval to enter into such
assumption and assignment, and Landlord shall thereupon have the prior right
and option, to be exercised by notice to Tenant given at any time prior to
the effective date of such proposed assignment, to accept an assignment of
this Lease upon the same terms and conditions and for the same consideration,
if any, as the bona fide offer made by such persons or entity, less any
brokerage commission which may be payable out of the consideration to be paid
by such person for the assignment of this Lease.
XXVII. QUIET ENJOYMENT. Tenant shall, and may peacefully have, hold, and
enjoy the Premises, subject to the Other terms of this Lease (including,
without limitation, Article XXX hereof), provided that Tenant pays the Rent
herein recited to be paid by Tenant and performs all of Tenant's covenants
and agreements herein contained. This covenant and any and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during, its or their respective periods of ownership of the Landlord's
interest hereunder.
XXVIII. RELOCATION. Landlord, at its expense, shall be entitled to
cause Tenant to relocate from the Premises one (1) time during the Lease Term
to comparable space, in a comparable location in the Building, with
comparable views as the Premises and containing approximately the same
Rentable Area as the premises (the "Relocation Space") within the Building at
any time upon sixty (60) days prior written notice to Tenant. Landlord agrees
to reimburse Tenant for all reasonable costs actually incurred in connection
with the Relocation, including the cost of reprinting existing stationary and
business cards, moving telephones, graphics and similar items of expense.
Such a relocation shall not affect this Lease except that from and after the
date of such relocating, "Premises" shall refer to the Relocation Space into
which Tenant has been moved, rather than the original Premises as herein
defined, and the Base Rental shall be adjusted so that immediately following
such relocation the Base Rental for the Relocation Space per annum on a per
square foot of Rentable Area basis shall be the same as the Base Rental per
annum immediately prior to such relocation for the original Premises on a per
square foot of Rentable Area basis.
XXIX. HOLDING OVER. In the event of holding over by Tenant after
expiration or other termination of this Lease or in the event Tenant
continues to occupy the Premises after the termination of Tenant's right of
possession pursuant to Articles XXII and XXIII hereof, occupancy of the
Premises subsequent to such termination or expiration shall be that of a
tenancy at sufferance and in no event for month-to-month or year-to-year, but
Tenant shall, throughout the entire holdover period, pay rent (on a per month
basis without reduction for any partial months during any such holdover)
equal to one hundred fifty percent (150%) of the Base Rental and one hundred
percent, (100%) of the Additional Base Rental due for the period immediately
preceding such holding over, provided if the holding over continues for more
than sixty (60) days, effective as of the thirty-first day, holdover rent
shall increase to 200% of the Base Rental and 100% of the Additional Base
Rental due for the period immediately preceding such holding over.
Notwithstanding the foregoing, in no event shall Base Rental and Additional
Base Rental during the holdover period be less than the fair market rental
for the Premises. No holding over by Tenant or payments of money by Tenant to
Landlord after the expiration of the term of this Lease shall be construed to
extend the Lease Term or prevent Landlord from recovery of immediate
possession of the Premises by summary proceedings or otherwise. Tenant shall
be liable to Landlord for all damage, including any consequential damage,
which Landlord may suffer by reason of any holding over by Tenant, and Tenant
shall indemnify Landlord against any and all claims made by any other tenant
or prospective tenant against Landlord for delay
16
by Landlord in delivering possession of the Premises to such other tenant or
prospective tenant.
XXX. SUBORDINATION TO MORTGAGES. Tenant, conditioned upon Tenant's
right to receive a non-disturbance, subordination and attornment agreement as
provide below, accepts this Lease subject and subordinate to any mortgage,
deed of trust, ground lease or other lien hereafter arising upon the
Premises, or upon the Building and/or the Property and to any renewals,
modifications, refinancings and extensions thereof (any such mortgage, deed
of trust, lease or other lien being hereinafter referred to as a "Mortgage",
and the person or entity having the benefit of same being referred to
hereinafter as a "Mortgagee"), but Tenant agrees that any such Mortgagee
shall have the right at any time to subordinate such Mortgage to this Lease
on such terms and subject to such conditions as such Mortgagee may deem
appropriate in its discretion. Landlord hereby represents that, as of the
execution date of this Lease, there are no Mortgages encumbering the
Building. Tenant agrees upon demand to execute such instruments
subordinating this Lease or attorning to the holder of any such Mortgage as
Landlord may request, provided that Tenant's obligation to execute such
subordination and attornment instruments shall be conditioned upon the
applicable Mortgagee's agreement to enter into a non-disturbance,
subordination and attornment agreement with Tenant on a customary mortgagee
form of agreement, which form may include, without limitation, the
requirement of notice to the Mortgagee, additional Time by the Mortgagee to
cure defaults by the Landlord and a waiver and release of Mortgagee for
defaults of Landlord arising prior to the date the Mortgagee takes title to
the Building, Tenant shall be responsible for any fee or review costs (not to
exceed $500.00) charged by the Mortgagee in connection with such
non-disturbance, subordination and attornment agreement. If any person shall
succeed to all or part of Landlord's interests in the Premises whether by
purchase, foreclosure, deed in lieu of foreclosure, power of sale,
termination of lease or otherwise, and if and as so requested or required by
such successor-in-interest, Tenant shall, without charge, attorn to such
successor-in-interest, Tenant agrees that it will from Time to time upon
request by Landlord and, within five days of the date of such request.
execute and deliver to such persons as Landlord shall request an estoppel
certificate or other similar statement in recordable form certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as so modified),
stating the dates to which Rent and other charges payable under this Lease
have been paid, stating that Landlord is not in default hereunder (or if
Tenant alleges a default stating the nature of such alleged default) and
further stating such other matters as Landlord shall reasonably require.
XXXI. ATTORNEY'S FEES. In the event that Landlord should retain counsel
and/or institute any suit against Tenant for violation of or to enforce any
of the covenants or conditions of this Lease, or should Tenant institute any
suit against Landlord for violation of any of the covenants or conditions of
this Lease, or should either party intervene in any suit in which the other
is a party to enforce or protect its interest or rights hereunder, the
prevailing party in any such suit shall be entitled to all of its costs,
expenses and reasonable fees of its attorney(s) (if and to the extent
permitted by law) in connection therewith.
XXXII. NOTICE. Whenever any demand, request, approval, consent or notice
("Notice") shall or may be given to either of the parties by the other, each
such Notice shall be in writing and shall be sent, by registered or certified
mail with return receipt requested, or sent by overnight courier service
(such as Federal Express) at the respective addresses of the parties for
notices as set forth in Section I.A.6. of this Lease, provided that if Tenant
has vacated the Premises or is in default of this Lease Landlord may serve
Notice by any manner permitted by Law. Any Notice under this Lease delivered
by registered or certified mail shall be deemed to have been Given and
effective on the earlier of (a) the third day following the day on which the
same shall have been mailed with sufficient postage prepaid or (b) the
delivery date indicated on the return receipt, Notice sent by overnight
courier service shall be deemed given and effective upon the day after such
notice is delivered to or picked up by the overnight courier service. Either
party may, at any time, change its Notice Address by giving the other party
Notice stating the change and setting forth the new address.
17
XXXIII. LANDLORD'S LIEN. Landlord shall be entitled to any and all
lien rights granted under the laws of the state of Texas in connection with a
default by Tenant hereunder. Notwithstanding the foregoing, provided Tenant
is not in default hereunder, Landlord agrees to subordinate its security
interest as described in this Article XXXIII to Tenant's lenders, ("Lender")
if any, requiring a priority position under the following circumstances:
(a) Lender is financing Tenant's purchase of the equipment or inventory
in which Landlord is subordinating its security interest (the "Equipment");
(b) Tenant shall furnish Landlord with a complete schedule of the
Equipment financed pursuant to the terms hereof, which schedule shall be
updated in the event of any changes;
(c) Tenant shall be prohibited from financing, any non-moveable fixture
or permanent improvement to the leasehold;
(d) Tenant shall cause any and all Lenders to give Landlord notice of
any public or private sale by such Lender of Tenant's Equipment;
(e) no public or private sale by any Lender shall be held on the
Premises; and
(f) Landlord's subordination shall not be effective unless and until a
separate agreement is entered into between Lender and Landlord respecting the
conditions set forth herein.
(g) Lender can enter the Premises for purpose of removal of the
Equipment only if:
(1) permitted by the agreement between Lender and Tenant; and
(2) Lender agrees to restore or repair all damage to the Premises
caused by such removal; and
(3) Lender gives Landlord notice in the event that any of Tenant's
moveable trade fixtures or Equipment are removed from the Premises;
and
(4) Lender indemnifies Landlord for any claim, liability or
expense (including reasonable attorney's fees) arising out of or in
connection with Lender's removal of the Equipment and Lender's entry
and activities upon the Premises.
XXXIV. EXCEPTED RIGHTS. This Lease does not grant any rights to light or
air over or about the Building. Landlord specifically excepts and reserves to
itself the use of any roofs, the exterior portions of the Premises, all rights
to and the land and improvements below the improved floor level of the Premises,
the improvements and air rights above the Premises and the improvements and air
rights located outside the demising walls of the Premises, and such areas within
the Premises as are required for installation of utility lines and other
installations required to serve any occupants of the Building and the right to
maintain and repair the same, and no rights with respect thereto are conferred
upon Tenant unless otherwise specifically provided herein. Landlord further
reserves to itself the right from time to time: A. to change the Building's name
or street address after sixty (60) days prior written notice; B. to install, fix
and maintain signs on the exterior and interior of the Building; C, to designate
and approve window coverings; D. to make any decorations, alterations,
additions, improvements to the Building, or any part thereof (including the
Premises) which Landlord shall desire, or deem necessary for the safety,
protection, preservation or improvement of the Building, or as Landlord may be
required to do by law; E. after reasonable notice, to have access to the
Premises to perform its duties and obligations and to exercise its rights under
this Lease; F. to retain at all times and to use pass-keys to all locks, within
and into the Premises; G. to approve the weight, size, or location of heavy
equipment, articles in and about the Premises; H. to close or restrict access to
the Building at all times other than Normal Business Hours subject to Tenant's
right to admittance at all times under such regulations as Landlord may
prescribe from time to time, or to close (temporarily or permanently) any of the
entrances to the Building; I. to change the arrangement and/or location of
entrances of passageways, doors and doorways, corridors, elevators, stairs,
toilets and public parts of the Building; and J. to grant to anyone the
exclusive right to conduct any business or undertaking in the Building.
Landlord, in accordance with Article XII hereof, shall have the right to enter
the Premises in connection with the exercise of any of the rights set forth
herein and such entry into the Premises and the performance of any work therein
shall not constitute a constructive eviction or entitle Tenant to any abatement
or reduction of Rent by reason thereof.
18
XXXV. SURRENDER OF PREMISES. At the expiration or earlier termination
of this Lease or Tenant's right of possession hereunder, Tenant shall quit
and surrender the Premises to Landlord, broom clean, and in good order,
condition and repair, ordinary wear and tear and casualty damage excepted. If
Tenant falls to remove any of Tenant's Property within five (5) business days
after the termination of this Lease or Tenant's right to possession
hereunder, such Tenant's Property, or any portion thereof designated by
Landlord, shall at Landlord's option, and without notice to Tenant, (a) be
conclusively presumed to have been abandoned by Tenant and title to such
items shall pass to Landlord, and/or (b) be removed and/or stored by Landlord
at the risk, cost and expense of Tenant and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. Tenant shall
pay Landlord, upon demand, any and all expenses caused by such removal and
all storage charges against such property so long as the same shall be in the
possession of Landlord or under the control of Landlord.
XXXVI. MISCELLANEOUS.
A. If any term or provision of this Lease, or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term
or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
B. Tenant agrees not to record this Lease or any memorandum
hereof without Landlord's prior written consent.
C. This Lease and the rights and obligations of the parties
hereto shall be interpreted, construed, and enforced in accordance with the
laws of the state in which the Building is located.
D. Events of "Force Majeure" shall include strikes, riots, acts
of God, shortages of labor or materials, war, governmental law, regulations
or restrictions and any other cause whatsoever that is beyond the control of
Landlord. Whenever a period of time is herein prescribed for the taking of
any action by Landlord, Landlord shall not be liable or responsible for, and
there shall be excluded from the computation of such period of time, any
delays due to events of Force Majeure.
E. Landlord shall have the right to transfer end assign, in
whole or in part, all of its rights and obligations hereunder and in the
Building and Property referred to herein, and in such event and upon such
transfer Landlord shall be released from any further obligations hereunder,
and Tenant agrees to look solely to such successor in interest of Landlord
for the performance of such obligations.
F. Tenant hereby represents to Landlord that Lafarge Construction
Materials, a division of Tenant, has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant agrees to indemnify
and hold Landlord and the Landlord Related Parties harmless from all claims of
any brokers, who have represented Tenant in connection with this Lease.
G. If there is more than one Tenant, or if the Tenant is comprised
of more than one person or entity, the obligations hereunder imposed upon Tenant
shall be joint and several obligations of all such parties. All notices,
payments, and agreements given or made by, with or to any one of such persons or
entities shall be deemed to have been given or made by, with or to all of them.
H. In the event Tenant is a corporation (including any form of
professional association), partnership (general or limited), or other form of
organization other than an individual, then each individual executing or
attesting this Lease on behalf of Tenant hereby covenants, warrants and
represents: 1. that such individual is duly authorized to execute or attest
and deliver this Lease on behalf of Tenant in accordance with the
organizational documents of Tenant; 2. that this Lease is binding upon
Tenant; 3. that Tenant is duly organized and legally existing in the state of
its organization, and is qualified to do business in the state in which the
Premises is located; 4. that upon request, Tenant will provide Landlord with
true and correct copies of all organizational documents of Tenant, and any
amendments thereto; and 5. that the execution and delivery of this Lease by
Tenant will not result in any breach of, or constitute a default under any
mortgage, deed of trust, lease, loan, credit agreement, partnership agreement
or other contract or instrument to which Tenant is a party or by which
Tenant may be bound. If Tenant is a corporation, Tenant will, prior to the
Commencement Date, deliver to Landlord a copy of a resolution of Tenant's
19
board of directors authorizing or ratifying the execution and delivery of
this Lease, which resolution will be duly certified to Landlord's
satisfaction by the secretary or assistant secretary of Tenant.
I. Tenant acknowledges that the financial capability of Tenant
to perform its obligations hereunder is material to Landlord and that
Landlord would not enter into this Lease but for its belief, based on its
review of Tenant's financial statements, that Tenant is capable of performing
such financial obligations. Tenant hereby represents, warrants and certifies
to Landlord that its financial statements previously furnished to Landlord
were at the time given true and correct in all material respects and that
there have been no material subsequent changes thereto as of the date of this
Lease. At any time during the Lease Term, Tenant shall provide Landlord, upon
ten (10) days prior written notice from Landlord, with a current financial
statement and financial statements of the two (2) years prior to the current
financial statement year. Such statement shall be prepared in accordance with
generally accepted accounting principles and, if such is the normal practice
of Tenant, shall be audited by an independent certified public accountant.
J. Except as expressly otherwise herein provided, with respect
to all required acts of Tenant, time is of the essence of this Lease. This
Lease shall create the relationship of Landlord and Tenant between the
parties hereto, and no estate shall pass out of Landlord. Tenant has only a
usufruct, not subject to purchase or sale, which may not be assigned by
Tenant except as expressly provided in this Lease.
K. This Lease and the covenants and conditions herein contained
shall inure to the benefit of and be binding upon Landlord and Tenant and
their respective permitted successors and assigns.
L. Notwithstanding anything to the contrary contained in this
Lease, the expiration of the Lease Term, whether by lapse of time or
otherwise, shall not relieve Tenant from Tenant's obligations accruing prior
to the expiration of the Lease Term.
M. The headings and titles to the paragraphs of this Lease are
for convenience only and shall have no effect upon the construction or
interpretation of any part hereof, Landlord represents and covenants that it
has full right, power and authority to make this Lease and that Tenant, upon
the payment of the rentals and performing the covenant on Tenant's part to be
performed hereunder, shall and may peaceably and quietly have, hold and enjoy
the demised premises during the term hereof and any extensions thereof.
Landlord agrees to make reasonable efforts to protect Tenant from
interference or disturbance by other tenants or third persons; however,
Landlord shall not be liable for any such interference or disturbance.
Landlord represents and warrants that it is the sole owner of the
Building and the leased Premises, that it has the full right, power and
authority to make this Lease and that no other person needs to join in the
execution of this instrument in order for this lease to be binding on all
parties having an interest in the demised premises and that it will execute
or procure any further necessary assurances of title that may be reasonably
required for the protection of Tenant.
N. Landlord has delivered a copy of this Lease to Tenant for
Tenant's, review only, and the delivery hereof does not constitute an offer
to Tenant or option. This Lease shall not be effective until an original of
this Lease executed by both Landlord and Tenant and an original Guaranty, if
any, executed by each Guarantor is delivered to and accepted by Landlord, and
this Lease has been approved by Landlord's Mortgagees, if required.
XXXVII. ENTIRE AGREEMENT. This Lease Agreement, including the
following Exhibits:
EXHIBIT A - Outline and Location of Premises
EXHIBIT A-1 - Outline and Location of Premises
EXHIBIT A-2 - Legal Description of Real Property
EXHIBIT B-1 - Schedule of Base Rental
EXHIBIT B-2 - Payment of Basic Costs
EXHIBIT C - Work Letter Agreement (if required)
20
EXHIBIT D - Rules and Regulations
EXHIBIT E - Parking Agreement
EXHIBIT F - Additional Terms
EXHIBIT F-1 - Offering Space
EXHIBIT F-2 - Advice
EXHIBIT G - HVAC Specifications
EXHIBIT H - Cleaning Specifications
constitutes the entire agreement between the parties hereto with respect to
the subject matter of this Lease. TENANT EXPRESSLY ACKNOWLEDGES AND AGREES
THAT LANDLORD HAS NOT MADE AND IS NOT MAKING, AND TENANT, IN EXECUTING AND
DELIVERING THIS LEASE, IS NOT RELYING UPON, ANY WARRANTIES, REPRESENTATIONS,
PROMISES OR STATEMENTS, EXCEPT TO THE EXTENT THAT THE SAME ARE EXPRESSLY SET
FORTH IN THIS LEASE. ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE
BETWEEN THE PARTIES ARE MERGED IN THIS LEASE WHICH ALONE FULLY AND COMPLETELY
EXPRESSES THE AGREEMENT OF THE PARTIES, NEITHER PARTY RELYING UPON ANY
STATEMENT OR REPRESENTATION NOT EMBODIED IN THIS LEASE. THIS LEASE MAY BE
MODIFIED ONLY BY A WRITTEN AGREEMENT SIGNED BY LANDLORD AND TENANT. LANDLORD
AND TENANT EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES
OF MERCHANTABILITY, HABITABILITY, SUITABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, ALL OF WHICH ARE
HEREBY WAIVED BY TENANT, AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND
THOSE EXPRESSLY SET FORTH IN THIS LEASE.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts as of the day and year first above written.
ATTEST: LANDLORD: Xxxx/Xxxxxxx Xxxxx Real Estate
Opportunity Partners Limited Partnership II
/s/ XXXXXXX XXXXX
----------------------------
Name (print): XXXXXXX XXXXX BY: EQUITY, ASSETS MANAGEMENT,
-------------- INC.,as agent
---------------------------- By: /s/ XXXXXXX XXXX
Name (print): -----------------------------------
--------------- Name: XXXXXXX XXXX
--------------------------------
Title: VICE PRESIDENT
--------------------------------
ATTEST: TENANT: Lafarge Corporation, a Maryland
corporation
/s/ XXXXXXX XXXXXX
----------------------------
Name (print): XXXXXXX XXXXXX By: /s/ XXXXXX XXXXXX
-------------- --------------------------------------
/s/ XXXXXX X. XXXXXX Name: XXXXXX XXXXXX
---------------------------- -----------------------------------
Name (print): XXXXXX XXXXXX Title: PRESIDENT, LAFARGE CONSTRUCTION
-------------- MATERIALS SOUTHERN U.S. REGION
-----------------------------------
21
EXHIBIT B-1
SCHEDULE OF BASE RENTAL
This Exhibit is attached to and made of part of the Lease dated February
26, 1993 by and between Xxxx/Xxxxxxx Xxxxx Real Estate Opportunity Partners
Limited Partnership II, ("Landlord") by its agent Equity Assets Management,
Inc. and Lafarge Corporation ("Tenant") for space in the Building located at
00000 X. Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx,
Tenant shall pay Landlord the sum of Four Hundred Twenty-Four Thousand
One Hundred Fifty-Three Dollars and 14/100 Cents ($424,153.14) as Base Rental
for the Lease Term in sixty (60) monthly installments as follows:
A. Nine (9) equal installments of $10,327.16 each payable on or before
the first day of each month during the period beginning April 1, 1993 and
ending December 31, 1993.
B. Three (3) equal installments of $6,149.14 each payable on or before
the first day of each month during the period beginning January 1, 1994 and
ending March 31, 1994.
C. Twelve (12) equal installments of $6,295.83 each payable on or
before the first day of each month during the period beginning April 1, 1994
and ending March 31, 1995.
D. Twelve (12) equal installments of $6,442.52 each payable on or
before the first day of each month during the period beginning April 1, 1995
and ending March 31, 1996.
E. Twelve (12) equal installments of $6,589.20 each payable on or
before the first day of each month during the period beginning April 1, 1996
and ending March 31, 1997.
F. Twelve (12) equal installments of $6,735.89 each payable on or
before the first day of each month during the period beginning April 1, 1997
and ending March 31, 1998.
All such Base Rental shall be payable by Tenant in accordance with the
terms of Article V of the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as
of the date first written above.
LANDLORD: Xxxx/Xxxxxxx Xxxxx Real Estate
Opportunity Partners Limited Partnership II
ATTEST: BY: EQUITY ASSETS MANAGEMENT, INC., as agent
/s/ XXXXXXX XXXXX By: /s/ XXXXXXX XXXX
---------------------------- -------------------------------------
Name (print): XXXXXXX XXXXX Name: XXXXXXX XXXX
-------------- -----------------------------------
Title: VICE PRESIDENT
---------------------------- ----------------------------------
Name (print):
---------------
TENANT: LAFARGE CORPORATION
ATTEST:
/s/ XXXXXXX XXXXXX By: /s/ XXXXXX XXXXXX
---------------------------- -----------------------------------------
Name (print): XXXXXXX XXXXXX Name: XXXXXX XXXXXX
-------------- ---------------------------------------
/s/ XXXXXX X. XXXXXX Title: PRESIDENT, LAFARGE CONSTRUCTION
---------------------------- MATERIALS, SOUTHERN U.S. REGION
Name (print): XXXXXX XXXXXX --------------------------------------
---------------
22
EXHIBIT A
Outline and Location of Premises
[MAP]
EXHIBIT A-1
Outline and Location of Premises
[MAP]
EXHIBIT A-2
Legal Description
Being a survey of a tract of land partly in the X. X. Xxxxxxx Survey Abstract
No. 1272 and partly in the X. X. Xxxxxx Survey Xxxxxxxx Xx. 0000, Xxxxxx
Xxxxxx, Xxxxx; and being a part of Lot One (1), Block 1/7755 of the Replat of
the Xxxxx X. Xxxxx Addition, an Addition to the City of Dallas as per map
recorded in Volume 83197, Page 4902 of the Map Records of Dallas County,
Texas; and being more particularly described as follows, to-wit:
COMMENCING at a point in the East line of Xxxx Road (25.00 feet from
centerline) that is the Southwest corner of a certain 5.419 acre tract
described in deed to Xxxxx X. Atel, dated May 28, 0000, Xxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx; Thence South 89 deg. 33 min. 52 sec. East, 381.77 feet to the
most Southerly Southeast corner of said Xxxxx Addition and the Southeast
corner of a certain 211,865 square foot tract; Thence North, along an
Easterly line of said Addition and said tract, 319.11 feet to the POINT OF
BEGINNING of the tract described herein said Point being the Northwest corner
of the Regency Central Plaza Addition.
THENCE North, continuing along an Easterly line of said addition and of said
211,865 square foot tract. 190.89 feet to a point in a North line of said
Addition that is the most Easterly Northeast corner of said 211,865 S. F.
Tract;
THENCE South 89 deg. 33 min. 52 sec. East, 218.72 feet;
THENCE North 00 deg. 06 min. 19 sec. East, 270.28 feet;
THENCE South 89 deg. 33 min, 07 sec. East, 160.90 feet to a point in the
Westerly line of L. B. J. Freeway (I.H. 635):
THENCE southerly along the westerly line of said Freeway as follows: 1st
around a curve to the right that has a Central Angle of 16 deg. 50 min. 10
sec., a Radius of 557.96 feet (the Radial Bearing at this point being South
44 deg. 42 min. 16 sec. West), a Tangent of 82.57 feet, and for a distance of
163.95 feet; 2nd South 28 deg. 27 min, 34 sec. East, 99.66 feet to the
beginning of a curve to the right that has a Central Angle of 31 deg. 25 min.
59 sec., a Radius of 462.46 feet and a Tangent of 130.13 feet; 3rd. around
said curve to the right, 253.71 feet to the Northeast corner of said Regency
Central Plaza Addition;
THENCE North 89 deg. 33 min. 52 sec. West, along the North line of said
Regency Central Plaza Addition, 580.92 feet to the POINT OF BEGINNING and
containing 178,904 square feet of land.
EXHIBIT B-2
PAYMENT OF BASIC COSTS
This Exhibit is attached to and made a part of the Lease dated February
26, 1993 by and between Xxxx\Xxxxxxx Xxxxx Real Estate Opportunity Partners
Limited Partnership II, ("Landlord") by its agent Equity Assets Management,
Inc, and Lafarge Corporation ("Tenant") for space in the Building located at
00000 X. Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx.
BASIC COST ADJUSTMENT. During each calendar year, or portion thereof,
falling within the Lease Term, Tenant shall pay to Landlord as Additional
Base Rental hereunder Tenant's Pro Rata Share of the amount, if any, by which
Basic Costs (as defined below) for the applicable calendar year exceed the
Basic Costs for the Base Year (the "Excess"). For purposes hereof, the "Base
Year" shall mean the calendar year 1993. Prior to the Commencement Date and
prior to January 1 of each calendar year during the Lease Term, or as soon
thereafter as practical, Landlord shall make a good faith estimate of the
Excess for the applicable calendar year. On or before the first day of each
month during such calendar year, Tenant shall pay Landlord, as Additional
Base Rental, a monthly installment equal to one-twelfth of Tenant's Pro Rata
Share of Landlord's estimate of the Excess. Landlord shall have the right
from time to time during any such calendar year to revise the estimate of the
Excess for such year and provide Tenant with a revised statement therefor,
and thereafter the amount Tenant shall pay each month shall be based upon
such revised estimate. If Landlord does not provide Tenant with an estimate
of the Excess by January 1 of any calendar year, Tenant shall continue to pay
a monthly installment based on the previous year's estimate until such time
as Landlord provides Tenant with an estimate of the Excess for the current
year. Upon receipt of such current year's estimate, an adjustment shall be
made for any month during the current year with respect to which Tenant paid
monthly installments of Additional Base Rental based on the previous years
estimate of the Excess. Tenant shall pay Landlord for any underpayment upon
demand. Any underpayment shall, at Landlord's option, be refunded to Tenant
or credited against the installment of Additional Base Rental due for the
month immediately following the furnishing of such estimate. Any amounts paid
by Tenant based on any estimate shall be subject to adjustment pursuant to
Paragraph A below, when actual Basic Costs are determined for such calendar
year. Upon request by Tenant, Landlord shall provide Tenant with any reports,
audits and other data supporting the estimated Basic Costs and estimated
Excess as were used by Landlord to determine such estimates.
A. BASIC COSTS RECONCILIATION. As soon as is practical following the
end of each calendar year during the Lease Term, Landlord shall furnish to
Tenant a statement of Landlord's actual Basic Costs and the actual Excess
for the previous calendar year. If for any calendar year the Additional
Base Rental collected for the prior year, as a result of Landlord's
estimate of Basic Costs, is in excess of Tenant's actual Pro Rata Share of
the Excess for such prior year, then Landlord shall refund to Tenant any
overpayment (or at Landlord's option, apply such amount against Additional
Base Rental due or to become due hereunder). Likewise, Tenant shall pay to
Landlord, on demand, any underpayment with respect to the prior year,
whether or not the Lease has terminated prior to receipt by Tenant of a
statement for such underpayment, it being understood that this clause shall
survive the expiration of the Lease.
B. BASIC COSTS DEFINED. Basic Costs shall mean all reasonable direct and
indirect costs and expenses paid or incurred in each calendar year in
connection with operating, maintaining, repairing, managing and owning the
Building and the Property (inclusive of the Exterior Common Areas),
including, without limitation, the following:
(i) All labor costs for all persons performing services required or
utilized in connection with the operation, repair and maintenance of
and control of access to the Building and the Property, including but
not limited to amounts incurred for wages, salaries and other
compensation for services, payroll, social security, unemployment and
other similar taxes, workmen's compensation insurance, uniforms,
disability benefits, pensions, hospitalization, retirement plans,
group insurance or any other similar or like expenses incurred under
the provisions of any collective bargaining agreement.
23
(ii) All management fees, the cost of maintaining a management office
at the Building, and all fees for legal and accounting services
relating to the Building and the Property.
(iii) All rental and/or purchase costs of materials, supplies, hand
tools and equipment used in the operation, repair, replacement and
maintenance and the control of access to the Building and the Property.
(iv) All amounts charged to Landlord by contractors and/or suppliers
for services, materials, equipment and supplies furnished in connection
with the operation, repair, maintenance, replacement of and control of
access to any part of the Building, or the Property generally,
including the heating, air conditioning, ventilating, plumbing,
electrical, elevator and other systems.
(v) All premiums and deductibles paid by Landlord for fire and
extended coverage insurance, earthquake and extended coverage
insurance, liability and extended coverage insurance, rental loss
insurance, elevator insurance, boiler insurance and other insurance
customarily carried from time to time by lessors of comparable office
buildings or required to be carried by Landlord's Mortgagee.
(vi) Charges for all utilities, including but not limited to water,
electricity, gas and sewer, but excluding those charges for which
tenants are individually responsible.
(vii) Taxes, including (i) all real estate taxes and assessments on
the Property, the Building or the Premises, and taxes and assessments
levied in substitution or supplementation in whole or in part of such
taxes, (ii) all personal property taxes, for the Building's personal
property, including license expenses, (iii) all franchise fees, (iv)
all taxes imposed on services of Landlord's agents and employees (but
excluding income and franchise taxes), (v) all sales, use or other tax,
excluding state and/or federal income tax, now or hereafter imposed by
any governmental authority upon Rent received by Landlord, (vi) all
other taxes, fees or assessments now or hereafter levied by any
governmental authority on the Property, the Building or its contents or
on the operation and use thereof (except as relate to specific
tenants), and (vii) all costs and fees incurred in connection with
seeking reductions in or refunds in Taxes including, without
limitation, any costs incurred by Landlord to challenge the tax
valuation of the Building, but excluding income taxes.
(viii) All landscape expenses and costs of repairing, resurfacing and
striping of the parking areas of the Property, if any.
(ix) Cost of all maintenance service agreements, including those for
equipment, alarm service, window cleaning, drapery or venetian blind
cleaning, janitorial services, pest control, uniform supply,
landscaping, and any parking equipment.
(x) Cost of all other repairs, replacements and general maintenance of
the Property and Building neither specified above nor directly billed
to tenants.
(xi) The amortized cost of capital improvements made to the Building
or the Property which are primarily for the purpose of reducing
operating expense costs or otherwise improving the operating efficiency
of the Property or Building or which are required to comply with any
laws, rules or regulations of any governmental authority, the cost of
such items to be amortized over a period of at least five (5) years.
Such amortization shall be in accordance with generally accepted
accounting principles and shall include interest at the rate of fifteen
percent (15%) per annum compounded monthly.
C. "Exterior Common Areas" shall mean those areas of the Property which
are not located within the Building and which are provided and maintained
for the use and benefit of Landlord and tenants of the Building generally
and the employees, invitees and licensees of Landlord and such tenants,
including, without limitation, any parking, garage, plaza, roads, sidewalks
and landscapes.
D. EXCLUSIONS FROM BASIC COSTS. Basic Costs shall not include the cost
of capital improvements (except as above set forth), depreciation, interest
(except as provided above with respect to the amortization of capital
improvements), commissions and leasing costs, and principal payments on
mortgage and other non-operating debts of Landlord.
24
E. OCCUPANCY. Notwithstanding any language in the Lease seemingly to the
contrary, if the Building is not fully occupied during the 1993 Calendar
Year or any subsequent calendar year of the Lease Term, actual Basic Costs
for purposes of this Exhibit B-2 shall, at Landlord's option, be determined
as if the Building had been one hundred percent (100%) occupied during such
year. Notwithstanding the foregoing, in no event shall Landlord, in any
given calendar year during the Lease Term, collect more than its actual
Basic Costs with respect to such calendar year
F. AUDIT RIGHTS. Landlord agrees to keep necessary books and records
reflecting the Basic Costs for the Building. Tenant, at its sole cost and
expense, shall have the right, within one hundred twenty (120) days after
receiving Landlord's statement of actual Basic Costs and the actual Excess
for a particular calendar year, to review Landlord's books and records
relating to the Basic Costs for such year. If within such one hundred
twenty (120) day period Tenant does not give Landlord written notice
stating in reasonable detail any objection to the statement of actual Basic
Costs, Tenant shall be deemed to have approved such statement in all
respects. If Tenant's review discloses that the Basic Costs are different
than those reported, Landlord and Tenant shall work together in good faith
to resolve the discrepancy between Landlord's statement and Tenant's
review. If Landlord and Tenant determine that Basic Costs are less than
reported, Landlord shall forthwith pay to Tenant or credit Tenant the
difference as may be shown to be paid or payable for actual Basic Costs. In
addition if Landlord and Tenant determine that Basic Costs were overstated
by more than five percent (5%), then Landlord shall pay the reasonable cost
of such review by Tenant. Likewise, if Landlord and Tenant determine that
Basic Costs are greater than reported, Tenant shall forthwith pay the
difference to Landlord. Any information obtained by Tenant pursuant to the
provisions of the Section shall be treated as confidential.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as
of the date first written above.
LANDLORD: XXXX/XXXXXXX XXXXX REAL
ESTATE OPPORTUNITY
PARTNERS LIMITED
PARTNERSHIP II
ATTEST: BY: EQUITY ASSETS MANAGEMENT, INC.,
as agent
/s/ XXXXXXX XXXXX By: /s/ XXXXXXX XXXX
------------------------------ ----------------------------
Name (print): XXXXXXX XXXXX Name: XXXXXXX XXXX
----------------- --------------------------
Title: VICE PRESIDENT
------------------------------ -------------------------
Name (print):
-----------------
TENANT: LAFARGE CORPORATION
ATTEST:
/s/ XXXXXXX XXXXXX By: /s/ XXXXXX XXXXXX
------------------------------ --------------------------------
Name (print): XXXXXXX XXXXXX Name: XXXXXX XXXXXX
---------------- ------------------------------
/s/ XXXXXX X. XXXXXX Title: PRESIDENT, LAFARGE
------------------------------ CONSTRUCTION MATERIALS
Name (print): XXXXXX X. XXXXXX SOUTHERN U.S. REGION
----------------- -----------------------------
25
EXHIBIT C
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated February
26, 1993 by and between Xxxx\Xxxxxxx Xxxxx Real Estate Opportunity Partners
Limited Partnership II ("Landlord"), by its agent Equity Assets Management,
Inc. and Lafarge Corporation, a Maryland Corporation ("Tenant") for space in
the Building located at 00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx.
1. This Work Letter shall set forth the obligations of Landlord and
Tenant with respect to the improvements to be performed in the portion of the
Premises located on the second floor and known as Suite 250, it being agreed
that Landlord shall not be required to perform improvements in any portion of
the Premises other than Suite 250. All improvements described in this Work
Letter to be constructed in and upon the Suite 250 by Landlord are
hereinafter referred to as the "Landlord Work." It is agreed that
construction of the Landlord Work and all costs in connection therewith will
be at Tenant's sole cost and expense, subject to the Allowance described
herein. Landlord will commence the Landlord Work within five (5) business
days following the last to occur of a) full and final execution of the Lease,
b) the full and final execution of a contract for the Landlord Work between
Landlord and the General Contractor (hereinafter defined) and c) the payment
to Landlord by Tenant of any Excess Costs (hereinafter defined).
2. The Landlord Work shall be based on the space plans prepared by
Interprise Southwest ("Tenant's Architect"), dated February 17, 1993. Tenant
and Tenant's Architect shall devote such time in consultation with Landlord
and Xxxx Consulting Engineers ("Xxxx") as may be required to provide, by no
later than February 18, 1393, all information Xxxx deems necessary to prepare
engineering (mechanical, electrical and plumbing) drawings for the Landlord
Work.
3. The Landlord Work will be competitively bid by the following general
contractors: a) Xxxxxxx Construction, Inc., b) Innerspace Construction, Inc.,
c) Pacific Builders, Inc., and d) Phoenix Commercial, Inc. The bids shall be
sealed, and Tenant shall be present when the bids are opened. Tenant shall
be entitled to participate in the preparation of the bid instructions, bid
form and the clarification and qualification of any bids received. All
things being equal, the lowest qualified bidder shall be accepted and awarded
the contract for Landlord Work. The general contractor selected to perform
the Landlord Work shall be referred to herein as the "General Contractor".
Landlord shall enter into a direct Contract with the General Contractor for
the performance of the Landlord Work. Tenant shall have the right to identify
defects in the Landlord Work from time to time during the performance of the
Landlord Work. Notwithstanding anything herein to the contrary, Landlord and
Tenant agree that the Landlord Work shall be submitted for bid based on a
completion date of March 25, 1993. In the event that the Landlord Work in
Suite 250 is completed prior to the Commencement Date, Tenant shall have the
right to occupy Suite 250 for the purpose of conducting its business therein
subject to all of the terms and conditions of the Lease, provided that Tenant
shall not be required to pay Base Rental for Suite 250 with respect to the
period beginning on the date or occupancy and ending on the day prior to the
Commencement Date. Tenant's occupancy of any portion of the Premises other
than Suite 250 prior to the Commencement Date shall be subject to all of the
terms and conditions of this Lease, including, without limitation, the
obligation to pay Base Rental for such period. Notwithstanding the foregoing,
if (i) the Landlord Work in Suite 250 is not substantially complete by March 30,
1993 due to delays caused by Tenant and, as a result thereof or as a result of
any other reason within the control of Tenant, Tenant fails to vacate its space
on the sixteenth floor of the Building by March 30, 1993, and (ii) because of
Tenant's failure to vacate, the landlord work in Suite 1600 is not substantially
complete, by June 30, 1993 under the terms of the lease for such space with
Lafarge Corporation, Cement Division, then, Tenant shall be obligated to
reimburse Lafarge Corporation, Cement Division for any rental it is required to
pay for space on the fifteenth floor or, if Lafarge Corporation is not permitted
to occupy space on the fifteenth floor, for any rental it is required to pay for
the portion of space on the sixteenth floor for which the landlord work is not
substantially complete. The obligation to reimburse Lafarge Corporation, Cement
Division shall commence on July 1, 1993 and continue for the number of days that
Landlord was delayed in completing the landlord work on the sixteenth floor as a
result of Tenant's failure to vacate the sixteenth floor space by March 30,
1993. For the sole purpose of this reimbursement obligation, Lafarge
Corporation, Cement Division shall be considered a third party beneficiary of
this Lease.
4. In the event the aggregate cost of moving expenses, preparing and
revising the Plans and performing Landlord Work pursuant to the accepted bid,
shall exceed the Allowance (such amounts exceeding the allowance being herein
referred to as the "Excess Costs"), Tenant shall pay to Landlord such Excess
Costs upon demand prior to the commencement of the Landlord Work. The
amounts payable hereunder constitute Rent payable pursuant to the Lease, and
the failure to timely pay same constitutes an event of default under the
Lease.
5. If Tenant shall request any change, addition or alteration in any of
the Plans submitted for bid pursuant to paragraph 3 above, Landlord shall
have such revisions to the Plans prepared, and Tenant shall reimburse
Landlord for the cost thereof to the extent that the Allowance is exceeded.
Promptly upon completion of the revisions, Landlord shall notify Tenant in
writing of the increased cost of Landlord Work, if any, which will be
chargeable by reason of such change, addition or deletion. Tenant shall,
within two (2) Business Days, notify Landlord in writing whether it desires
to proceed with such change, addition or deletion in Landlord Work. In the
absence of such written authorization, Landlord shall have the option to
continue work on the Premises disregarding the requested change, addition or
alteration. Tenant shall be responsible for any increased costs in
connection with such change, addition or deletion to the extent that the
Allowance is exceeded and shall pay Landlord for such costs within five (5)
days after demand from Landlord.
6. Landlord, provided Tenant is not in default, agrees to provide
Tenant with an allowance (the "Allowance") in an amount not to exceed
Ninety-Eight Thousand Five Hundred Seventy-Four and 00/100 Dollars
($98,574.00) to be applied toward the cost of any reasonable documented costs
of moving Tenants furniture, equipment and other personal property into the
Premises, the cost of preparing and revising the Plans and the cost of
performing the Landlord Work in the Suite 250. In the event the Allowance
shall not be sufficient to pay for all such costs, Tenant shall pay the
Excess Costs as prescribed in paragraph 4 and 5 above. In the event the
Allowance exceeds the cost of moving expenses, preparing and revising the
Plans and Landlord Work, Tenant shall be entitled to receive a credit against
Base Rental in an amount equal to the lesser of a) the unused balance of the
Allowance, and b) Fourteen Thousand Eighty-Two Dollars and 00\100 Cents
($14,082.00). Except as provided in the foregoing sentence, the entire
unused balance of the Allowance shall accrue to the sole benefit of Landlord
it being agreed that Tenant shall not be entitled to any credit, offset,
abatement or payment with respect thereto.
7. Landlord, as part of the Landlord Work, shall perform all
modifications to the existing sprinkler system in the Premises that are
necessitated by the Plans and Tenant's layout of the Premises, including the
relocation of existing sprinkler heads and the installation of necessary
additional sprinkler heads. The cost of all such work shall be paid for out
of the Allowance. Except to the extent arising out of or in connection with
Tenant's particular use of the Premises or any alterations, additions or
improvements to the Premises performed by or on behalf of Tenant subsequent
to the completion of the Landlord Work, Landlord, at its expense (except to
the extent included in Basic Costs) shall modify the fire sprinkler system at
such times
as may be necessary to avoid non-compliance with any changes in the
applicable laws, statutes or ordinances governing fire sprinkler systems.
8. This Exhibit C shall not be deemed applicable to any additional
space added to the original Premises at any time or from time to time,
whether by any options under the Lease or otherwise, or to any portion of the
original Premises or any additions to the Premises in the event of a renewal
or extension of the original Term off this Lease, whether by any options
under the Lease or otherwise, unless expressly so provided in the Lease or
any amendment or supplement to the Lease.
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Exhibit C
as of the date first above written.
LANDLORD: Xxxx/Xxxxxxx Xxxxx Real Estate
Opportunity Partners Limited
Partnership II
BY: Equity Assets Management,
Inc., an Illinois
Corporation, as agent
By: /s/ XXXXXXX XXXX
----------------------
VICE PRESIDENT
TENANT: Lafarge Corporation, a
Maryland Corporation
BY: /s/ XXXXXX XXXXXX
---------------------------
EXHIBIT D
BUILDING RULES AND REGULATIONS
This Exhibit is attached to and made a part of the Lease dated February
26, 1993 by and between Xxxx/Xxxxxxx Xxxxx Real Estate Opportunity Partners
Limited Partnership II, ("Landlord") by its agent Equity Assets Management,
Inc. and Lafarge Corporation ("Tenant") for space in the Building located at
00000 X. Xxxxxxx Xxxxx., Xxxxxx, XX.
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking garage associated therewith (if any),
the Property and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any purpose
other than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material of any nature shall be placed, emptied, or thrown in those
areas. At no time shall Tenant permit Tenant's employees to loiter in common
areas or elsewhere in or about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not in any case be
responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on
or to any windows, doors or other parts of the Building, except those of such
color, size, style and in such places as shall be first approved in writing
by Landlord. No nails, hooks or screws shall be driven or inserted into any
part of the Premises or Building except by the Building maintenance
personnel, nor shall any part of the Building be defaced by Tenant.
4. Landlord may provide and maintain in the first floor (main lobby) of
the Building an alphabetical directory board listing all Tenants, and no
other directory shall be permitted unless previously consented to by Landlord
in writing.
5. Tenant shall not place any additional lock or locks on any door in
the Premises or Building without Landlord's prior written consent. A
reasonable number of keys to the locks on the doors in the Premises shall be
furnished by Landlord to Tenant at the cost of Tenant, and Tenant shall not
have any duplicate keys made. All keys shall be returned to Landlord at the
expiration or earlier termination of this Lease.
6. Tenant will refer to Landlord for Landlord's supervision, approval,
and control all contractors, contractor's representatives, and installation
technicians rendering any service to Tenant, before performance of any
contractual service. Such supervisory action by Landlord shall not render
Landlord responsible for any work performed for Tenant. This provision shall
apply to all work performed in the Building, including but not limited to the
installation of telephones, computer wiring, cabling, equipment, electrical
devices, attachments and installations of any nature. Tenant shall be solely
responsible for complying with all applicable laws, codes and ordinances
pursuant to which said work shall be performed.
7. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by Tenant or any merchandise or materials which
require the use of elevators, stairways, lobby areas, or loading dock areas,
shall be restricted to hours designated by Landlord. Tenant must seek
Landlord's prior approval by providing in writing a detailed listing of any
such activity. If approved by Landlord, such activity shall be under the
supervision of Landlord and performed in the manner stated by Landlord.
Landlord may prohibit any article, equipment or any other item from being
brought into the Building. Tenant is to assume all risk for damage to
articles moved and injury to any persons resulting from such activity. If any
equipment, property, and/or personnel of Landlord or any of any, other tenant
is damaged or injured as a result of or in connection with such activity,
Tenant shall be solely liable for any and all damage or loss resulting
therefrom.
8. Landlord shall have the power to prescribe the weight and position
of safes and other heavy equipment or items, which in all cases shall not in
the opinion of Landlord exceed acceptable floor loading and weight
distribution requirements. All damage done to the Building by the
installation or removal of any property of Tenant or done by Tenant's
property while in the Building, shall be repaired at the expense of Tenant.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (i) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any way
with other tenants or persons having business with them; (ii) solicit
business or distribute, or cause to be distributed, in any portion of the
Building any handbills, promotional materials or other advertising; or (iii)
conduct or permit any other activities in the Building that might constitute
a nuisance.
-1-
11. No animals, except seeing eye dogs, shall be brought into or kept
in, on or about the Premises.
12. No inflammable, explosive or dangerous fluid or substance shall be
used or kept by Tenant in the Premises or Building. Tenant shall not, without
Landlord's prior written consent, use, store, install, spill, remove, release
or dispose of within or about the Premises or any other portion of the
Property, any asbestos-containing materials or any solid, liquid or gaseous
material now or hereafter considered toxic or hazardous under the provisions
of 42 U.S,C, Section 9601 et seq. or any other applicable environmental law
which may now or hereafter be in effect. If Landlord does give written
consent to Tenant pursuant to the foregoing sentence, Tenant shall comply
with all applicable laws, rules and regulations pertaining to and governing
such use by Tenant, and shall remain liable for all costs of cleanup or
removal in connection therewith.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or future
value of the Premises or the Building; without limiting the foregoing, Tenant
shall not use or permit the Premises or any portion thereof to be used for
lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's
labor contracts affecting the Building or which would cause any work
stoppage, picketing, labor disruption or dispute, or any interference with
the business of Landlord or any other tenant or occupant of the Building or
with the rights and privileges of any person lawfully in the Building. Tenant
shall take any actions necessary to resolve any such work stoppage,
picketing, labor disruption, dispute or interference and shall have pickets
removed and, at the request of Landlord, immediately terminate at anytime any
construction work being performed in the Premises giving rise to such labor
problems, until such time as Landlord shall have given its written consent
for the resumption of such work. Tenant shall have no claim for damages of
any nature against Landlord or any of the Landlord Related Parties in
connection therewith, nor shall the date of the commencement of the Term be
extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service
designated by Landlord to control termites and pests in the Promises. Tenant
shall bear the cost and expense of such extermination services, provided that
Tenant shall not be obligated to pay more for its participation in such
termite and pest extermination services than the prevailing competitive rates
charged by reputable independent termite and pest control exterminators for
the same service on a direct and individual basis.
16. Tenant shall not install, operate or maintain in the Premises or in
any other area of the Building, any electrical equipment which does not bear
the U/L (Underwriters Laboratories) seal of approval, or which would overload
the electrical system or any part thereof beyond its capacity for proper,
efficient and safe operation as determined by Landlord, taking into
consideration the overall electrical system and the present and future
requirements therefor in the Building. Tenant shall not furnish any cooling
or heating to the Premises, including, without limitation the use of any
electronic or gas heating devices, without Landlord's prior written consent.
17. Tenant shall not operate or permit to be operated on the Premises
any coin or token operated vending machine or similar device (including,
without limitation, telephones, lockers, toilets, scales, amusement devices
and machines for sale of beverages, foods, candy, cigarettes or other goods),
except for those vending machines or similar devices which are for the sole
and exclusive use of Tenant's employees, and then only if such operation does
not violate the lease of any other tenant of the Building.
18. Bicycles and other vehicles are not permitted inside or on the
walkways outside the Building, except in those areas specifically designated
by Landlord for such purposes.
19. Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the Building, its occupants, entry
and use, or its contents. Tenant, Tenant's agents, employees, contractors,
guests and invitees shall comply with Landlord's reasonable requirements
relative thereto.
20. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion may lend
to impair the reputation of the Building or its desirability for Landlord or
other tenants. Upon written notice from Landlord, Tenant will refrain from
and/or discontinue such publicity immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance,
alterations, and improvements in the Premises only during times agreed to in
advance by Landlord and in a manner which will not interfere with the rights
of other tenants in the Building.
22. Canvassing, soliciting, and peddling in or about the Building is
prohibited. Tenant shall cooperate and use its best efforts to prevent the
same.
23. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any common area of the Building,
unless such common area has been declared a designated smoking area by
Landlord.
-2-
EXHIBIT E
PARKING AGREEMENT
Landlord shall make available to Tenant, at no cost for the initial
Lease Term (April 1, 1993 through March 31, 1998), provided Tenant is not in
default under this Lease, throughout the Term of this Lease thirty-eight (38)
parking permits (the "Permits") to allow access to the parking garage located
in the Development (the "Building Garage") which is used in connection with
the operation of the Building.(FNE.1.) In consideration therefor, Tenant
will pay to Landlord as Additional Rent and with each installment of Base
Rent due under the Lease, the Parking Charge hereinafter provided. The
Permits shall only be valid between the hours of 5:00 a.m. and 11:00 p.m
daily and between the hours of 5:00 a.m. and 11:00 p.m. on Saturdays,
Sundays, and Holidays. Except with respect to any limited reserved parking
that Landlord may establish and for which Landlord may increase the Parking
Charge, all tenant parking in the Building Garage will be on a non-reserved,
first-come, first-serve basis. Landlord may elect to establish parking zones
in the Building Garage and if Landlord so elects, the Permits may be issued
to specifically identified vehicles and the Parking Charge may relate to
specified zone(s) as determined by Landlord. If Landlord implements a system
whereby only specifically identified vehicles are granted Permits, other
vehicles shall not be permitted to use the Building Garage without Landlord's
prior written consent. Landlord reserves the right upon written notice
posted in the Garage, to change the parking system for the Building Garage to
provide special requirements for weekend, holiday or after hours usage and to
temporarily close the Building Garage, or portions thereof to make such
repairs or alterations as Landlord may deem appropriate.
In consideration for the Permits, Tenant covenants and agrees to pay to
Landlord during the initial Term of this Lease, as Additional Rental hereunder,
a parking charge (the "Parking Charge") equal to the sum of $0.00 per month
for each Permit issued to Tenant, and such Parking Charge shall be paid monthly
in advance as hereinabove provided. A pro rata portion of such Parking Charge
shall be payable for the (i) first partial calendar month of the Term of this
Lease in the event the Commencement Date occurs on a date other than the first
day of a calendar month, and (ii) for the last partial calendar month of the
Term of the Lease in the event the term hereof expires on a date other than the
last day of calendar month. The Parking Charge shall be subject to adjustment by
Landlord upon Tenant exercising the Renewal Option pursuant to Section 4. of
Exhibit F to the Lease with such adjustment to reflect Landlord's then current
market charge for parking permits in the applicable section of the Garage. Such
adjustment in the Parking Charge consistent with industry standards in
comparative building, in comparable areas, and shall become effective on the
first day of the first calendar month following the date of delivery of written
notice by Landlord to Tenant of such adjustment in the Parking Charge. Tenant's
obligation to pay the Parking Charge shall be considered an obligation to pay
Rent for all purposes hereunder and shall be secured in like manner as is
Tenant's obligation to pay Rent. Default in the payment of such Parking Charge
shall be deemed to be a default in the payment of Rent. As additional
consideration for the aforesaid Permits, Tenant hereby waives on behalf of
itself and its agents and employees all claims, whether based on negligence or
other grounds, against Landlord, its agents and employees arising out of any
loss or damage to automobiles or other property while located in the Building
Garage, or arising out of any personal injuries sustained in connection with the
use of said Building Garage, and Tenant hereby covenants and agrees to
specifically inform each of its employees and agents of the waiver of claims
herein set forth.
(E.2.)
--------------------
FN E.1. and E.2. - see page E1(a)
FN E.1. - continued from Exhibit E
Of the thirty-eight (38) Permits granted to Tenant, thirty-one (31) shall be
designated as non-reserved covered parking and seven (7) shall be designated
as covered reserved parking. Effective December 31, 1993, Landlord shall
rescind thirteen (13) of said Permits as follows: twelve (12) non-reserved
parking spaces and one (1) reserved parking space; provided, effective
January 1, 1994, and during the remaining Lease Term, Landlord shall grant to
Tenant twenty-five (25) Permits (nineteen (19) non-reserved and six (6)
reserved). Notwithstanding the foregoing, effective January 1, 1994,
Landlord shall have the right at anytime to rescind or assign to deck level
status two (2) non-reserved parking spaces and one (1) reserved parking space
of said twenty-eve (25) Permits if a) Landlord provides fifteen (15) days
written notice of its intent to rescind or assign to deck level and b) at the
time of said notice, Landlord has leased, including this Lease, ninety percent
(90%) of the Building.
FN E.2. - continued from Exhibit E
During the Lease Term, Landlord shall keep in effect a system for restricting
access to the Garage to those persons specifically authorized by Landlord to
use the Garage. The manner in which Landlord restricts access (e.g. card key
system, parking guard, etc.) shall be determined by Landlord in its
reasonable discretion. Tenant expressly acknowledges that Landlord shall not
be deemed to have warranted the efficiency of any such manner of restricting
access to the Garage and that Landlord shall not be liable in any manner for
any personal injury or property damage caused by unauthorized persons in the
Garage. Upon receipt of notice from Tenant with respect to a malfunction of
the system for restricting access to the Garage, Landlord, as part of Basic
Costs, shall take whatever action is reasonably necessary to correct such
malfunction in said system.
E1(a)
The failure to comply to timely pay the Parking Charge specified above,
or to comply with the rules and regulations governing the use of the Building
Garage, including but not limited to the rules establishing time limits on
the use of said Permits, shall entitle Landlord, in addition to any other
remedies provided hereunder, to terminate the Permits and tow any vehicles
which are in violation of said rules and regulations from the Building Garage
at the sole cost and expense od Tenant and without liability for damages
resulting therefrom.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as
of the date first written above.
LANDLORD: Xxxx/Xxxxxxx Xxxxx Real Estate
Opportunity Partners Limited
Partnership II
ATTEST: BY: EQUITY ASSETS MANAGEMENT, INC., as
agent
/s/ XXXXXXX XXXXX By: /s/ XXXXXXX XXXX
---------------------------- -------------------------------
Name (print): XXXXXXX XXXXX Name: XXXXXXX XXXX
--------------- -----------------------------
Title: VICE PRESIDENT
---------------------------- ----------------------------
Name (print):
---------------
TENANT:
ATTEST: Lafarge Corporation
/s/ XXXXXXX XXXXXX By: /s/ XXXXXX XXXXXX
----------------------------- ------------------------------------
Name (print): XXXXXXX XXXXXX Name: XXXXXX XXXXXX
--------------- ----------------------------------
/s/ XXXXXX X. XXXXXX Title: PRESIDENT, LAFARGE CONSTRUCTION
----------------------------- MATERIALS, SOUTHERN U.S. REGION
Name(print): XXXXXX X. XXXXXX ---------------------------------
----------------
-2-
EXHIBIT "F"
ADDITIONAL TERMS
This Exhibit is attached to and made a part of the Lease dated February
26, 1993 by and between Xxxx\Xxxxxxx Xxxxx Real Estate Opportunity Partners
Limited Partnership II, ("Landlord") by its agent Equity Assets Management,
Inc. and Lafarge Corporation ("Tenant") for space in the Building located at
00000 X. Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx.
1. RIGHT OF FIRST OFFER.
A. During the Offering Period (hereinafter defined), Tenant shall have the
right of first offer (the "ROFO") with respect to the 1,980 rentable square
feet on the second (2nd) floor of the Building shown cross-hatched on the
demising plan attached hereto as Exhibit F-1 ("Offering Space"), which ROFO
shall be exercised as follows: when Landlord has a prospect (the "Prospect")
interested in leasing the Offering Space, Landlord shall advise Tenant, in
substantially the same form as set forth on Exhibit F-2 (the "Advice"), of
the terms under which Landlord is prepared to lease the Offering Space to
Tenant for the remainder of the Lease Term, which terms shall reflect the
prevailing market rate (as defined below) for the Offering Space as
reasonably determined by Landlord. Tenant may lease such Offering Space in
its entirety only, under such terms, by executing and delivering to Landlord
the notice of exercise portion of the Advice ("Notice of Exercise") within
ten (10) days after the date of the Advice. For purposes hereof, the
"Offering Period" shall mean the period beginning on the date hereof and
ending on March 31, 1995. Notwithstanding the foregoing, Tenant shall have no
right to lease Offering Space hereunder and Landlord need not provide Tenant
with an Advice, if:
1. Tenant is in default under the Lease at the time Landlord would
otherwise deliver the Advice; or
2. the Premises, or any portion thereof, is sublet to a non-Affiliate
at the time Landlord would otherwise deliver the Advice; or
3. the Lease has been assigned to a non-Affiliate at the time Landlord
would otherwise deliver the Advice; or
4. Tenant or its Affiliates are not occupying the Premises under this
Lease at the time Landlord would otherwise deliver the Advice; or
5. Offering Space is not intended, at the time the Notice of Exercise
is given, for the exclusive use of Tenant or its Affiliates during the
Lease Term.
B. If Tenant is entitled to and appropriately exercises its ROFO, Landlord
shall prepare an amendment (the "Offering Amendment") adding the Offering
Space to the Premises on the terms set forth in the Advice and reflecting the
changes in the Base Rental, Rentable Area of the Premises, Tenant's Pro Rata
Share and other appropriate terms. Tenant shall execute and deliver the
Offering Amendment to Landlord within ten (10) days of the submission of such
Offering Amendment by Landlord to Tenant.
C. Offering Space (including improvements and personalty, if any) shall be
accepted by Tenant in its condition and as-built configuration existing on
the earlier of the date Tenant takes possession of Offering Space or as of
the date the term for Offering Space commences. The term for the Offering
Space shall commence upon the date set forth in the Advice and thereupon
Offering Space shall be considered a part of the Premises, provided that all
of the terms stated in the Advice shall govern Tenant's leasing of the
Offering Space and only to the extent that they do not conflict with the
Advice, the terms and conditions of this Lease shall apply to the Offering
Space.
1
D. The rights of Tenant hereunder shall terminate on the earliest to occur
of 1) March 31, 1995, 2) the date on which Tenant executes the rejection
portion of the Advice and 3) ten (10) days after the date of the Advice. If
Landlord has a Prospect for Offering Space during the Offering Period and
Landlord is not obligated to send Tenant an Advice under paragraph A above,
Landlord may lease Offering Space to the Prospect or any other prospective
tenant on whatever terms Landlord deems appropriate and Tenant shall have no
further rights with respect to such Offering Space. Notwithstanding the
foregoing, if (i) Tenant was entitled to exercise its Right of First Offer,
but failed to provide Landlord with a Notice of Exercise within the ten (10)
day period provided in paragraph A above, and (ii) Landlord does not enter
into a lease for Offering Space with the Prospect or any other prospect
within a period of six (6) months following the date of the Advice, Tenant
shall once again have a Right of First Offer with respect to Offering Space.
E. For the purposes hereof, "prevailing market rate" means the rate charged
in leases and amendments entered into within six (6) months prior to the date
prevailing market rate is being determined in the Building and comparable
buildings taking into consideration not only the rental rate but length of
term, tenant improvements allowances, expense pass throughs, relocation costs
and other concessions allowed to tenant.
2. RENEWAL OPTION.
A. Tenant shall have the option to extend the Termination Date ("Renewal
Option") from March 31, 1998 to March 31, 2003 (the period beginning April 1,
1998 and ending March 31, 2003 is referred to herein as the "Renewal Term"),
if:
1. Landlord receives notice of exercise ("Renewal Notice") on or before
June 30, 1997;
2. Tenant is not in default under this Lease at the time Landlord
receives the Renewal Notice;
3. no part of the Premises is sublet to a non-affiliate at the time
Landlord receives the Renewal Notice;
4. this Lease has not been assigned to a non-affiliate at the time
Landlord receives the Renewal Notice;
5. Tenant executes and returns the "Renewal Amendment" (subsection C)
within fifteen (15) days of its submission to Tenant.
B. The annual Base Rental rate for the Premises during the Renewal Term
shall equal the prevailing market rate for the first class office space of
equivalent quality, size, utility and location in Dallas, Texas. Landlord and
Tenant shall negotiate in an effort to mutually agree as to the Base Rental
for the Renewal Term. If Landlord and Tenant have not agreed upon Base
Rental for the Renewal Term within one hundred eighty (180) days prior to the
commencement of such Renewal Term, either party, by written notice to the
other given within fifteen (15) days after the expiration of the one hundred
eighty (180) day period, shall have the right to require Base Rental to be
determined in accordance with the arbitration process provided below. If
neither party makes such election within fifteen (15) days, Tenant's Option to
Renew shall be deemed to be null and void and of no further force and effect.
The arbitration process for the determination of Base Rental is as follows:
(1) Landlord and Tenant shall each appoint a real estate appraiser
who is familiar with rental values for properties in the vicinity of the
Building. Each party will make the appointment no later than ten (10) days
after receipt of notice from the other party that the appraisal process
described in this paragraph 2.B had been invoked. The agreement of the two
(2) appraisers as to the Base Rental for the Renewal Term will be binding
upon Landlord and Tenant. If the two (2) appraisers cannot agree upon the
Base Rental within ten (10) days following their appointment, they shall
within another ten (10) days agree upon a third real estate appraiser.
Immediately thereafter, each of
2
the first two (2) appraisers will submit his best estimate of the
appropriate Base Rental for the Renewal Term (together with a written
report supporting such estimate) to the third appraiser and the third
appraiser will choose between the two estimates. The estimate of Base
Rental chosen by the third appraiser as the closest to the prevailing
market rental rates will be bind upon Landlord and Tenant. Notification
in writing of this estimate shall be made to Landlord and Tenant within
fifteen (15) days following the selection of the third appraiser.
(2) If appraisers must be selected under the procedure set out
above and either Tenant or Landlord fails to appoint an appraiser or
fails to notify the other party of such appointment within three (3)
days after receipt of notice that the prescribed time for appointing
the appraiser has passed, then the other party's appraiser will determine
the Base Rental for the Renewal Term. All appraisers selected for the
appraisal process set out in this paragraph 2.B will be disinterested,
reputable, qualified real estate appraisers with the designation of MAI
or equivalent and with at least five (5) years experience in appraising
properties comparable to the Building.
(3) If a third appraiser must be chosen under the procedure set out
above he will be chosen on the basis of objectivity and competence, not on
the basis of his relationship with the other appraisers or the parties of
this Lease, and the first two (2) appraisers will be so advised. Although
the first two (2) appraisers will be instructed to attempt in good faith
to agree upon the third appraiser, if attempt in good faith to agree upon
the third appraiser, if for any reason they cannot agree within the
prescribed time, either Landlord or Tenant may require the first two (2)
appraisers to immediately submit its top choice for the third appraiser
to the then highest ranking officer of the Dallas Bar Association who will
agree to help and who has no attorney/client or other significant
relationship to either Landlord or Tenant. Such officer will have complete
discretion to select the most objective and competent third appraiser from
between the choice of each of the first two (2) appraisers, and will do so
within twenty (20) days after such choice are submitted to him.
(4) Either Landlord or Tenant may notify the appraiser selected by
the other party to demand the submission of an estimate of Base Rental or
a choice of a third appraiser as required under the procedure described
above; and if the submission of such an estimate or choice is required and
the other party's appraiser fails to comply with the demand within five (5)
days after receipt of such notice, then the Base Rental or choice of the
third appraiser, as the case may be, selected by other appraiser (i.e.,
the notifying party's appraiser) will be binding upon Landlord and Tenant.
(5) Landlord and Tenant shall each bear the expense of the appraiser
appointed by it, and the expense of the third appraiser and of any officer
of the Dallas Bar Association who participates in the appraisal process
described above will be shared equally by Landlord and Tenant.
(6) For the purposes hereof, "prevailing market rate" means the rate
charged in leases and amendments entered into within six (6) months prior
to the date prevailing market rate is being determined in the Building and
comparable buildings taking into consideration not only the rental rate but
length of term, tenant improvements allowances, expense pass throughs,
relocation costs and other concessions allowed to tenant; and all
appraisers and other persons involved in the determination of the Base
Rental for a Renewal Term will be so advised.
Tenant shall pay Basic Costs during the Renewal Term based on increases in
excess of the Base Year. (The first year of the Renewal Term shall be the
Base Year for the Renewal Term.) The Parking Charges for the Permits granted
to Tenant in accordance with Exhibit E to the Lease shall equal the
prevailing market rate charged by Landlord for reserved and non-reserved
parking in the Building, as the case may be.
3
C. If Tenant properly exercised this Renewal Option, Landlord shall prepare
the Renewal Amendment to reflect changes in Base Rental, monthly installments
of Base Rental, Base Year, Termination Date and other appropriate terms. A
copy of the Renewal Amendment shall be:
1. sent to Tenant within a reasonable time after receipt of the Renewal
Notice; and
2. executed by Tenant and returned to Landlord in accordance with
subsection 2.A.5 above.
3. AMERICANS WITH DISABILITY ACT. Landlord shall be responsible for
complying with Title III of the Americans with Disabilities Act (ADA) with
respect to the Common Areas of the Building. Notwithstanding the foregoing,
Landlord shall have the right to contest any alleged violation in good faith,
including, without limitation, the right to apply for and obtain a waiver or
deferment of compliance, the right to assert any and all defenses allowed by
law and the right to appeal any decisions, judgments or rulings to the
fullest extent permitted by law. Landlord, after the exhaustion of any and
all rights to appeal or contest, will make all repairs, additions,
alterations or improvements necessary to comply with the terms of any final
order or judgment, provided that if Landlord elects not to contest any
alleged violation, Landlord will promptly make all repairs, additions,
alterations or improvements necessary to comply with the notice of violation.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit F
as of the date first written above.
LANDLORD: Xxxx\Xxxxxxx Xxxxx Real Estate
Opportunity Partners Limited Partnership II
ATTEST: BY: EQUITY ASSETS MANAGEMENT,INC., as agent
/s/ XXXXXXX XXXXX By: /s/ XXXXXXX XXXX
---------------------------- -----------------------------------------
Name (print): XXXXXXX XXXXX Name: XXXXXXX XXXX
--------------- ---------------------------------------
Title: VICE PRESIDENT
---------------------------- --------------------------------------
Name (print):
---------------
TENANT: Lafarge Corporation, a Maryland
Corporation
ATTEST:
/s/ XXXXXXX XXXXXX By: /s/ XXXXXX XXXXXX
---------------------------- -----------------------------------------
Name (print): XXXXXXX XXXXXX Name: XXXXXX XXXXXX
-------------- ---------------------------------------
/s/ XXXXXX X. XXXXXX Title: PRESIDENT, LAFARGE CONSTRUCTION
---------------------------- MATERIALS, SOUTHERN U.S. REGION
XXXXXX X. XXXXXX -------------------------------------
-----------------------
4
EXHIBIT F-1
OFFERING SPACE
[MAP]
Exhibit F-2
TO: DATE:
ADVICE
RE: Lease (the "Lease" dated _________________ by and between Equity
Assets Management, Inc. as Agent, and __________________________,
for space in the Building located at ____________________________
Pursuant to the teams of the Lease, Tenant is hereby notified that the ______
_________ square feet on the ____ floor of the Building (as shown cross-
hatched on the demising plan attached hereto as Exhibit 1) is available for
lease to Tenant under the following conditions:
1. BASERENT: 4. EXPENSE ESCALATION:
a. total: 5. TAX ESCALATION:
b. monthly: 6. SECURITY DEPOSIT:
2. TERM: 7. RENT CREDITS:
a. commencement date: 8. CONSTRUCTION:
b. expiration date:
3. CPI OR OTHER FINANCIAL ESCALATION:
Accordingly, under the terms of the Lease, Tenant has the period stated in
Section 1.A. of Exhibit F of the Lease to exercise its right of first offer.
EQUITY ASSETS MANAGEMENT, INC., as
agent
BY:
-------------------------------
NOTICE OF EXERCISE
Tenant hereby accepts the above tender of the space (as shown on the demising
plan attached hereto as Exhibit 1) and exercises its right to lease such
space. This acceptance and exercise shall authorize Equity Assets Management,
Inc. to forthwith prepare an amendment in accordance with Exhibit F of the
Lease for execution by Tenant.
TENANT:
----------------------------------
DATED: BY:
-------------------- -------------------------------
Its:
------------------------------
JCSROFO.5
04/22/92 1
REJECTION
Tenant hereby acknowledges the above tender of the space (as shown on the
demising plan attached hereto as Exhibit 1) and hereby declines to lease said
space.
TENANT:
----------------------------------
DATED: BY:
-------------------- -------------------------------
Its:
------------------------------
JCSROFO.5
04/22/92 2
EXHIBIT G
HVAC Specifications
1. Heating, Ventilating and Air Cooling: Landlord shall, in accordance with
the Lease, furnish, install, maintain and operate the integrated heating
and cooling system consisting of variable air volume boxes, supply
diffusers, return air light fixtures, and pneumatic thermostats to
provide, in accordance with the working drawings of Tenant, cooling,
dehumidification, ventilation and heating with capacity to produce the
following results effective during normal operating hours established by
the Lease and within tolerances normal in comparable office buildings:
a. Heating capable of maintaining inside space conditions of not less
than 70 degrees Fahrenheit when the outside air temperature is not
less than 18 degrees Fahrenheit dry bulb;
b. Air cooling capable of maintaining inside space conditions of 75
degrees Fahrenheit dry bulb and 55% relative humidity when outside
conditions are 102 degrees Fahrenheit dry bulb and 78 degrees Fahrenheit
wet bulb.
The foregoing is based upon occupancy density of not more than one (1) person
for each one hundred fifty (150) square feet of floor area within the
Premises and a maximum electric lighting and office machine load of three and
one half (3.5) xxxxx per square foot of floor area within the Premises. The
HVAC system on the 2nd floor shall be divided into a minimum of 16 zones per
floor which can be separately regulated.
LAFARGEX.G 1
EXHIBIT H
JANITORIAL SERVICE
I. General Cleaning (Nightly)
A. Sweep all hard surface floors nightly and damp mop as needed but at
least once a week.
B. Vacuum all carpeted areas and rugs, moving light furniture other than
desks, file cabinets, etc.
C. Empty, clean and wipe as needed, all wastepaper baskets, ash trays,
receptacles, etc.
D. Clean all cigarette urns nightly, and replace sand or water.
E. Remove wastepaper and waste materials to a designated area.
F. Dust, wipe and clean all furniture, fixtures, telephones and window
xxxxx.
G. Wipe clean all glass furniture tops.
H. Dust all baseboards as needed but at least once a month.
I. Dust all vinyl, plastic or leather covered chairs. Wipe and clean and
hand vacuum as needed but at least once every two weeks.
J. Wipe and clean glass partitions as required but no less than once a
month.
K. Buff all hard surface floors once a week.
L. Clean all elevator tracks as needed.
M. Wipe and clean all water fountains and apply stainless finish.
N. Keep service corridors on each floor, including lobby, in clean and
orderly condition.
O. Clean kitchen appliances, including but not limited to, microwave
oven, coffee makers, ice makers, beverage dispensers and refrigerator
(exterior only).
II. Lavatories (Nightly)
A. Sweep and damp mop all flooring.
B. Wipe clean all mirrors, counter tops, chrome fixtures, etc.
C. Wipe clean with disinfectant all toilets, toilet seats, piping, etc.
D. Wipe clean all toilet tissue, soap, towel and sanitary napkin
dispensers and disposal units.
E. Wash all basins, bowls and urinals, and disinfect.
F. Wipe clean all partitions, tiles and vinyl walls, enamel surfaces and
dispensers and receptacles, using proper disinfectant.
G. Empty and clean paper towel and sanitary napkin disposal receptacles.
H. Fill toilet tissue holders, soap dispensers, and tower dispensers.
I. Remove waste paper and refuse to a designated area.
III. High Dusting - Office Area.
Do all high dusting at least once in a month, including the following
areas:
A. Dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
B. Dust all vertical surfaces such as walls, partitions, ventilating
louvers, fresh air grills and others not reached in nightly cleaning.
C. Dust exterior surfaces of all lighting fixtures.
D. Dust all window frames.
E. Vacuum exterior window drapes, or venetian blinds.
IV. Periodic Cleaning - Office Area.
A. Wipe and clean all interior metal as necessary.
B. Clean all interior glass as needed.
C. Dust all door louvers and other ventilating louvers within reach, as
necessary.
D. Remove all fingermarks, smudges and other marks from metal partitions
and other surfaces as necessary.
E. Clean all office doors as necessary, using clear water or approved
cleaner.
F. Strip and apply floor finish to resilient tile floors in demised
premises once every three months; buff after application of floor
finish.
V. Special Services (available upon Tenant's written request and at Tenant's
expense. Landlord reserves the right for Tenant to be billed directly by
the janitorial vendor).
A. Wash dishes, glasses, silverware and other eating or drinking
utensils. Load such utensils, where suitable, and activate the
dishwasher. If the utensils exceed the capacity of one load, load,
activate and remove the first load following cleaning; then, load
and activate the remainder of the utensils. This service shall be
provided at Tenant's expense at the prevailing quote by the janitorial
vendor, currently quoted at $100.00 per month.
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (Sublease") is made and entered into as of the 6th
day of December, 1994, between Lafarge Corporation, a Maryland corporation
(hereinafter called "Sublessor"), and The Management Alliance Corporation, a
Texas corporation (hereinafter called "Sublessee"):
ARTICLE I
PRIME LEASE
1.01 SUBLEASE SUBJECT TO PRIME LEASE. This Sublease is subject and
subordinate to that certain Office Lease Agreement (hereinafter called the
"Prime Lease") dated February 26, 1993 and executed by and between
Xxxx/Xxxxxxx Xxxxx Real Estate Opportunity Partners Limited (hereinafter
called the "Prime Lessor"), as lessor and Sublessor, as lessee, a copy of
which is attached hereto as EXHIBIT A and made a part hereof for all purposes
as if fully set forth herein.
1.02 COMPLIANCE WITH PRIME LEASE. With the exception of the obligation
to pay Base Rental pursuant to Section V.A. of the Prime Lease and to pay
Additional Base Rental pursuant to Section V.A. thereof, Sublessee hereby
covenants and agrees to comply with and perform, and does hereby assume, all
obligations of Sublessor under the Prime Lease including, without limitation,
all repair obligations, all insurance obligations, all obligations to pay
utility charges and taxes, and all indemnification obligations of Sublessor
thereunder, and any liability accruing from failure to pay same when due
thereunder. Sublessee agrees that whenever the consent of Prime Lessor is
required under the terms of the Prime Lease with respect to any action,
Sublessee shall obtain the consent of Sublessor and of Prime Lessor prior to
taking such action. Sublessee hereby covenants and agrees to promptly deliver
to Sublessor copies of any and all notices or other correspondence received by
Sublessee from Prime Lessor that might affect Sublessor in any manner and
further agrees, notwithstanding Section 9.04 to the contrary, to so deliver
same in the manner most appropriate to insure that Sublessor will be able to
respond to any of such notices or other correspondence from the Prime Lessor
within any time periods set forth in the Prime Lease.
1.03 SERVICES. Sublessee hereby acknowledges and agrees that the only
services, amenities and rights to which Sublessee is entitled under this
Sublease are those to which Sublessor is entitled under the Prime Lease
(subject to all the provisions, restrictions and conditions imposed in the
Prime Lease). Sublessor shall in no event be liable to Sublessee for Prime
Lessor's failure to provide any such services, amenities and rights nor shall
any such failure be construed as a breach hereof by Sublessor or an eviction
of Sublessee or entitle Sublessee to an abatement of any of the rentals under
this Sublease, except and only to the extent that Sublessor receives an
abatement under the Prime Lease with respect thereto.
1.04 EXERCISE OF RIGHTS AND REMEDIES UNDER PRIME LEASE. Sublessee shall
not have the right to exercise any of Sublessor's options or elections
permitted or authorized under the Prime Lease, or to institute any action or
proceeding against Prime Lessor for the enforcement of the Prime Lease. If
Prime Lessor shall default in the performance of any of its obligations under
the Prime Lease, Sublessor shall, upon the written request of Sublessee and at
Sublessee's sole cost and expense, use its diligent good faith efforts to
enforce the Prime Lease and obtain Prime Lessor's compliance with its
obligations thereunder.
ARTICLE II
DEMISE AND DESCRIPTION
2.01 DEMISE OF LEASED PREMISES. Subject to and upon the terms and
conditions set forth herein, Sublessor hereby subleases to Sublessee, and
Sublessee hereby subleases from Sublessor for the term herein set forth, all of
Sublessor's right, title and interest in and to the use and occupancy of the
premises leased by Sublessor under the Prime Lease, same being approximately
7,041 square feet of rentable area located on the second floor in the building
known as North Central Plaza Three Building, as shown outlined on Exhibit A to
the Prime Lease (herein called the "Leased Premises").
2.02 CONDITION OF THE LEASE PREMISES. Tenant acknowledges and agrees that
it has inspected the Leased Premises and agrees to accept same in its present
condition, "AS IS" and "WITH ALL FAULTS".
2.03 DISBURSEMENT OF THE FINISH ALLOWANCE. Landlord hereby agrees to
provide Sublessee with a finish allowance of up to 3.50 per square foot of
rentable area in the Premises (the "Finish Allowance") to reimburse Sublessee
for all costs incurred by Sublessee in connection with the construction of
Sublessee's Improvements. The Finish Allowance shall (subject to the
remaining provisions of this Section) be disbursed by Sublessor, from time to
time, (but no more than once weekly) in an amount equal to the invoices and/or
statements submitted to Sublessor and for which Sublessee has not been
previously reimbursed or sought reimbursement. Sublessor shall make
disbursements from the Finish Allowance within three (3) days after receipt of
(i) a request for reimbursement from Sublessee setting forth the amount sought
to be reimbursed, (ii) acceptable invoices and statements supporting the
amount requested by Sublessee and (iii) fully executed and acknowledged
releases and waivers of liens and claims (to the extent of work theretofore
performed), in form acceptable to Sublessor, from each of Sublessee's
contractors and suppliers that is to receive any portion of the amount
requested. Notwithstanding the foregoing, Sublessor shall not be required to
pay any installment if any of Sublessee's Contractors or their respective
subcontractors, suppliers and materialmen file or have given notice of intent
to file a lien against the premises and/or the Building.
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2.04 DISCLAIMER OF WARRANTIES. SUBLESSEE ACKNOWLEDGES THAT NEITHER
SUBLESSOR NOR PRIME LESSOR HAS MADE OR WILL MAKE ANY WARRANTIES TO SUBLESSEE
WITH RESPECT TO THE QUALITY OF CONSTRUCTION OF ANY LEASEHOLD IMPROVEMENTS OR
TENANT FINISH WITHIN THE LEASED PREMISES OR AS TO THE CONDITION OF THE LEASED
PREMISES, EITHER EXPRESS OR IMPLIED, AND THAT SUBLESSOR AND PRIME LESSOR
EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE LEASED PREMISES ARE OR WILL
BE SUITABLE FOR SUBLESSEE'S INTENDED COMMERCIAL PURPOSES. EXCEPT AS EXPRESSLY
PROVIDED IN SECTION 1.04 HEREOF, SUBLESSEE'S OBLIGATION TO PAY RENTALS UNDER
THIS SUBLEASE IS NOT DEPENDENT UPON THE CONDITION OF THE LEASED PREMISES OR
THE BUILDING (NOW OR IN THE FUTURE) OR THE PERFORMANCE BY PRIME LESSOR OF ITS
OBLIGATIONS UNDER THE PRIME LEASE, AND SUBLESSEE SHALL CONTINUE TO PAY THE
RENTALS HEREUNDER WITHOUT ABATEMENT, SETOFF OR DEDUCTION NOTWITHSTANDING ANY
BREACH BY SUBLESSOR OF ITS DUTIES OR OBLIGATIONS HEREUNDER OR BY PRIME LESSOR
OF ITS DUTIES OR OBLIGATIONS UNDER THE PRIME LEASE, WHETHER EXPRESS OR IMPLIED.
ARTICLE III
TERM; SURRENDER OF POSSESSION
3.01 TERM. Unless the Prime Lease is terminated sooner pursuant to the
terms thereof, the term of this Sublease ("Term") shall be for the period
commencing on January 1, 1995, and ending on March 30, 1998. Sublessee shall
have access to the Premises for the purpose of constructing Sublessee's
improvements on December 9, 1994. The terms and provisions of this Sublease
Agreement shall be in full force and effect except that rent shall not be
accruing.
3.02 SURRENDER OF THE LEASED PREMISES. At the termination of this
Sublease, by lapse of time or otherwise, sublessee shall deliver up the Leased
Premises to Sublessor in as good condition as existed on the date of
possession by Sublessee, ordinary wear and tear only excepted. Upon such
termination of this Sublease, Sublessor shall have the right to re-enter and
resume possession of the Leased Premises.
3.03 HOLDING OVER. In the event of holding over by Sublessee after
expiration or termination of this Sublease without the prior written consent
of Sublessor, Sublessee shall pay as liquidated damages the greater of (i)
double the amount of all base rental and additional rental which was payable
by Sublessee immediately prior to such expiration or termination, and (ii) the
then current market rental for the Leased Premises, pro rated on a daily basis
for the entire holdover period.
ARTICLE IV
RENT
4.01 BASE RENTAL. Sublessee hereby agrees to pay an annual base rental of
Nine and 50/100 Dollars ($9.50) per square foot of net rentable area within the
Leased Premises (net rentable area shall be deemed to be 7,041 square feet).
Sublessee shall pay
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such base rental to Sublessor monthly without demand, for each and every month
during the Term, in installments of Five Thousand Five Hundred Seventy-Four
and 13/100 Dollars ($5,574.13) each. The rent for the first month shall be due
on the date hereof.
4.02 ADDITIONAL BASE RENTAL. Sublessee shall also pay to Sublessor
monthly as additional rental the amount of any Additional Base Rental charged
to Sublessor pursuant to Section V.A. of the Prime Lease for any month during
the Term, if such Additional Base Rental were calculated on a Base Year of
1995 from the reports of Basic Costs provided by Prime Lessor to Sublessor.
Upon request of Sublessee, Sublessor will provide Sublessee with copies of
statements received by Sublessor from Prime Lessor with respect to the payment
of Additional Base Rental under the Prime Lease. Within thirty (30) days
following Sublessor's receipt from Prime Lessor of the final reconciliation of
the annual Additional Base Rental pursuant to Section V.A. of the Prime Lease
for each year during the Term, Sublessor and Sublessee shall likewise
reconcile the additional rental payable by Sublessee pursuant to this Section
4.02 so that Sublessee shall pay the amount, and only the amount, of the
actual Additional Base Rental charged to Sublessor for such year and
calculated on a Base Year of 1995.
4.03 PAYMENT OF RENTALS. Each monthly installment of base rental and
additional rental due to Sublessor under this Sublease shall be payable by
Sublessee on the first day of each calendar month at Sublessor's address herein
set forth or at such other place as Sublessor shall designate in writing from
time to time. If less than all of any calendar month or year occurs during the
Term, rents for such partial month or year shall be prorated (at the per diem
rate of $185.80) based on the actual number of days during such month or year
occurring within the Term.
ARTICLE V
QUIET ENJOYMENT
5.01 COVENANT OF QUIET ENJOYMENT. Provided Sublessee has performed all
of the terms, covenants, agreements and conditions of this Sublease, including
the payment of rental and all other sums due hereunder, Sublessee shall
peaceably and quietly hold and enjoy the Leased Premises against Sublessor and
all persons claiming by, through or under Sublessor, for the term herein
described, subject to the provisions and conditions of this Sublease and of
the Prime Lease. Sublessor shall timely pay to Prime Lessor all payments of
Base Rental and Additional Base Rental paid to Sublessor by Sublessee; and,
Sublessor shall timely pay to Prime Lessor the difference between Base Rental
and Additional Base Rental under the Prime Lease and Base Rental and
Additional Base Rental under this Sublease.
5.02 LIMITATION. It is understood and agreed that the provision of
Section 5.01 and any and all other covenants of Sublessor contained in this
Sublease shall be binding upon Sublessor and its successors only with respect
to breaches
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occurring during its and their respective ownership of the Sublessor's interest
hereunder. This Sublease is subject to and subordinate to all matters of public
record in Dallas, Texas.
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.01 RESTRICTION. Sublessee shall not, without the prior written
consent of Sublessor, assign, transfer, mortgage, pledge, hypothecate or
encumber this Sublease or any interest herein or sublet the Leased Premises or
any part thereof, or permit the use of the Leased Premises by any party other
than Sublessee. Any such assignment or subletting without such consent by
Sublessor shall be void. Any such consent by Sublessor to any such assignment
or subletting shall not release Sublessee from any of Sublessee's obligations
hereunder or be deemed to be a consent to any subsequent assignment,
subletting, occupation or use by another person.
6.02 CONSENT DISCRETIONARY. Sublessor's consent to any proposed
assignment or subletting may be withheld at the sole and absolute discretion
of Sublessor, or may be given subject to the further consent of Prime Lessor.
ARTICLE VII
INDEMNIFICATION AND EXCULPATION
7.01 INDEMNITY. Sublessee shall indemnify Sublessor for and hold
Sublessor harmless from and against all costs, expenses (including reasonable
attorneys' fees), fines, suits, claims, demands, liabilities and actions
resulting from any breach, violation or nonperformance of any covenant or
condition hereof or from the use or occupancy of the Leased Premises by
Sublessee or Sublessee's employees, agents, contractors, licensees and
invitees.
7.02 EXCULPATION. Sublessor shall not be liable to Sublessee or
Sublessee's employees, agents, contractors, licensees or invitees for any
damage to person or property resulting from any act or omission of any visitor
to the Leased Premises except as Sublessor's own negligence may contribute
thereto.
ARTICLE VIII
DEFAULTS AND REMEDIES
8.01 DEFAULT BY SUBLESSEE: REMEDIES OF SUBLESSOR. In case of any breach
hereof by Sublessee, in addition to all other rights of Sublessor hereunder or
available to Sublessor at law or equity, Sublessor shall have all the rights
against Sublessee as would be available to the Prime Lessor against Sublessor
under the Prime Lease if such breach were by Sublessor thereunder. If Sublessee
defaults in the performance of any of the terms and provisions hereof and
Sublessor places the enforcement of this Sublease in the hands of an attorney,
Sublessee agrees to
5
reimburse Sublessor for all reasonable expenses incurred by Sublessor as a
result thereof including, but not limited to, reasonable attorneys' fees.
8.02 LIEN FOR RENT. In consideration of the mutual benefits arising
under this Lease, Sublessee hereby grants to Sublessor a lien and security
interest on all property of Sublessee now or hereafter placed in or upon the
Leased Premises, and such property shall be and remain subject to such lien
and security interest of Sublessor herein. The provisions of this paragraph
relating to said lien and security interest shall constitute a security
agreement under the Uniform Commercial Code so that Sublessor shall have and
may enforce a security interest on all property of Sublessee now or hereafter
placed in or on the Leased Premises, including but not limited to all
fixtures, machinery, equipment, furnishings and other articles of personal
property now or hereafter placed in or upon the Leased Premises, and such
property shall be and remain subject to such lien and security interest of
Sublessor herein. The provisions of this paragraph relating to said lien and
security interest shall constitute a security agreement under the Uniform
Commercial Code so that Sublessor shall have and may enforce a security
interest on all property of Sublessee now or hereafter placed in or on the
Leased Premises, including but not limited to all fixtures, machinery,
equipment, furnishings and other articles of personal property now or
hereafter placed in or upon the Leased Premises by Sublessee. Sublessee
agrees to execute as debtor such financing statement or statements as
Sublessor may now or hereafter reasonably request in order that such security
interest on interests may be protected pursuant to said Code. Sublessor may
at its election at any time file a copy of this Lease as a financing
statement. Sublessor, as secured party, shall be entitled to all of the
rights and remedies afforded a secured party under said Code in addition to
and cumulative of the Sublessor's liens and rights provided by law or by the
other terms and provisions of this Lease.
8.03 SECURITY DEPOSIT. As additional security for the faithful
performance by Sublessee of all of the terms and conditions upon Sublessee's
part to be performed, Sublessee has deposited with Sublessor a security
deposit (the "Security Deposit") in the amount of $5,574.13. Such amount
shall be returned to Sublessee, without interest, on the day herein set forth
for the expiration of the Lease Term if Sublessee has fully and faithfully
carried out all of the terms, covenants and conditions on its part to be
performed. Sublessor shall not be required to keep the Security Deposit
separate from its general funds. Sublessor may, from time to time, without
prejudice to any other remedy, use the Security Deposit to the extent
necessary to make good any arrearages of Base Rental or Additional Base
Rental, or to satisfy any other covenant or obligation of Sublessee hereunder,
and Sublessee shall pay to Sublessor on demand a sum sufficient to restore the
Security Deposit to its original amount, and upon the failure of Sublessee to
do so, Sublessor may exercise any of the remedies available to
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it. Sublessee further covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited herein as security and that
neither sublessor nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance. In
the absence of evidence satisfactory to Sublessor of an assignment of the
right to receive the Security Deposit or the remaining balance thereof,
Sublessor may return the security Deposit to the original Sublessee,
regardless of one or more assignments of this Sublease by Sublessee.
ARTICLE IX
MISCELLANEOUS
9.01 AMENDMENT. No amendment, modification or alteration of the terms
hereof shall be binding unless the same shall be in writing, dated subsequent
to the date hereof and duly executed by the parties hereto.
9.02 HEADINGS; INTERPRETATION. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Sublease. Whenever the context of this Sublease requires,
words used in the singular shall be construed to include the plural and vice
versa and pronouns of whatsoever gender shall be deemed to include and
designate the masculine, feminine or neuter gender.
9.03 COUNTERPARTS. For the convenience of the parties, any number of
counterparts of this Sublease may be executed by one or more parties hereto and
each such executed counterpart shall be, and shall be deemed to be, an original
instrument.
9.04 NOTICES. Subject to Article 1.02 hereof, all notices, consents,
requests, instructions, approvals and other communications provided for herein
and all legal process in regard hereto shall be validly given, made or served,
if in writing and delivered personally or sent by United States certified or
registered mail, postage prepaid, return receipt requested, if to:
Sublessor:
Lafarge Corporation
00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx,
Vice President-Legal Affairs
With a copy to:
Xxxxxxx X. Xxxxxx
Xxxxxxxx & Xxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, #0000
Xxxxxx, XX 00000
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Sublessee:
Xxxx Xxxxxx, President
The Management Alliance Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000 Xxxx
Xxxxxx, Xxxxx 00000
with a copy to:
M. Xxx Xxxxxxx
Diversified Human Resources Group, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
or to such other addresses as any party hereto may, from time to time,
designate in writing delivered in a like manner.
9.05 SUCCESSORS AND ASSIGNS. This sublease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns in accordance with the terms of this Sublease.
9.06 TIME OF THE ESSENCE. Time is of the essence in the performance by
Sublessee of its obligations hereunder.
9.07 BROKERAGE COMMISSIONS. Sublessor has agreed to pay a brokerage
commission to Xxxxx Associates ("Broker") pursuant to a separate agreement
between Sublessor and Broker. Xxxxx Associates has agreed to pay a brokerage
commission to Xxxx Xxxxxx ("Sublessee's Broker") pursuant to a separate
agreement between Broker and Sublessee's Broker. Sublessor and Sublessee
hereby represent and warrant each to the other that they have not employed any
agents, brokers or other such parties in connection with this Sublease other
than Broker and Sublessee's Broker, and each agrees that they shall hold the
other harmless from and against any and all claims of all other agents,
brokers or other such parties claiming by, through or under the respective
indemnifying party.
9.08 WAIVER OF LIEN BY SUBLESSEE. Sublessee shall have no right, and
Sublessee hereby waives and relinquishes all rights which Sublessee might
otherwise have, to claim any nature of lien against the Complex or to withhold,
deduct from or offset against any Rent or other sums to be paid to Sublessor by
Sublessee, except as expressly provided under this Sublease.
9.09 REMEDIES CUMULATIVE; APPLICABLE LAW. All rights and remedies of
Sublessor under this Sublease shall be cumulative and none shall exclude any
other rights or remedies allowed by law; and this Sublease is declared to be a
Texas contract, and all of the terms thereof shall be construed according to the
laws of the State of Texas.
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9.10 ENTIRE AGREEMENT. The terms and provisions of all Schedules and
Exhibits described herein and attached hereto are hereby made a part hereof
for all purposes. This Sublease constitutes the entire agreement of the
parties with respect to the subject matter hereof, and all prior
correspondence, memoranda, agreements or understandings (written or oral) with
respect hereto are merged into and superseded by this Sublease.
9.11 AUTHORITY. Sublessee warrants, represents and covenants that (a)
it is a duly organized and existing legal entity under the laws of the state
in which it is organized, and in good standing in the State of Texas, (b) it
has full right and authority to execute, deliver and perform this sublease,
(c) the person executing this sublease on behalf of Sublessee was authorized
to do so and (d) upon request of Sublessor, Sublessee will deliver to
sublessor satisfactory evidence of the due authorization, execution and
delivery of this Sublease by Sublessee.
9.12 SEVERABILITY. If any term or provision of this Sublease, or the
application thereof to any person or circumstance, shall to any extent by
invalid or unenforceable, the remainder of this Sublease, or the application
of such provision to persons or circumstances other than those as to which it
is invalid or unenforceable, shall not be affected thereby, and each provision
of this Sublease shall be valid and shall be enforceable to the extent
permitted by law.
9.13 NO RECORDING. This Sublease (including any Exhibits hereto) shall
not be recorded without the prior written consent of Sublessor.
9.14 PARKING. Sublessee shall be entitled to utilize the parking
privileges provided to Sublessor pursuant to Exhibit E of the Prime Lease, for
which Sublessee shall reimburse Sublessor monthly, together with the payment
of rentals pursuant to Section 4.03 above, the amount, if any, which Sublessor
is obligated therefor pursuant to the Prime Lease.
9.15 PRIME LESSOR'S CONSENT REQUIRED. Sublessee acknowledges that,
pursuant to the provisions of the Prime Lease, Sublessor is required to obtain
Prime Lessor's written consent to this Sublease, and accordingly, that the
obligations of Sublessor hereunder are expressly subject to Sublessor
obtaining such consent. If Prime Lessor's written consent to this Sublease is
not obtained by 5:00 p.m. Central time on December 8, 1994, this Sublease
agreement shall automatically terminate and be of no further force and effect.
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IN WITNESS WHEREOF, the undersigned Sublessor and Sublessee have executed
this Sublease effective as of the date and year first written above.
"Sublessor"
Lafarge Corporation
By: Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Representative
"Sublessee"
The Management Alliance Corporation
By: Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: President
CONSENTED AND AGREED
this day of December, 1994:
--------
"Prime Lessor"
Xxxx/Xxxxxxx Xxxxx Real Estate
Opportunity Partners Limited
By:
----------------------------------
Name:
-------------------------------
Title:
-------------------------------
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