Exhibit 10.10
BASIC LEASE INFORMATION
Lease Date: November 22, 1999
Tenant: PANJA INC., a Texas corporation
Address of Tenant: Panja Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
Landlord: DALMAC/GOLDCOR REAL ESTATE VENTURE, LTD.,
a Texas limited partnership
Address of
Landlord: DalMac/GoldCor Real Estate Venture, Ltd.
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000-0160
Attention: Xxx Xxxxxxx
Premises: Approximately 10.00 acres of land, as more
particularly described on Exhibit "A" attached
hereto and made a part hereof (the "Land"),
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together with an approximately 128,700 gross square
foot building and all other improvements to be
constructed by Landlord on the Land in accordance
with the terms of Rider 2 to this Lease (the
"Building"). The Premises may be adjusted pursuant
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to Rider 4 to this Lease.
Lease Term: That period of time commencing on the Commencement
Date (herein so called and as determined in the
manner hereinafter set forth) and expiring on the
last day of the calendar month in which the tenth
(10th) anniversary of the Commencement Date occurs,
together with all renewals exercised and entered
into in accordance with the terms of Rider 1
attached to this Lease.
Base Rental: Subject to the adjustments provided herein in Rider
3 to this Lease, from the Commencement Date to the
fifth (5th) anniversary of the Commencement Date,
an amount per annum equal to $ 1,496,299.24 payable
in equal monthly installments of $124,691.60 each,
and from the fifth (5th) anniversary date of the
Commencement Date until the last day of the
calendar month in which the tenth (10th)
anniversary of the Commencement Date occurs, an
amount per annum equal to $1,645,929.16 payable in
equal monthly installments of $137,160.76 each.
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Estimated Operating Expenses: Initially $32,175.00 per month, adjusted as
hereinafter provided.
Additional Rental: All sums of money, however described, which Xxxxxx becomes
obligated to pay to Landlord pursuant to the terms of this
Lease, other than Base Rental, specifically including
without limitation Estimated Operating Expenses.
Rent: All Base Rental and Additional Rental.
Affiliate: Any person or entity directly or indirectly, through one or
more intermediaries, which controls, is controlled by or is
under common control with Tenant; and the term "control"
shall mean (i) with respect to a corporation, the right to
exercise, directly or indirectly, more than 50% of the
voting rights attributable to the shares of the controlled
corporation, and (ii) with respect to the person or entity
that is not a corporation, the possession, directly or
indirectly, of the power to direct or cause the direction of
the management or policies of the controlled person or
entity.
Tenant Parties: Tenant, together with its Affiliates, employees, agents,
contractors and invitees.
The foregoing Basic Lease Information and definitions are hereby
incorporated into and made a part of the Lease identified hereinabove. Each
reference in the Lease to any of the information and definitions set forth in
the Basic Lease Information shall mean and refer to the information and
definitions hereinabove set forth and shall be used in conjunction with and
limited by all references thereto in the provisions of the Lease. In the event
of any conflict between any Basic Lease Information and the Lease, the Lease
shall control.
LANDLORD: TENANT:
DALMAC/GOLDCOR REAL ESTATE PANJA INC.,
VENTURE, LTD., a Texas corporation
a Texas limited partnership
By: XXXXXX XXXXXX, LTD., By: /s/ Xxx Xxxxx
a Texas limited partnership ------------------
Name: Xxx Xxxxx
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Title:President & CEO
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By: DalMac Real Estate, Inc.,
a Texas corporation,
Its General Partner
By: /s/ X.X XxXxxxxx
-----------------
Name: X.X XxXxxxxx
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2
Title: President
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TABLE OF CONTENTS
Page
1. DEFINITIONS AND BASIC PROVISIONS.......................................................................... -1-
2. LEASE GRANT............................................................................................... -1-
3. RENT...................................................................................................... -1-
4. OPERATING EXPENSES........................................................................................ -2-
5. LANDLORD'S OBLIGATIONS.................................................................................... -3-
6. TENANT'S OBLIGATIONS...................................................................................... -4-
7. UTILITIES................................................................................................. -4-
8. TENANT'S TAX OBLIGATIONS.................................................................................. -5-
9. INSURANCE, FIRE OR OTHER CASUALTY......................................................................... -6-
10. CONSTRUCTION ON THE PREMISES.............................................................................. -7-
11. USE; REDELIVERY........................................................................................... -8-
12. ASSIGNMENT AND SUBLETTING................................................................................. -9-
13. INDEMNITY................................................................................................. -12-
14. SUBORDINATION............................................................................................. -14-
15. INSPECTION................................................................................................ -15-
16. CONDEMNATION.............................................................................................. -15-
17. HOLDING OVER.............................................................................................. -16-
18. USE OF ROOF............................................................................................... -16-
19. EVENTS OF DEFAULT......................................................................................... -17-
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20. REMEDIES............................................................................................... -19-
21. SURRENDER OF PREMISES.................................................................................. -20-
22. ATTORNEYS' FEES........................................................................................ -20-
23. MECHANICS' LIENS....................................................................................... -20-
24. WAIVER OF SUBROGATION.................................................................................. -21-
25. SIGNAGE................................................................................................ -21-
26. BROKERAGE.............................................................................................. -21-
27. ESTOPPEL CERTIFICATES.................................................................................. -22-
28. NOTICES................................................................................................ -22-
29. SEVERABILITY........................................................................................... -22-
30. AMENDMENTS; BINDING EFFECT............................................................................. -23-
31. QUIET ENJOYMENT........................................................................................ -23-
32. GENDER................................................................................................. -23-
33. PERSONAL LIABILITY..................................................................................... -23-
34. NOTICE TO LENDER....................................................................................... -23-
35. CAPTIONS............................................................................................... -24-
36. MISCELLANEOUS.......................................................................................... -24-
37. EXHIBITS AND ATTACHMENTS............................................................................... -25-
38. INDEMNITY OBLIGATIONS.................................................................................. -25-
Exhibit A - Legal Description
Exhibit B - Form of SNDA
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Rider 1 - Renewal Options
Rider 2 - Construction Agreement
Rider 3 - Rent Calculation
Rider 4 - Adjacent Land
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THIS LEASE AGREEMENT is entered into as of the Lease Date by and between
Landlord and Xxxxxx.
W I T N E S S E T H:
1. DEFINITIONS AND BASIC PROVISIONS
The definitions and basic provisions set forth in the Basic Lease
Information (the "Basic Lease Information") executed by Landlord and Tenant
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contemporaneously herewith are incorporated herein by reference for all purposes
and shall be used in conjunction with and limited by the references thereto in
the provisions of this Lease. In the event of any conflict, the provisions of
this Lease shall control.
2. LEASE GRANT
a. In consideration of the Rent to be paid, the other covenants and
agreements to be performed by Xxxxxx, and upon the terms hereinafter stated,
Landlord does hereby lease, demise and let unto Tenant the Premises, commencing
on the Commencement Date and ending on the last day of the Lease Term, unless
the same is extended as herein provided.
b. By accepting possession of the Building, Tenant shall be
conclusively deemed to have accepted same as being in good and satisfactory
condition and suitable for their intended commercial purpose, subject only to
Landlord's obligations with respect to "punch list" matters in accordance with
the provisions of Rider 2.
3. RENT
In consideration of this Lease, Xxxxxx promises and agrees to pay Landlord
the Base Rental, without demand, deduction or set off, on or before the first
day of each month of the Lease Term, and all extensions thereof. The first such
monthly installment of Base Rental shall be payable by Tenant to Landlord on the
Lease Date and monthly installments of Base Rental shall thereafter be paid on
or before the first day of each calendar month following the Commencement Date
during the Lease Term. In the event any installment of Base Rental is not
received within ten (10) days after the due date thereof (without in any way
implying Landlord's consent to such late payment), Tenant, to the extent
permitted by law, agrees to pay, in addition to said installment of Base Rental,
a late payment charge equal to ten percent (10%) of the late installment of Base
Rental, it being understood that said late payment charge shall constitute
liquidated damages (but shall not void the occurrence of a default or eliminate
any of Landlord's remedies therefor) and shall be for the purposes of
reimbursing Landlord for the additional costs and expenses which Landlord
presently expects to incur in connection with the handling and processing of a
late installment payment of Base Rental. Tenant and Landlord agree that the
damages suffered by Landlord in the event of any such late payments are not
capable of being ascertained precisely, and that the foregoing amount
constitutes a reasonable and good faith estimate by the parties of the extent of
such damages. Notwithstanding the foregoing, such late charges shall not apply
to any Additional Rental which become due and owing by Tenant to Landlord
pursuant to the provisions of this Lease, it being understood that such
Additional Rental shall bear interest from and after the tenth (10th) day after
Tenant is notified that such Additional Rental is due, which interest Tenant
hereby agrees to pay to Landlord, at the lesser of eighteen percent (18%) per
annum or the maximum rate of interest permitted by law to be charged Tenant for
the use or forbearance of such money (the Default Rate"). Notwithstanding
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anything in this Lease to the contrary, all amounts payable by Tenant to
Landlord as Rent, including but not limited to any amounts due and payable as
the Additional Rental, shall constitute rent for the purpose of Section
502(b)(7), as it may be amended, of the Federal Bankruptcy Code, 11 U.S.C.
(S) 101 et seq. (the "Bankruptcy Code").
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4. OPERATING EXPENSES.
Tenant agrees to pay, as a part of Rent, all "Operating Expenses",
meaning (i) all taxes, assessments, including all assessments made pursuant to
restrictions and covenants applicable to the Building, and governmental charges
of any kind and nature whatsoever (hereinafter collectively referred to as
"taxes") lawfully levied or assessed against the Building and real property
described on Exhibit "A", (ii) all insurance obtained by Landlord pursuant to
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the terms of this Lease and (iii) all expenses of operating, maintaining and
repairing the Building and Common Areas in accordance with the terms of this
Lease together with a property management fee of 2% of Base Rent. In the event
the present method of taxation shall be changed so that in lieu of the whole or
any part of any taxes, assessments or governmental charges levied, assessed or
imposed on real estate and the improvements thereon, there shall be levied,
assessed or imposed on Landlord a capital levy or other tax directly on the
rents received therefrom and/or a franchise tax assessment, levy or charge
measured by or based, in whole or in part, upon such rents for the present or
any future Building and Land, then all such taxes, assessments, levies or
charges, or the part thereof so measured or based, shall be deemed to be
included within the term "taxes" for the purposes hereof.
The term "Operating Expenses" shall not include (i) costs of a capital
nature, including, but not limited to, capital improvements, capital repairs,
capital equipment, and capital tools, all as determined in accordance with
generally accepted accounting principles and sound management practices
consistently applied, except for capital costs incurred by reason of
governmental requirement, the negligence or malfeasance of Tenant or its
employees, invitees, agents or contractors or a breach by Tenant of its
obligations hereunder, or to reduce Operating Expenses; (ii) advertising and
promotional costs including tenant relation programs and events; (iii)
Landlord's gross receipts taxes (other than those applicable to rental receipts
from the Building in lieu of or in addition to property taxes), personal and
corporate income taxes, inheritance and estate taxes, other business taxes and
assessments, franchise, gift and transfer taxes, and all other real estate taxes
relating to a period outside the term of the Lease; (iv) any fines, costs,
penalties or interest resulting from the negligence or willful misconduct of the
Landlord or its agents, contractors, or employees; (v) brokerage fees and
commissions incurred in connection with leasing or selling the Building; (vi)
payments of principal or interest on "Landlord's Building Debt" (herein so
called). Operating Expenses shall also exclude the following items: (a) capital
expenses incurred to reduce Operating Expenses to the extent capital expenses
exceed the actual reduction in Operating Expenses; (b) salaries and bonuses of
officers, executives and employees of Landlord not employed exclusively at the
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Building following the Commencement Date or who are above the level of Building
Manager; (c) depreciation and amortization of any type; (d) any cost
representing an amount paid to any person or entity affiliated with Landlord
which is in excess of amounts customarily paid, other than fees or items which
have been approved at the time of the execution of this Lease; (e) Landlord's
general overhead.
The initial monthly installment of Estimated Operating Expenses as set
forth on Page 2 of this Lease has been established by Landlord on the basis of
its estimate of Tenant's liability for Estimated Operating Expenses for the
balance of the calendar year in which the Lease Term will commence. Within one
hundred twenty (120) days after the end of each calendar year during the Lease
Term, or as soon as reasonably possible thereafter, Landlord shall provide
Tenant a statement showing the Operating Expenses actually incurred by Landlord
for such calendar year, in comparison to the Estimated Operating Expenses paid
by Tenant during such calendar year. If the Estimated Operating Expenses paid by
Xxxxxx exceeds Tenant's obligations for the Operating Expenses for such calendar
year, Landlord shall pay Tenant an amount equal to such excess at Landlord's
option, by either giving a credit against Monthly Rent next due, if any, or by
direct payment to Tenant within thirty (30) days after the date of such
statement. If the Estimated Operating Expenses paid by Xxxxxx is less than
Tenant's obligations for Operating Expenses for such calendar year, Tenant shall
pay Landlord, within thirty (30) days after receipt of the statement, an amount
equal to such difference. Tenant, at its expense, shall have the right at its
sole cost and expense, within five (5) months after receiving Landlord's
statement of Operating Expenses for a particular calendar year, to audit
Landlord's books and records, respectively, relating solely to Operating
Expenses for such calendar year, failing which Tenant waives any rights to audit
and accepts the calculations set forth by Landlord. To the extent that Tenant
elects to conduct an audit within the parameters of this Section 4, such audit
shall be at Tenant's sole cost and expense unless the results of the audit, once
verified and approved by the parties, reflect a variance in the Landlord's
accounting of Operating Expenses and the actual Operating Expenses as reflected
in the results of the approved audit. In such an event only, the cost of the
audit shall be borne by Landlord.
In the event Landlord's reasonable estimate of Operating Expenses which
will be incurred for any calendar year is revised, then Landlord shall be
permitted, upon thirty (30) days prior written notice to Tenant, to change the
amount of Estimated Operating Expenses payable by Tenant each month, it being
the intent of both Landlord and Tenant to attempt to cause the amount of
Estimated Operating Expenses payable each month to be approximately one-twelfth
of Tenant's obligations for the Operating Expenses.
5. LANDLORD'S OBLIGATIONS
Landlord shall, at its expense, maintain the roof, foundation and
structural soundness of the exterior walls and the common area (excluding all
windows, window glass, plate glass and all doors) of the Building in good repair
and condition excluding reasonable wear and tear. Tenant shall give immediate
written notice to Landlord of the need for repairs or corrections to any such
matters, and Landlord shall proceed within a reasonable time after receiving
such notice to make such repairs or corrections. Provided, however, if any such
needed repair is of a type which threatens immediate bodily injury or
substantial
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damages to the Premises or Tenant's contents therein, then Tenant shall,
following notice to Landlord, have the right to commence and continue such
corrective action at Landlord's expense until such time as Landlord shall assume
such corrective action. Landlord's liability under this Section 5 shall be
limited to the cost of any such repairs or corrections. Tenant shall repair and
pay for any damage caused by the negligence or default hereunder of or by
Tenant, its employees, agents and invitees. The cost of any such damage which is
paid by Landlord pursuant to the immediately preceding sentence shall be deemed
Additional Rent which shall be due and payable in the manner described herein.
6. TENANT'S OBLIGATIONS
a. Tenant shall, at its own cost and expense, keep and maintain all
parts of the Premises (except those for which Landlord is expressly responsible
under Section 5 above) in good condition promptly making all necessary repairs
and replacements including, but not limited to, windows, glass, plate glass,
doors and special office entry, interior walls and finish floors and floor
coverings, mechanical, electrical, heating and air conditioning systems, dock
boards, truck doors, dock bumpers, plumbing work and fixtures, pest
extermination and regular removal of trash and debris, keeping the whole of the
Premises in a clean and sanitary condition. Tenant shall not be obligated to
repair any damage caused by fire, tornado or other casualty covered by the
insurance required to be maintained by Landlord pursuant to the provisions of
this Lease, except that Tenant shall be obligated to repair all wind damage to
glass except with respect to tornado or hurricane damage. Tenant shall be
obligated to occupy the Premises in accordance with this Lease in a safe and
prudent manner and in conformance with all applicable laws, ordinances, rules or
regulations relating to, governing or affecting Tenant's use and occupancy of
the Premises.
b. If Tenant should fail to perform any of its obligations hereunder
with respect to its obligations under this Section, then Landlord may, if it so
elects but expressly without any obligation to do so, following the expiration
of any applicable notice and cure period, in addition to any other remedies
provided herein, make such payments or obtain such licenses, certificates or
permits as are required to properly undertake Tenant's obligations under this
Section. Any out-of-pocket sums expended by Landlord with respect to any of the
foregoing shall be deemed to be Additional Rental owing by Tenant to Landlord
and shall be due and payable, on written demand, which demand shall specify the
amounts expended, together with interest thereon at the Default Rate from the
date of each such demand by Landlord to the date of repayment in full by Tenant.
7. UTILITIES. (a) Landlord agrees to provide water, electricity, and telephone
service connections to the Building; but Tenant shall pay for all water, gas,
heat, light, power, telephone, sewer, sprinkler charges and other utilities and
services used on or from the Building, together with any taxes, penalties,
surcharges or the like pertaining thereto and any maintenance charges for
utilities and shall furnish all electric light bulbs and tubes. Landlord shall
in no event be liable for any interruption or failure of utility services on the
Building unless such interruption is caused solely by Landlord's failure to
provide the required service connections or an uncured default by Landlord of
its construction obligations hereunder.
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(b) If Tenant should fail to perform any of its obligations hereunder
with respect to its obligations under this Section, then Landlord may, if it so
elects but expressly without any obligation to do so, following the expiration
of any applicable notice and cure period, in addition to any other remedies
provided herein, make such payments or obtain such licenses, certificates or
permits as are required to properly undertake Tenant's obligations under this
Section. Any out-of-pocket sums expended by Landlord with respect to any of the
foregoing shall be deemed to be Additional Rental owing by Tenant to Landlord
and shall be due and payable, on written demand, which demand shall specify the
amounts expended, together with interest thereon at the Default Rate from the
date of each such demand by Landlord to the date of repayment in full by Tenant.
8. TENANT'S TAX OBLIGATIONS
a. Commencing on the Commencement Date, Xxxxxx agrees to pay, before
they become delinquent, all taxes, assessments and governmental charges of any
kind and nature whatsoever (hereinafter collectively referred to as "Taxes")
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lawfully levied or assessed against the Premises as well as those assessed
against all personal property, furniture, and fixtures of Tenant located on the
Premises. Tenant shall furnish to Landlord, not later than fifteen (15) days
before the date any such taxes become delinquent, official receipts of the
appropriate taxing authority or other evidence satisfactory to Landlord
evidencing payment thereof. If Tenant should fail to pay any Taxes required to
be paid by Tenant hereunder at least ten (10) days before such taxes become
delinquent, in addition to any other remedies provided herein, Landlord may, if
it so elects but with no obligation to do so, pay such Taxes. Any out-of-pocket
sums expended by Landlord to pay such Taxes (including all penalties, interest
and attorneys fees which have accrued due to Tenant's failure to pay) shall be
deemed to be Additional Rental owing by Tenant to Landlord and shall be due and
payable, on written demand, together with interest thereon at the Default Rate
from the date of such demand by Landlord to the date of repayment in full by
Tenant.
b. If at any time during the Lease Term, and all extensions thereof,
the present method of taxation shall be changed so that in lieu of the whole or
any part of any Taxes levied, assessed or imposed on Premises, there shall be
levied, assessed or imposed on Landlord a capital levy or other tax directly on
the Rents received therefrom, then all such taxes, assessments, levies or
charges, or the part thereof so measured or based, shall be deemed to be
included within the term "Taxes" for the purposes hereof. There shall not be
included within the term "Taxes" any income taxes, franchise taxes or other
taxes imposed upon the general revenues of Landlord.
c. Tenant may, at its sole cost and expense and in its own name or in
the name of Landlord, dispute and contest any assessed values and any Taxes by
appropriate proceedings diligently conducted in good faith. In the event that
Tenant elects, as a result of the pendency of any such protest, to not pay any
of the Taxes prior to the date on which same will become delinquent, then Tenant
shall, prior to such delinquency date, and if requested by Landlord, deposit
with Landlord the amount so contested and unpaid, together with an amount which
is estimated by Landlord to be the penalties, interest and attorney's fees which
will be owed if Tenant does not prevail. Landlord may waive the making of such
deposit if it
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receives assurances reasonably satisfactory to Landlord that such Taxes,
penalties, interest and attorney's fees will be paid in the amounts finally
adjudicated as being owed. Tenant hereby indemnifies and holds Landlord harmless
from any and all costs, damages, or expenses (including but not limited to
penalties, interest and attorney's fees) in connection with any such
proceedings.
d. Taxes payable with respect to the Premises for the year in which the
Commencement Date occurs, as well as those payable for the year in which the
Lease Term expires, shall be prorated between Landlord and Tenant with Landlord
being obligated to pay the taxes for those time periods which are not included
in the Lease Term.
9. INSURANCE, FIRE OR OTHER CASUALTY. In addition to the insurance
requirements of Rider 2 during construction, Landlord agrees to maintain fire
and extended coverage insurance covering the Improvements on the Premises in an
amount not less than 100% of the "replacement cost" thereof as such term is
defined in the Replacement Cost Endorsement to be attached thereto, insuring
against the perils of fire, lightning, vandalism, malicious mischief and loss of
rental, extended by Special Extended Coverage Endorsement to insure against all
other risks of direct physical loss, such coverages and endorsements to be as
defined, provided and limited in the standard bureau forms prescribed by the
insurance regulatory authority for the state in which the Premises are situated
for use by insurance companies admitted in such state for the writing of such
insurance on risks located within such state. Subject to the provisions of this
Section 9, such insurance shall be for the sole benefit of Landlord and under
its sole control. Landlord shall also maintain commercial general liability
insurance, with commercially reasonable policy limits acceptable to Landlord and
its lender, with respect to Landlord's activities and operations at the
Building.
In the event the Premises should be damaged by fire, tornado or other
casualty covered by Landlord's insurance Landlord shall, except as hereinafter
provided, at Landlord's sole cost and expense (but with the use of all available
insurance proceeds, if any), proceed with reasonable diligence to rebuild and
repair such improvements to substantially the condition in which they existed
prior to such damage or destruction, with such reasonable changes as may be
agreed to between Landlord and Tenant. Landlord shall not be obligated to agree
to any changes which will, in its sole and absolute discretion, reduce the value
of the Premises. Landlord shall not be obligated to commence any rebuilding or
repairing until such time as it has (i) received the entire insurance award and
(ii) Tenant has paid to Landlord the amount of any deductible with respect to
such insurance as well as all costs which Landlord's architects and contractors
project will be incurred in excess of such insurance award and deductible.
Notwithstanding the foregoing, in the event that damage or destruction to the
Building occurs and (a) the repairs would take more than 180 days to complete to
permit Tenant to occupy the Premises or (b) more than seventy-five percent (75%)
of the replacement value of the Building is destroyed, then either Landlord or
Tenant shall be permitted to terminate this Lease by written notice given to
other within thirty (30) days after the occurrence of such casualty unless
Tenant properly exercises any available lease extensions, in which event the
Parties shall proceed under the remaining provisions of this Section 9. In the
event of such termination, Tenant shall pay to Landlord the amount of any
deductible with respect to the insurance, the insurance proceeds attributable to
the damage or destruction resulting from such casualty (save and except any
portion thereof properly
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attributable to personal property that Xxxxxx would be permitted to remove at
the end of the Lease Term) shall be paid to Landlord and the insured mortgagee,
as their interests may appear.
10. CONSTRUCTION ON THE PREMISES.
a. Landlord shall, prior to the Commencement Date, construct the Building
and other improvements on the Land in accordance with Rider 2 to this Lease,
save and except for the tenant finish for the 30,000 square foot pod which shall
be constructed in the manner specified in Rider 2.
b. From and after the completion of the Building and other improvements
contemplated by Rider 2, Tenant shall, at its sole cost and expense, perform all
the construction, alterations, improvements and other work which it desires to
perform on the Premises. All construction, alterations, improvements, or other
work done by Tenant shall be performed in a good and workmanlike manner and in
accordance with all applicable laws, codes, ordinances and restrictive
covenants. Prior to commencing any such work Tenant shall obtain all permits,
approval and consents required under applicable law or under any restrictive
covenants applicable to the Premises, and Tenant shall be required to submit to
Landlord its construction contracts for any such work so that Landlord may
review and approve the same for the purposes of assuring performance in
accordance with the requirements of this Lease, which approval shall not be
unreasonably withheld or delayed. Tenant's contractor shall be required to carry
builder's risk and other appropriate insurance naming Landlord and Landlord's
lender as additional insureds.
c. All construction, alterations, improvements, or other work done by
Xxxxxx on or about the Premises, whose costs are projected to be over $25,000.00
whenever performed, shall be performed using contractors which have been given
Landlord's prior written approval and in accordance with plans and
specifications which have been approved by Landlord, in writing, prior to the
commencement of any such work. Landlord will not unreasonably withhold or delay
its approval of such contractors, plans or specifications.
d. Within thirty (30) days after the completion of each project described
in subsection c. above, Tenant shall deliver to Landlord one set of fully
corrected and documented "as-built" plans and specifications together with a
C.A.D. disk of such "as-built" plans. In order to accommodate Tenant's
compliance with its obligations under this Section 10, Landlord shall make
available to Tenant on a non-exclusive basis the C.A.D. disk of the "as-built"
plans for the Building with the express understanding which shall be reduced to
a specific agreement at the time such C.A.D. disk is made available to Tenant
that such C.A.D. disk and related plans may be used only by Tenant or any party
acting by or through Tenant to complete Tenant's obligations pursuant to this
Section 10, and expressly cannot be used on any other facility or project other
than the Building without the express written consent of Landlord and its
architect.
e. Landlord shall be permitted, if it desires to do so and at its sole
cost and expense, to observe and inspect all construction, alterations,
improvements, or other work done by Tenant to assure
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itself that the same is being performed in accordance with the approved plans
and specifications and the requirements of all applicable laws, codes,
ordinances and restrictive covenants. Such observation and inspection, if done,
shall be solely for the benefit of Landlord and Tenant shall not be entitled to
rely on same. Landlord shall not be obligated or required to, but may if it
chooses to, inform Xxxxxx as to its conclusions following any such observation
or inspection, even if its has concluded that Tenant is in violation of the
terms of this Lease.
11. USE; REDELIVERY
a. Tenant shall use the Premises only for general office purposes,
production and distribution facilities and warehouse space as permitted by
applicable law (the "Permitted Use"). Tenant will not occupy or use the
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Premises, or permit any portion of the Premises to be occupied or used for any
use or purpose which is unlawful, which violates any applicable restrictive
covenants or which is in any manner extra hazardous on account of fire or other
hazard; and further, in the event that, by reason of acts of Tenant, there shall
be any increase in rate of insurance on the Building or contents created by
Tenant's acts or conduct of business then Tenant hereby agrees to pay to
Landlord the amount of such increase within five (5) days of demand unless
Tenant can cause, at its sole cost, the insurance increase to be fully
eliminated, and acceptance of such payment shall not constitute a waiver of any
of Landlord's other rights provided herein, failing which Tenant shall be in
default hereunder. Tenant will conduct its business and control its agents,
employees and invitees in such a manner as not to create any nuisance, nor
interfere with, or disturb Landlord in management of the project of which the
Premises form a part. Tenant will maintain the Premises in a clean, healthful
and safe condition and will comply with all laws, ordinances, order, rules and
regulations (state, federal, municipal and other agencies or bodies having any
jurisdiction thereof) with reference to use, condition or occupancy of premises.
Tenant will not, without the prior written consent of Landlord, paint, install
lighting or decoration, or install any signs, window or door lettering or
advertising media of any type on or about the exterior of the Premises or any
part thereof. Should Landlord agree in writing to any of the foregoing items in
the preceding sentence, Tenant will maintain such permitted item in good
condition and repair at all times. Outside storage, including but not limited to
trucks or other vehicles or equipment shelter, is prohibited without Landlord's
prior written consent. Subject to Tenant's performance of its obligations
hereunder, Tenant shall have access to the Premises twenty-four (24) hours a
day, 365 days a year.
b. At the end or other termination of this Lease, Tenant shall deliver
possession of the Premises to Landlord with all improvements located thereon
(except as otherwise herein provided) in good repair and condition, reasonable
wear and tear excepted, and shall deliver to Landlord all keys to the Building.
The cost and expense of any repairs necessary to restore the condition of the
Premises to said condition in which they are to be delivered to Landlord shall
be borne by Tenant. All alterations, additions or improvements (whether
temporary or permanent in character) made by Tenant in or upon the Premises
shall, unless agreement to the contrary is reached by Landlord and Tenant and
documented in a writing signed by both, be Xxxxxxxx's property on termination of
this Lease, and shall remain on the Premises without compensation to Tenant. So
long as Tenant is not then in default, all furniture, trade fixtures and
-8-
equipment installed by Tenant may be removed by Tenant at the termination of
this Lease if Tenant so elects, and shall (with respect to all furniture,
movable trade fixtures and equipment) be so removed if required by Landlord, or
if not so removed shall, at the option of Landlord, become the property of
Landlord.
12. ASSIGNMENT AND SUBLETTING
a. Except as specifically hereinafter permitted, Tenant shall not,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, (i) assign or in any manner transfer this
Lease or any estate or interest therein, (ii) permit any assignment of this
Lease or any estate or interest therein by operation of law, (iii) sublet the
Premises or any part thereof, (iv) grant any license, concession or other right
of occupancy of any portion of the Premises or (v) permit the use of the
Premises by any parties other than Tenant and Tenant Parties; and any such acts
without Landlord's prior written consent shall be void and of no effect.
Notwithstanding the foregoing, Xxxxxxxx agrees, provided Xxxxxxxx is given ten
(10) days prior written notice and within ten (10) days after the same is signed
receives from Tenant an executed copy of the assignment or sublease instrument,
that Tenant shall be permitted to sublet all or any part of the Premises or to
assign this Lease to an Affiliate so long as such Tenant remains primarily
liable for all of its obligations hereunder and confirms the same in writing to
Landlord at the time of the assignment or subletting. Consent by Landlord to one
or more assignments or sublettings shall not operate as a waiver of Landlord's
rights as to any subsequent assignments and sublettings. Notwithstanding any
assignment or subletting, including those made to Affiliates, Tenant shall at
all times remain fully responsible and liable for the payment of the Rent herein
specified and for compliance with all of Tenant's other obligations under this
Lease. Upon the occurrence of an event of default, the Landlord may, at its
option, collect directly from any assignee or sublessee all rents becoming due
to Tenant under such assignment or sublease and apply such rent against any Rent
due to Landlord by Tenant hereunder. Tenant hereby authorizes and directs any
such assignee or sublessee to make such payments of rent directly to Landlord
upon receipt of notice to do so from Landlord. No direct collection by Landlord
from any such assignee or sublessee shall be construed to constitute a novation
or a release of Tenant from the obligation to pay the Rent or from further
performance of their obligations hereunder. Receipt by Landlord of rent from any
assignee or sublessee of the Premises shall not be deemed a waiver of the
covenant in this Lease contained against assignment and subletting. The receipt
by Landlord of rent from any such assignee or sublessee shall be a full and
complete release, discharge, and acquittance to such assignee or sublessee to
the extent of any such amount of rent so paid to Landlord. Tenant shall not
mortgage, pledge or otherwise encumber its interest in this Lease or in the
Premises.
b. If Xxxxxx requests Xxxxxxxx's consent to an assignment of this Lease
or subletting of all or a part of the Premises, it shall submit to Landlord, in
writing, the name of the proposed assignee or subtenant and the nature and
character of the business of the proposed assignee or subtenant, the term, use,
rental rate and other particulars of the proposed subletting or assignment,
including without limitation, evidence reasonably satisfactory to Landlord that
the proposed subtenant or assignee is financially responsible and will occupy
and thereafter use the Premises (or any sublet portion thereof) for the
-9-
remainder of the Lease Term (or for the entire term of the sublease, if
shorter). Landlord shall have the option (to be exercised within twenty (20)
days from submission of Xxxxxx's written request) to (i) approve such subletting
or assignment (on such reasonable conditions as Landlord deems appropriate
including, without limitation, execution by Xxxxxx and subtenant of Landlord's
consent to sublease) or (ii) disapprove such subletting or assignment. Failure
by Landlord to respond to Xxxxxx's written request in the form required by this
subsection (b) within the aforesaid twenty (20) day period shall be deemed an
approval of the request.
c. If Tenant, as a debtor in possession, or a trustee for the estate in
bankruptcy of Tenant (the "Trustee"), assumes this Lease and proposes to assign
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this Lease or sublease the Premises (or any portion thereof), pursuant to the
provisions of the Bankruptcy Code, to any person, partnership, corporation, or
other entity which shall have made or seeks to make an offer to accept an
assignment of this Lease or a sublease of the Premises on terms acceptable to
Tenant or the Trustee, as the case may be, then Tenant or the Trustee, as the
case may be shall give Landlord written notice immediately after receipt of any
such offer to accept an assignment of this Lease or a sublease of the Premises
(and in any event no later than thirty (30) days prior to the date that Tenant
or the Trustee, as the case may be, shall make application to the court of
competent jurisdiction for authority and approval to enter into such assignment
or sublease), which notice shall set forth (i) the name and address of the party
to whom Tenant or the Trustee, as the case may be, proposes that this Lease be
assigned or the Premises be subleased, (ii) all of the terms and conditions of
such party's offer, (iii) terms and conditions upon which Tenant or the Trustee,
as the case may be, intends to cure any existing defaults hereunder as well as
satisfactory evidence of such party's financial ability so to cure, and (iv)
adequate assurances of the future performance of such party under this Lease.
Landlord shall, upon receipt of such notice, have the prior right and option, to
be exercised by notice to Tenant or the Trustee, as the case may be, given at
any time prior to the effective date of such proposed assignment or sublease, to
accept an assignment of this Lease or a sublease of the Premises by any other
assignee or subtenant acceptable to Landlord, upon the same terms and conditions
and for the same consideration, if any, as the offer made by the party to whom
Tenant or the Trustee, as the case may be, proposes that this Lease be assigned
or the Premises be subleased, less any brokerage commissions which may be
payable out of the consideration to be paid by such person for the assignment of
this Lease.
Notwithstanding the foregoing provision for notice not later than thirty
(30) days prior to the date Tenant or the Trustee, as the case may be, shall
make application to a court of competent jurisdiction for authority and approval
to enter into such assignment or sublease, nothing contained herein shall be
deemed to be a waiver or extension by Landlord or any of the requirements of
Section 365(d) of the Bankruptcy Code. If the rent rate agreed upon between
Tenant or the Trustee, as the case may be, and the party to whom Tenant or the
Trustee, as the case may be, proposes that this Lease be assigned or the
Premises be subleased under any proposed sublease of the Premises (or any part
thereof) is greater than the rent provided in this Lease for that portion of the
Premises that is subject to such proposed sublease or assignment, or if any
consideration shall be received by Tenant or the Trustee, as the case may be, in
connection with any such proposed assignment or sublease, then all such excess
rent or such consideration, and any and all other monies or other considerations
payable or otherwise to be delivered in connection
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with such proposed assignment or sublease, shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord, and shall not
constitute property of Tenant, the Trustee, or the estate of Tenant, as the case
may be, within the meaning of the Bankruptcy Code. Any and all monies or other
considerations constituting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be held in trust for the sole benefit of
Landlord and shall be promptly paid to or turned over to Landlord. 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 obligations arising under this Lease and each of the conditions and
provisions hereof on and after the date of such assignment. Any such assignee
shall, upon the request of Landlord, forthwith execute and deliver to Landlord
an instrument, in form and substance acceptable to Landlord, confirming such
assumption.
In connection with any proposed assignment of this Lease or sublease of the
Premises, Tenant or the Trustee, as the case may be, pursuant to provisions of
the Bankruptcy Code, shall provide adequate assurance of future performance
under this Lease by the party to whom Tenant or the trustee, as the case may be,
proposes that this Lease be assigned or the Premises be subleased, which
adequate assurance shall include, at a minimum, delivery by each party to
Landlord of (i) a security deposit in the amount equal to at least three times
the amount per month payable as Base Rental, (ii) disclosure of the source of
rent and other charges to be paid in consideration for the assignment or
sublease and under this Lease, (iii) an audited financial statement, dated no
more than six (6) months prior to the effective date of such proposed assignment
or sublease, which financial statement shall disclose the net worth of the party
to whom Tenant or the Trustee, as the case may be, proposes that this Lease be
assigned or the Premises be subleased as being equal to at least twelve (12)
times the amount per month payable as Base Rental, or a guaranty of such party's
obligations under the assignment of this Lease, in form and substance acceptable
to Landlord, executed by a guarantor which has a net worth, as substantiated by
an audited financial statement, meeting the requirements described above in this
clause, and (iv) the grant of a security interest in favor of Landlord in all
furniture, fixtures, and other personal property to be used by such party on the
Premises.
Nothing contained in this Section 12(c) shall be deemed a waiver of
Landlord's other rights or remedies under this Lease in the event of any default
by Xxxxxx, and the acceptance by Landlord of any assignee or subtenant of Tenant
hereunder shall not constitute a waiver of Landlord's right to exercise any
remedy hereunder for any default by Xxxxxx, the Trustee, or any assignee or
subtenant. This Section 12(c) shall only govern the terms and conditions of any
assumption by Tenant (as a debtor in possession) or the Trustee, and any
assignment or sublease pursuant to such assumption, in the event of a proceeding
under the Bankruptcy Code and shall not apply to any assignment or sublease
other than pursuant to the provisions of the Bankruptcy code. The requirements
set forth in this Section 12(c) for the assumption and any assignment or
sublease in a proceeding under the Bankruptcy Code are intended by Landlord and
Tenant to define the minimum acceptable requirements for any assumption of this
Lease and any subsequent assignment or sublease and shall not constitute a
waiver of, or in any way limit, Landlord's rights to petition a court of
competent jurisdiction in a proceeding under the Bankruptcy Code for relief and
protection in addition to that set forth herein.
-11-
d. Landlord shall have the right to transfer, assign and convey, in whole
or in part, the Building and any and all of its rights under this Lease, and in
the event Landlord assigns its rights under this Lease, Landlord shall thereby
be released from any further obligations hereunder, and Xxxxxx agrees to look
solely to such successor in interest of the Landlord for performance of such
obligations. Tenant acknowledges that Landlord shall, prior to the commencement
of construction, assign this Lease to a Texas limited partnership, which shall
be affiliated with Landlord. Such partnership shall have access to sufficient
capital and debt to satisfy its obligations under Rider 2 of this Lease.
13. INDEMNITY
a. Except as provided in Section 13(d) below, Landlord shall not be
liable to Tenant (except in the event of gross negligence or willful misconduct
of Landlord, or its duly authorized agents or employees) for (i) any injury to
person or damage to property due to the Building, any other improvements on the
Premises or any part thereof becoming out of repair or by defect in or failure
of pipes or wiring, by the bursting or leaking of pipes, faucets and plumbing
fixtures, by gas, water, steam, electricity or oil leaking, escaping or flowing
into the Building or other improvements on onto other parts of the Premises, or
by any other cause whatsoever or (ii) any loss, damage, or injury that may be
occasioned by or through the acts or omissions of any persons whatsoever,
INCLUDING WITHOUT LIMITATION THE ORDINARY NEGLIGENCE OF LANDLORD, or (iii) for
any loss or damage to any property or person occasioned by theft, fire, act of
God, public enemy, injunction, riot, insurrection, war, court order, requisition
or order of governmental authority, or any other matter. Tenant agrees that all
personal property owned by or placed on the Premises by Tenant shall be at the
risk of Tenant only, and that Landlord shall not be liable for any damage
thereto or theft thereof.
b. TENANT HEREBY AGREES TO INDEMNIFY AND HOLD AND SAVE LANDLORD WHOLE AND
HARMLESS OF, FROM AND AGAINST (I) ALL FINES, SUITS, LOSSES, COSTS, EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES), LIABILITIES,
CLAIMS, DEMANDS, ACTIONS AND JUDGMENTS OF EVERY KIND AND CHARACTER BY REASON OF
ANY BREACH, VIOLATION OR NON-PERFORMANCE OF ANY TERM, PROVISION, COVENANT,
AGREEMENT OR CONDITION ON THE PART OF TENANT HEREUNDER, (II) ALL FINES, SUITS,
CLAIMS, DEMANDS, ACTIONS, DAMAGES, LOSSES, COSTS, EXPENSES (INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS' FEES), LIABILITIES, AND JUDGMENTS SUFFERED BY,
RECOVERED FROM OR ASSERTED AGAINST LANDLORD ON ACCOUNT OF INJURY OR DAMAGE TO
PERSON OR PROPERTY TO THE EXTENT THAT ANY SUCH DAMAGE OR INJURY MAY HAVE
OCCURRED ON THE PREMISES OR BE INCIDENT TO, ARISE OUT OF, OR BE CAUSED, EITHER
PROXIMATELY OR REMOTELY, WHOLLY OR IN PART, BY ANY ACT, OMISSION, NEGLIGENCE OR
MISCONDUCT ON THE PART OF TENANT OR ANY OF TENANT PARTIES OR WHEN ANY SUCH
INJURY OR DAMAGE IS THE RESULT OF THE VIOLATION BY TENANT, OR ANY OF THE TENANT
PARTIES OF ANY LAW, ORDINANCE OR GOVERNMENTAL ORDER OF ANY KIND OR WHEN ANY
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SUCH INJURY OR DAMAGE MAY IN ANY OTHER WAY ARISE FROM OR OUT OF THE OCCUPANCY OR
USE BY TENANT OR ANY OF THE TENANT PARTIES OF THE PREMISES, AND (III) ALL FINES,
SUITS, LOSSES, COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEYS' FEES), LIABILITIES, CLAIMS, DEMANDS, ACTIONS, DAMAGES AND JUDGMENTS
SUFFERED BY, RECOVERED FROM OR ASSERTED AGAINST LANDLORD BY ANY OF THE TENANT
PARTIES EVEN IF FROM LANDLORD'S NEGLIGENCE. THE INDEMNIFICATIONS OF LANDLORD BY
TENANT AS SET FORTH IN THIS SECTION 12.b., SHALL BE EFFECTIVE EXCEPT TO THE
EXTENT SUCH HARM TO LANDLORD RESULTS FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF LANDLORD OR ANY OF ITS DULY AUTHORIZED AGENTS OR EMPLOYEES.
c. Tenant covenants and agrees that in case Landlord shall be made a
party to any litigation with respect to which Xxxxxx has agreed to indemnify
Landlord hereunder or relating to this Lease or to the Premises, then Tenant
shall and will pay all costs and expenses, as the same are incurred, including
reasonable attorneys' fees and court costs, incurred by or imposed upon Landlord
by virtue of any such litigation. Landlord's costs and expenses in such regard
shall be Additional Rental owing by Tenant to Landlord and shall be due and
payable, on demand, together with interest thereon at the Default Rate from the
date of each such expenditure by Landlord to the date of repayment by Xxxxxx.
d. LANDLORD HEREBY AGREES TO INDEMNIFY AND HOLD AND SAVE TENANT WHOLE
AND HARMLESS OF, FROM AND AGAINST ALL FINES, SUITS, CLAIMS, DEMANDS, ACTIONS,
DAMAGES, LOSSES, COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEYS' FEES), LIABILITIES, AND JUDGMENTS SUFFERED BY, RECOVERED FROM OR
ASSERTED AGAINST TENANT ON ACCOUNT OF INJURY OR DAMAGE TO PERSON OR PROPERTY TO
THE EXTENT THAT ANY SUCH DAMAGE OR INJURY MAY HAVE OCCURRED ON THE PREMISES OR
BE INCIDENT TO, ARISE OUT OF, OR BE CAUSED, EITHER PROXIMATELY OR REMOTELY,
WHOLLY OR IN PART, BY ANY ACT, OMISSION, NEGLIGENCE OR MISCONDUCT ON THE PART OF
LANDLORD OR ANY OF LANDLORD'S PARTIES OR WHEN ANY SUCH INJURY OR DAMAGE IS THE
RESULT OF THE VIOLATION BY LANDLORD OR ITS DULY AUTHORIZED AGENTS OR EMPLOYEES
OF ANY MATTER RELATING TO THE STRUCTURAL MATTER OBLIGATIONS OF LENDER HEREUNDER.
THE INDEMNIFICATIONS OF TENANT BY LANDLORD AS SET FORTH IN THIS SECTION 12.d.,
SHALL BE EFFECTIVE EXCEPT TO THE EXTENT SUCH HARM TO TENANT RESULTS FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TENANT OR ANY OF ITS DULY AUTHORIZED
AGENTS OR EMPLOYEES.
e. Landlord covenants and agrees that in case Tenant shall be made a
party to any litigation with respect to which Xxxxxxxx has agreed to indemnify
Tenant hereunder or relating to this Lease or to the Premises, then Landlord
shall and will pay all costs and expenses, as the same are incurred, including
-13-
reasonable attorneys' fees and court costs, incurred by or imposed upon Tenant
by virtue of any such litigation.
14. SUBORDINATION
a. In the event that the Premises are, as of the Lease Date, encumbered
by the lien of a deed of trust, mortgage or other instrument of security, or in
the event that the Land or any part thereof, is on a ground leased estate (which
Landlord represents and warrants that it is not, as of the Lease Date), then
Landlord shall obtain and furnish to Tenant, from the holder of any such
mortgage, deed of trust or other instrument of security (hereinafter
collectively "Mortgages") and from the lessor of any such leasehold estates
---------
(hereinafter collectively "Ground Leases") Subordination, Non-Disturbance and
-------------
Attornment Agreements ("SNDA") in substantially the form as is attached hereto
----
as Exhibit "B" and made a part hereof, with such reasonable changes as may be
acceptable to Tenant and such holders of such Mortgages or lessors under such
Ground Leases. Such SNDA will be obtained and furnished to Tenant within sixty
(60) days after the execution of this Lease and Xxxxxx shall join in the
execution of such SNDA. Upon the execution of such SNDA, this Lease and all
rights of Tenant hereunder shall be subject and subordinate to such Ground
Leases and such Mortgages, and to any and all advances made on the security
thereof, and to any and all increases, renewals, modifications, consolidations,
replacements and extensions of such Mortgages. Tenant shall, however, upon
demand at any time or times execute, acknowledge and deliver to Landlord any and
all instruments and certificates that in the reasonable judgment of Landlord may
be necessary or proper to confirm or evidence such subordination. Additionally,
it shall be a condition to any future subordination of this Lease to any future
Mortgages or Ground Leases, that Tenant and the holders of such future Mortgages
or the lessors of such Ground Leases, as applicable, enter into an SNDA in
substantially the form as is attached hereto as Exhibit "B" and made a part
hereof, with such reasonable changes as may be acceptable to Tenant and such
holders of such Mortgages or lessors under such Ground Leases. Tenant agrees
that the holders of any such Mortgages shall have the right at any time to
subordinate any such Mortgages to this Lease on such terms and subject to such
conditions as such holders may deem appropriate in their discretion so long as
such terms and conditions do not diminish Tenant's rights or increase Tenant's
obligations under this Lease. Tenant further covenants and agrees upon the
foreclosure of any such Mortgages, or sale of the Premises, to attorn to the
purchaser at any such sale or foreclosure and to recognize such purchaser as
Landlord under this Lease. The agreement of Tenant to attorn contained in the
immediately preceding sentence shall survive any such foreclosure sale or
trustee's sale.
b. This Lease and all rights of Tenant hereunder are further subject and
subordinate to (i) all applicable ordinances, laws, and regulations relating to
easements, franchises and other interests or rights upon, across or appurtenant
to the Premises, (ii) all utility easements and agreements, and (iii) all
restrictive covenants applicable to the Premises.
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15. INSPECTION
Landlord, its partners, employees, agents, and representatives shall have
the right to enter into and upon any and all parts of Premises during regular
business hours after providing at least one (1) business day prior notice
(except in the case of an emergency or default by Tenant) (i) to inspect same
for the purposes of satisfying itself of Tenant's compliance with the terms of
this Lease, (ii) to perform maintenance, repairs or replacements (which may
require emergency entrance at any hour), (iii) to show the Premises to
prospective purchasers or lenders and (iv) to show the Premises, during the last
twelve months of the Lease Term, and Tenant shall not be entitled to any
abatement or reduction of rent by reason thereof, nor shall such be deemed to be
an actual or constructive eviction.
16. CONDEMNATION
a. If the whole or such a functionally substantial part of the Premises
(meaning that at least twenty-five percent (25%) of (i) the rentable area in the
Building or (ii) of the Parking Lot is taken (without an adequate alternative
being provided to Tenant by Landlord) should be taken 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 and the taking would
substantially prevent the use of the Premises for the purposes contemplated by
the Permitted Use, then either Landlord or Tenant shall be permitted, upon
written notice given at least thirty (30) days prior to the physical taking, to
terminate this Lease and the rent shall be abated during the unexpired portion
of this Lease, effective when the physical taking of said Premises shall occur.
b. If less than the whole or a functionally substantial part of the
Premises shall be taken for any public or quasi-public use under any
governmental law, ordinance or by right of eminent domain, or by private
purchase in lieu thereof, this Lease shall not terminated and the rent payable
hereunder during the unexpired portion of this Lease shall be reduced or abated
proportionately.
c. In the event of any such taking or private purchase in lieu thereof,
Landlord shall be entitled to receive and retain the entirety of the award
applicable to the fee interest in the Premises and to the Building and other
improvements located thereon. So long as it does not adversely impact Landlord's
award, Tenant shall be permitted to seek a separate award for its business
interruption, moving expenses, and any of its condemned fixtures or personal
property. Tenant shall not be permitted to recover any award for the value of
its lost leasehold estate, provided, however, Tenant shall have the right, in a
separate action, to bring a claim for the value of its lost leasehold estate as
long as such separate action does not adversely impact any award or damage
sought by Landlord pursuant to this Section 16.
17. HOLDING OVER
Should Tenant, or any of its successors in interest, hold over the
Premises, or any part thereof, after the expiration of the Lease Term, unless
otherwise agreed in writing by Landlord, such holding over shall
-15-
constitute and be construed as a tenancy at will only. The first ninety (90)
days of any such holdover shall be at daily rental equal to the daily Rent
payable during the last month of the expired Lease Term and thereafter at a
daily rental equal to one and one-half (1 1/2) times the daily Rent payable for
the last month of the expired Lease Term. The inclusion of the preceding
sentence shall not be construed as Landlord's consent for Tenant to hold over.
18. USE OF ROOF
a. Subject to the terms and conditions hereinafter set forth, Landlord
grants Tenant the right to install, at Tenant's sole cost and expense, such
antennae, satellite and communication dishes and associated equipment (the
"Antenna Equipment") on the roof of the Building as may be permitted by
-----------------
applicable law and restrictive covenants.
b. Tenant shall submit to Landlord for approval by it and its designated
roofing contractor (the "Roofing Contractor") and structural engineer
------------------
("Engineer"), a full set of engineering plans and specifications for the
--------
proposed Antenna Equipment installation, including all required conduit or cable
connections, such approval not to be unreasonably withheld or delayed; provided
however Landlord shall not be required to approve any installations which, in
Landlord's reasonable opinion, will cause, or which have a substantial risk of
causing, damage to the roof or Building. Tenant shall pay the reasonable costs
and expenses incurred by Landlord with respect to the review of such plans and
specifications.
c. Tenant shall obtain all necessary municipal, state, and federal
permits and authorizations, and all deed restriction consents, required to
install, maintain and operate the Antenna Equipment and pay any charges levied
by government agencies associated therewith. Xxxxxxxx agrees to fully cooperate
with Xxxxxx in obtaining all such permits and authorizations, at no cost or
expense to Landlord.
d. At the conclusion of the Lease Term, as the same may have been
extended, Tenant shall pay the costs and expenses of removing the Antenna
Equipment and for repairing the roof of the Building to substantially as good a
condition as existed prior to the installation of the Antenna Equipment, except
for ordinary wear and tear. Such removal shall be performed or supervised, as
determined by Landlord, by Xxxxxxxx's Roofing Contractor and Structural
Engineer.
19. EVENTS OF DEFAULT
The following events shall be deemed to be events of default by Tenant
under this Lease:
a. Tenant shall fail to pay when due any Rent; however Landlord agrees
to give Tenant written notice and five (5) days to cure such failure; provided,
however, that Landlord shall not be obligated to give more than two (2) such
notices in any twelve-month period, and any failure to pay when due after two
such notices in any twelve-month period shall immediately, without the
requirement for the giving of any notice, constitute an event of default
hereunder.
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b. Tenant shall fail to comply with or observe any other term, covenant
or provision of this Lease (or any other, Lease now or hereafter executed by
Tenant in connection with space in the Building) and such failure shall continue
for twenty (20) days after written notice to Tenant of such failure; provided,
however, if such failure to comply is not of a nature which can be reasonably
cured within such period then Tenant shall not be in default of this Lease if it
commences to cure such failure within such twenty (20) day period and thereafter
prosecutes such failure to completion with reasonable diligence and continuity.
c. Tenant shall fail to take possession of the Premises by the
Commencement Date of this Lease or continuously operate its business within the
Premises which, for purposes of this Subsection c. means continuous operation of
two (2) or more pods in the Building by either Tenant or any permitted assignee
or sublessee, for reasons other than force majeure, casualty or condemnation
unless (i) twenty (20) days prior to the date that Tenant fails to take
possession or ceases to continuously operate the required portion of the
Building, Tenant provides written notice to Landlord that it is failing to take
possession or ceasing to continuously operate the required portion of the
Building (the "Initial Premises Notice") and (ii) Tenant, at the time it
provides the Initial Premises Notice, provides to Landlord all financial
information reasonably requested by Landlord to confirm that Tenant will be
financially able to meet its obligations under this Lease despite its failure to
accept the Premises or operate continuously the required portion of the Building
(the "Continuous Operation Requirements"). In the event that Tenant meets the
Continuous Operation Requirements and Tenant otherwise performs all of its
remaining obligations hereunder including, but not limited to, the payment of
Rent and maintenance, Tenant shall have a period of six (6) months from the date
that it fails to take possession or ceases to continuously operate the required
portions of the Building in which to determine whether or not it will assign or
sublet the Building or required portions thereof otherwise in accordance with
the terms and provisions of this Lease or, alternatively, to take possession and
continuously operate the Building or required portions thereof before the
expiration of the aforesaid six (6) month period (the "Tenant Period"). In the
event that Tenant does not notify Landlord in writing on or before the
expiration of the Tenant Period that it has entered into a sublease and/or
assignment of this Lease for the Building or required portions thereof which is
in conformance with the provisions of this Lease or does not otherwise take
possession and continuously operate the Building or required portions thereof,
then from and after such date Landlord, at its option but not its obligation,
shall have a right to begin to market the (i) Building if the Building is vacant
or not subject to a valid sublease or assignment or (ii) if applicable, any one
or more "pods" which are components of the Building not occupied by Tenant or
subject to a valid sublease or assignment which are subject to recapture
hereunder to secure other tenants for either the Building or one or more such
"pods", as applicable. Should Landlord thereafter locate a tenant for all of the
Building or, if applicable, any one or more "pods" within the Building which are
subject to recapture hereunder, then Landlord shall be entitled to terminate
this Lease as to the Building in its entirety if the Building is vacant or not
subject to a valid sublease or assignment or as to the "pod" or "pods" in
question (but in no event a portion less than a full "pod") and recapture either
the entirety of the Premises or the "pod" or "pods" in question (whichever is
applicable) in accordance with this Section 19(c). Landlord shall furnish Tenant
with written notice of such election to recapture, which notice of election to
recapture shall provide for a date of termination of this Lease and recapture of
the Premises or, if applicable, a recapture of such portion of the Premises as
permitted hereby, in which event this Lease shall
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terminate as to such portion which is recaptured (whichever is applicable).
Following such notice of election to recapture, this Lease or the applicable
permitted portion thereof shall terminate and cease upon the date specified in
such notice of election to recapture (the "Termination Date") and effective as
to such Termination Date, Tenant shall be relieved of and from any further
liability or obligation to Landlord under or pursuant to this Lease with regard
to the Premises or recaptured permitted portion (whichever is applicable), save
and except for any reimbursements or other financial obligations including, but
not limited to, Rent which have accrued as of the applicable Termination Date.
In the event of a partial recapture, Rent, Additional Rent and all other
obligations of Tenant shall be determined and prorated based on the square
footage recaptured by Landlord. Unless and until this Lease is terminated in
whole or in the event of a recapture of a permitted portion of the Premises, in
part, Tenant shall remain fully liable for all of its obligations hereunder and
thereafter as to a partial recapture as to the portions not recaptured, and its
failure to accept the Premises or a cessation of continuous operation hereunder
shall in no manner excuse Tenant from the performance of its obligations
hereunder. Landlord shall pay all of its costs and expenses associated with any
such recapture including, but not limited to, brokerage commissions and tenant
improvement costs.
d. Tenant shall file a petition under any section or chapter of the
Federal Bankruptcy Code or any successor statute or any present or future
comparable state law (herein collectively the "Bankruptcy Code"); or Tenant
---------------
shall have entered against it an order for relief in any proceedings filed
against Tenant under any section or chapter of the Bankruptcy Code and such
order is not fully discharged or dismissed within ninety (90) days of the entry
thereof; or a petition proposing the entry of an order for relief as against
Tenant under any section or chapter of the Bankruptcy Code shall be filed in any
court and such petition shall not be discharged or denied within ninety (90)
days after the filing thereof.
e. Tenant shall become insolvent, shall make a transfer in fraud of
creditors, shall make an assignment for the benefit of creditors, shall
generally not pay its debts as they become due, or shall admit in writing its
inability to pay its debts as they become due.
f. A receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant, or of the Premises, or any of Tenant's property located
thereon in any proceeding brought by Tenant or any such receiver or trustee
shall be appointed in any proceeding brought against Tenant and shall not be
discharged within ninety (90) days after such appointment, or Tenant shall
consent to or acquiesce in such appointment.
20. REMEDIES
Upon the occurrence of any event of default specified in this Lease, in
addition to any other remedies available at law, Landlord shall have the option
to pursue any one or more of the following remedies without any additional
notice or demand whatsoever:
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a. Terminate this Lease in which event Xxxxxx shall immediately surrender
the Premises to Landlord, and if Xxxxxx fails to do so, Landlord may, without
prejudice to any other remedy which it may have for possession or arrearages in
Rent, enter upon and take possession and expel or remove Tenant and any other
person who may be occupying said Premises or any part thereof, without being
liable for prosecution or any claim for damages therefor; and Tenant agrees to
pay to Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability to relet the
Premises on satisfactory terms or otherwise, including the present value of all
Rent and other charges for the remainder of the Lease Term, as the same may then
have been extended.
b. Enter upon and take possession of the Premises, without terminating
this Lease, and expel or remove Tenant and any other person who may be occupying
the Premises or any part thereof, without being liable for prosecution or any
claim for damages thereof, and, if Landlord is reasonably able to do so, relet
the Premises on such terms as Landlord shall deem advisable and receive the rent
therefor; and Xxxxxx agrees to pay to Landlord on demand any deficiency that may
arise by reason of such reletting for the remainder of the Lease Term.
c. Enter upon the Premises, without terminating this Lease, and without
being liable for prosecution or any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease; and Xxxxxx agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease, and Xxxxxx
further agrees that Landlord shall not be liable for any damages resulting to
the Tenant from such action.
No re-entry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention be given to Tenant. Notwithstanding any such reletting
or re-entry or taking possession, Landlord may at any time thereafter, and prior
to the curing of any such default by Tenant, elect to terminate this Lease for a
previous default. Landlord may change the door locks to the Building, lock off
access to the Premises, or both, and shall not be obligated to provide Tenant a
key or access to the Building or Premises unless and until Tenant cures all
defaults. Tenant waives any and all duties and/or liabilities imposed upon
Landlord by Section 93.002 of the Texas Property Code. Pursuit of any of the
foregoing remedies shall not preclude pursuit of any of the other remedies
herein provided or any other remedies provided by law, nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained.
Xxxxxxxx's acceptance of rent following an event of default hereunder shall not
be construed as Landlord's waiver of such event of default. No waiver by
Landlord of any violation or breach of any of the terms, provisions, and
covenants herein contained shall be deemed to constitute, or be construed as, a
waiver of any other violation or default. The loss or damage that Landlord may
suffer by reason of termination of this Lease or the deficiency from any
reletting as provided for above shall include, without limitation, the expense
of repossession (including attorneys' fees), any repairs or remodeling
undertaken by Landlord following possession, expenses of removal and storage of
personal property, if any, and any brokerage fee incurred in connection with any
such reletting. Should Landlord at any time terminate this
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Lease for any default, in addition to any other remedy Landlord may have,
Landlord may recover from Tenant all damages Landlord may incur by reason of
such default, including the cost of recovering the Premises and the present
value of all Rent and other charges for the remainder of the Lease Term.
21. SURRENDER OF PREMISES
No act or thing done by Landlord or its agents during the term hereby
granted shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender of the Premises shall be valid unless it is made
in writing and signed by Xxxxxxxx.
22. ATTORNEYS' FEES
In case it should be necessary for either party to bring any action under
this Lease for the enforcement of any of such party's rights hereunder, then in
each and any such case such party shall, if it prevails in such action, be
entitled to recover its reasonable attorneys' fees, court costs and expenses of
litigation. Any and all such attorneys' fees, costs and expenses incurred by
Landlord are deemed to constitute amounts in default which must be paid by
Tenant in order to cure default at the time of assumption as required by Section
365(b) of the Bankruptcy Code.
23. MECHANICS' LIENS
Tenant will not permit any mechanic's or materialmen's lien or liens to be
placed upon the Premises or the Building or other improvements thereon during
the Lease Term, as the same may be extended, caused by or resulting from any
work performed, materials furnished or obligation incurred by or at the request
of Xxxxxx, and in the case of the filing of any such lien, Tenant will promptly
pay same or cause such lien to be bonded with Xxxx to Indemnify Against Lien in
accordance with the provisions of Subchapter H of Chapter 53 of the Texas
Property Code, as the same may be amended from time to time. If default in
payment or bonding thereof shall continue for twenty (20) days after written
notice thereof from Landlord to Tenant, Landlord shall have the right and
privilege at Landlord's option of paying the same or any portion thereof without
inquiry as to the validity thereof, and any amounts so paid, including expenses
and interest, shall be deemed to be Additional Rental owing by Tenant to
Landlord and shall be due and payable, on demand, together with interest thereon
at the Default Rate from the date of such expenditure by Landlord to the date of
repayment by Xxxxxx.
24. WAIVER OF SUBROGATION
Each party hereto hereby waives any and every claim which arises or may
arise in its favor and against the other party hereto, or any claiming through
or under them, by way of subrogation or otherwise, during the Lease Term for any
and all loss of, or damage to, any of its property (whether or not such loss or
damage is caused by the fault or negligence of the other party or anyone for
whom such other party may be responsible), which loss or damage is covered by
valid and collectible fire and extended coverage
-20-
insurance policies, to the extent that such loss or damage is recovered under
such insurance policies. Such waivers shall be in addition to, and not in
limitation or derogation of, any other waiver or release contained in this Lease
with respect to any loss or damage to property of the parties hereto. Inasmuch
as the above mutual waivers will preclude the assignment of any aforesaid claim
by way of subrogation (or otherwise) to an insurance company (or any other
person), each party hereto hereby agrees immediately to give to each insurance
company which has issued to it policies of fire and extended coverage insurance
written notice of the terms of such mutual waivers, and to have such insurance
policies properly endorsed, if necessary, and only to the extent such
endorsement is available on a commercially reasonable basis, to prevent the
invalidation of such insurance coverage by reason of such waivers.
25. SIGNAGE
a. Tenant shall be permitted, at its sole cost and expense, to install
such signage on the Premises (but not on the roof of the Building) as Tenant
desires to install provided that (i) Tenant obtains Landlord's prior written
approval, which approval shall not be unreasonably withheld or delayed and (ii)
that Tenant obtains all permits, licenses, certificates, consents and approvals
which may be required under applicable law or under restrictive covenants
applicable to the Premises.
b. At the end of the Lease Term, as the same may be extended, Tenant
shall, at its sole cost and expense, remove all such signs from the Premises and
restore the Premises so as to remove, in a good and workmanlike manner, all
evidence that such signage had been installed.
26. BROKERAGE
Tenant warrants that it has had no dealings with any broker or agent in
connection with the negotiation or execution of this Lease other than Xxxxxxx &
Xxxxxxxxx of Texas, Inc. ("Tenant's Broker"). Landlord has had no dealings with
---------------
any broker or agent in connection with the negotiation or execution of this
Lease other than Xxxxxx's Broker. Landlord has agreed, pursuant to a separate
agreement, to pay, at the times hereinafter provided, a commission to Xxxxxx's
Broker. Each party agrees to indemnify the other against all costs, expenses,
attorneys' fees or other liability for commissions or other compensation or
charges claimed by any broker or agent (other than Tenant's Broker in accordance
with Landlord's separate agreement with Xxxxxx's Broker) claiming the same by,
through or under such party.
27. ESTOPPEL CERTIFICATES
Xxxxxx agrees to furnish from time to time when requested by Landlord, the
holder or potential holder of any deed of trust or mortgage, the lessor under
any ground lease covering all or any part of the Premises, or any potential
purchaser of the Premises, a certificate signed by Tenant confirming and
containing any such reasonably factual certifications and representations deemed
appropriate by Landlord or such other entity, and Tenant shall, within twenty
(20) days following receipt of such requested certificate, return a fully
executed copy of said certificate to Landlord. In the event Tenant shall fail to
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return a fully executed copy of such certificate to Landlord within the
foregoing twenty day period, then Landlord shall provide a second notice to
Tenant, and if Tenant shall fail to respond within five (5) days thereafter,
Tenant shall be deemed to have approved and confirmed all of the terms,
certifications and representations contained in such certificate.
28. NOTICES
Each provision of this Lease, or of any applicable governmental laws,
ordinances, regulations, and other requirements with reference to the sending,
mailing or delivery of any notice, or with reference to the making of any
payment by Tenant to Landlord, shall be deemed to be complied with when and if
the following steps are taken:
a. All Rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord in Dallas County, Texas, at the address
set forth in the Basic Lease Information or at such other address as Landlord
may specify from time to time by at least thirty (30) days prior written notice
delivered in accordance herewith.
b. Any notice or document required to be delivered hereunder shall be
deemed to be delivered if actually received or, if sooner and whether or not
actually received, upon deposit in the United States mail, postage prepaid,
certified or registered mail (with or without return receipt requested)
addressed to the intended recipient at the appropriate address set forth in the
Basic Lease Information or at such other address as the applicable party has
specified by at least thirty (30) days prior written notice delivered to the
other party hereto in accordance herewith.
29. SEVERABILITY
If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Lease Term, as
the same may be extended, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected thereby
and it is also the intention of the parties to this Lease that in lieu of each
clause or provision of this Lease that is illegal, invalid or unenforceable,
there be automatically added as a part of this Lease a clause or provision as
similar to such illegal, invalid or unenforceable clause or provision as may be
possible and be legal, valid and enforceable.
30. AMENDMENTS; BINDING EFFECT
This Lease may not be altered, changed or amended, except by instrument in
writing signed by both parties hereto. No provision of this Lease shall be
deemed to have been waived by Landlord unless such waiver be in writing signed
by Landlord and addressed to Tenant, nor shall any custom or practice which may
evolve between the parties in the administration of the terms hereof be
construed to waive or lessen the right of Landlord to insist upon the
performance by Xxxxxx in strict accordance with the terms hereof. The terms and
conditions contained in this Lease shall apply to, inure to the benefit of, and
be binding upon
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the parties hereto, and upon their respective successors in interest, legal
representatives and permitted assigns, except as otherwise herein expressly
provided.
31. QUIET ENJOYMENT
Provided Tenant has performed all of the terms and conditions of this
Lease, including the payment of Rent, to be performed by Xxxxxx, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Lease Term, without
hindrance from Landlord, subject to the terms and conditions of this Lease.
32. GENDER
Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
33. PERSONAL LIABILITY
Notwithstanding anything to the contrary contained in this Lease, Xxxxxx
agrees (i) that Tenant will look solely to the estate and interest of Landlord
in the Premises for collection of any judgment or other judicial process
requiring payment of money by Landlord for any default or breach by Landlord
under this Lease, and (ii) that except for Xxxxxxxx's interest in the Premises,
neither Landlord nor its partners or other principals shall have any personal
liability for the performance of any of Landlord's covenants, agreements or
undertakings hereunder.
34. NOTICE TO LENDER
If the Premises, or any part thereof, are at any time subject to a
mortgage or other similar instrument and the Tenant is given written notice
thereof, including the address of such mortgagee, then the Tenant shall not,
following the completion of all required construction by Landlord, take any
remedial action with respect to any alleged default on the part of the Landlord
without first giving written notice thereof, by certified or registered mail,
return receipt requested, to such mortgagee, specifying the alleged default in
reasonable detail, and affording such mortgagee a reasonable period of time (in
no event to be less than forty-five (45) days, save and except for emergency
repairs) within which to make performance, at its election, for and on behalf of
the Landlord.
35. CAPTIONS
The captions contained in this Lease are for convenience of reference
only, and in no way limit or enlarge the terms and conditions of this Lease.
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36. MISCELLANEOUS
a. Each and every covenant and agreement contained in this Lease is,
and shall be construed to be, a separate and independent covenant and agreement.
b. Neither Landlord nor any of its employees, officers or other
representatives have made any representations or promises with respect to the
Premises except as herein expressly set forth.
c. The submission of this Lease to Tenant shall not be construed as an
offer, nor shall Tenant have any rights with respect thereto unless and until
Landlord shall execute a copy of this Lease and deliver the same to Tenant.
d. Tenant agrees that: (i) the individual executing this Lease is duly
authorized to execute and deliver this Lease on behalf of Tenant in accordance
with Tenant's organizational documents; (ii) this Lease is binding upon Tenant;
(iii) Tenant is duly organized and legally existing in the state of its
organization and is qualified to do business in the State of Texas; and (iv)
Tenant has previously delivered, or herewith delivers, a true and correct
resolution of Xxxxxx's Board of Directors authorizing the execution of this
Lease, and evidencing the incumbency and signature of the person signing this
Lease.
e. Landlord agrees that: (i) the individual executing this Lease is
duly authorized to execute and deliver this Lease on behalf of Landlord in
accordance with Xxxxxxxx's organizational documents; (ii) this Lease is binding
upon Landlord; (iii) Landlord is duly organized and legally existing in the
state of its organization and is qualified to do business in the State of Texas;
and (iv) Landlord has previously delivered, or herewith delivers, a true and
correct resolution of Landlord's Board of Directors authorizing the execution of
this Lease, and evidencing the incumbency and signature of the person signing
this Lease.
f. During the term of this Lease or any extension thereof, Landlord
consents to the installation, maintenance and removal by Tenant, at Tenant's
sole cost and expense, of an emergency generator, which generator shall be
located in a location mutually acceptable to Landlord and Tenant. Landlord's
approval of the location of the emergency generator shall not be unreasonably
withheld so long as Tenant installs, maintains and removes the generator in
accordance with the terms and provisions of this Lease.
37. EXHIBITS AND ATTACHMENTS
All exhibits, attachments, riders and addenda referred to in this Lease
and the exhibits listed hereinbelow are incorporated into this Lease and made a
part hereof for all intents and purposes.
Exhibit A - Legal Description
Exhibit B - Form of SNDA
Rider 1 - Renewal Options
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Rider 2 - Construction Agreement
Rider 3 - Rent Calculation
Rider 4 - Adjacent Land
38. INDEMNITY OBLIGATIONS
EACH PARTY ACKNOWLEDGES THAT, PURSUANT TO THE PROVISIONS OF SECTIONS 13
AND 26 OF THIS LEASE, THAT IT IS OBLIGATED TO INDEMNIFY THE OTHER PARTY HERETO.
DATED as of the Lease Date.
LANDLORD: TENANT:
DALMAC/GOLDCOR REAL ESTATE PANJA INC.,
VENTURE, LTD., a Texas corporation
a Texas limited partnership
By: XXXXXX XXXXXX, LTD., By: /s/ Xxx Xxxxx
-------------------------
a Texas limited partnership Name: Xxx Xxxxx
-------------------
Title: President & CEO
------------------
By: DalMac Real Estate, Inc.,
a Texas corporation,
Its General Partner
By:/s/ X.X. XxXxxxxx
-------------------
Name: X.X. XxXxxxxx
-----------------
Title: President
----------------
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EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
FORM OF SNDA
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
----------------------------------------
THIS AGREEMENT is entered into by and among Tenant, Landlord, and
Beneficiary and affects the real property described in Exhibit A attached
hereto. The terms "Tenant," "Landlord," "Beneficiary," "Premises," "Lease,"
"Loan," "Note," and "Mortgage" are defined in the Schedule of Definitions
attached hereto as Exhibit B. This Agreement is entered into with reference to
the following facts:
X. Xxxxxxxx and Tenant have entered into the Lease covering the
Premises.
B. Beneficiary has agreed to make the Loan to Landlord to be
evidenced by the Note, which Note is to be secured by the
Mortgage covering the Premises provided that the Lease is
subordinate to the lien of the Mortgage.
C. For the purposes of completing the Loan, the parties hereto
desire expressly to acknowledge the subordination of the Lease to
the lien of the Mortgage, it being condition precedent to
Beneficiary's obligation to consummate the Loan that the lien of
the Mortgage be unconditionally and at all times prior and
superior to the leasehold interests and estates created by the
Lease.
X. Xxxxxx has requested that Beneficiary agree not to disturb
Tenant's possessory rights in the Premises in the event
Beneficiary should foreclose the Mortgage; provided that Tenant
is not then in default under the Lease and provided further that
Tenant attorns to Beneficiary or the purchaser at any foreclosure
or trustee's sale of the Premises.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and of other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Subordination. Notwithstanding anything to the contrary set forth
in the Lease, Tenant hereby acknowledges that the Lease and the
leasehold estate created thereby and all of Tenant's rights
thereunder are and shall be and shall at all times remain
subject, subordinate and inferior to the Mortgage and the lien
thereof, and all rights of Beneficiary thereunder and to any and
all renewals, modifications, consolidations, replacements and
extensions thereof.
2. Acknowledgment and Agreement by Xxxxxx. Tenant acknowledges that:
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(a) Beneficiary would not make the Loan without this Agreement;
(b) It consents to and approves the Mortgage and the agreements
evidencing and securing the Loan; and
(c) Beneficiary, in making any disbursements to Landlord, is under no
obligation or duty to oversee or direct the application of the
proceeds of such disbursements, and such proceeds may be used by
Landlord for purposes other than improvement of the Premises.
(d) From and after the date hereof, in the event of any act or
omission by Landlord which would give Tenant the right, either
immediately or after the lapse of time, to terminate the Lease or
to claim a partial or total eviction, Tenant will not exercise
any such right:
(i) until it has given written notice of such act or omission
to Beneficiary and a thirty (30) day opportunity for it to
cure same; and, if Landlord has failed to effect a cure
within such thirty (30) day period, then
(ii) forty-five (45) days shall have elapsed following such
giving of notice to Beneficiary and following the time
when Beneficiary shall have become entitled under the
Mortgage to remedy the same.
(e) It has notice that the Lease and the rent and all other sums due
thereunder have been assigned or are to be assigned to
Beneficiary as security for the Loan secured by the Mortgage. In
the event that Beneficiary notifies Tenant of a default under the
Mortgage and demands that Tenant pay its rent and all other sums
due under the Lease to Beneficiary, Tenant shall honor such
demand and pay its rent and all other sums due under the Lease
directly to Beneficiary or as otherwise required pursuant to such
notice.
(f) It shall send a copy of any notice or statement under the Lease
to Beneficiary at the same time such notice or statement is sent
to Landlord.
(g) It has no right or option of any nature, whatsoever, whether
pursuant to the Lease, or otherwise, to purchase the Premises, or
any portion thereof or any interest therein, and to the extent
that Tenant has had, or hereafter acquires, any such right
-2-
or option, the same is hereby acknowledged to be subject and
subordinate to the Mortgage and is hereby waived and released as
against Beneficiary.
(h) This Agreement satisfies any condition or requirement in the
Lease relating to the granting of a non-disturbance agreement.
3. Foreclosure and Sale. In the event of foreclosure of the Mortgage, or
upon a sale of the Premises pursuant to the trustee's power of sale
contained therein, or upon a transfer of the Premises by conveyance in
lieu of foreclosure, then:
(a) Non-Disturbance. So long as Tenant complies with this Agreement
and is not in default under any of the terms, covenants, or
conditions of the Lease beyond any applicable cure period, the
Lease shall continue in full force and effect as a direct lease
between the succeeding owner of the Premises and Tenant, upon and
subject to all of the terms, covenants and conditions of the
Lease, including renewal options, for the balance of the term of
the Lease, including any renewal terms. Tenant hereby agrees to
adhere to, attorn to and accept any such successor owner as
landlord under the Lease, and to be bound by and perform all of
the obligations imposed by the Lease, and Beneficiary, or any
such successor owner of the Premises, will not disturb the
possession of Tenant, and will be bound by all of the obligations
imposed on the Landlord by the Lease; provided, however, that
Beneficiary, or any purchaser at a trustee's or sheriff's sale or
any successor owner of the Premises shall not be:
(i) liable for any act or omission of a prior landlord
(including Landlord); or
(ii) subject to any offsets or defenses which Tenant might
have against any prior landlord (including Landlord); or
(iii) bound by any rent or additional rent which Tenant might
have paid in advance to any prior landlord (including
Landlord) for a period in excess of one month or other
prepaid charge which Tenant might have paid to any prior
landlord (including Landlord) unless such security
deposit or other deposit has been physically and
unconditionally delivered to Beneficiary; or
(iv) bound by any agreement or modification of the Lease made
without the written consent of Beneficiary; or
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(v) bound or liable under any provision in the Lease whereby
the landlord (including the Landlord) assumed the
obligations of Tenant under leases previously executed by
Tenant covering space in other buildings.
(b) New Lease. Upon the written request of either Beneficiary or
Tenant to the other given at the time of any foreclosure,
trustee's sale or conveyance in lieu thereof, the parties agree
to execute a lease of the Premises upon the same terms and
conditions as the Lease between Landlord and Tenant, which Lease
shall cover any unexpired terms of the Lease existing prior to
such foreclosure, trustee's sale or conveyance in lieu of
foreclosure.
(c) Beneficiary shall have no responsibility to provide (or liability
for not providing) any additional space described on Rider 4 of
the Lease for which Tenant has any option or right under the
Lease unless Beneficiary at its option elects to provide the
same, and agrees that Tenant shall have no right to counsel the
Lease, xxxxx rent or assert any claim against Beneficiary as a
result of the failure to provide for any additional space.
4. Acknowledgment and Agreement by Landlord. Xxxxxxxx, as landlord under
the Lease and mortgagor or trustor under the Mortgage, acknowledges and
agrees for itself and its heirs, successors and assigns, that:
(a) This agreement does not:
(i) constitute a waiver by Beneficiary of any of its rights
under the Mortgage; and/or
(ii) in any way release Landlord from its obligations to comply
with the terms, provisions, conditions, covenants,
agreements and clauses of the Mortgage;
(b) The provisions of the Mortgage remain in full force and effect
and must be complied with by Landlord; and
(c) In the event of a default under the Mortgage, Tenant may pay all
rent and all other sums due under the Lease to Beneficiary as
provided in this Agreement.
5. No Obligation of Beneficiary. Beneficiary shall have no obligation or
incur any liability with respect to the erection or completion of the
improvements in which the Premises are
-4-
located or for completion of the Premises or any improvements for Tenant's
use and occupancy, either at the commencement of the term of the Lease or
upon any renewal or extension thereof or upon the addition of additional
space, pursuant to any expansion rights contained in the Lease.
6. Notice. All notices hereunder to Beneficiary shall be deemed to have been
duly given if mailed by United States registered or certified mail, with
return receipt requested, postage prepaid to Beneficiary at its address set
forth in Exhibit B attached hereto (or at such other address as shall be
given in writing by Beneficiary to Tenant) and shall be deemed complete
upon any such mailing.
7. Miscellaneous.
(a) This Agreement supersedes any inconsistent provision of the Lease.
(b) Nothing contained in this Agreement shall be construed to derogate
from or in any way impair or affect the lien and charge or provisions
of the Mortgage.
(c) Beneficiary shall have no obligations nor incur any liability with
respect to any warranties of any nature whatsoever, whether pursuant
to the Lease or otherwise, including, without limitation, any
warranties respecting use, compliance with zoning, Landlord's title,
Xxxxxxxx's authority, habitability, fitness for purpose or possession.
(d) In the event that Beneficiary shall acquire title to the Premises
Beneficiary shall have no obligation, nor incur any liability, beyond
Beneficiary's then equity interest, if any, in the Premises, and
Tenant shall look exclusively to such equity interest of Beneficiary,
if any, in the Premises for the payment and discharge of any
obligations imposed upon Beneficiary hereunder or under the Lease, and
Beneficiary is hereby released and relieved of any other obligations
hereunder and under the Lease.
(e) This Agreement shall inure to the benefit of the parties hereto, their
respective successors and permitted assigns; provided however, that in
the event of the assignment or transfer of the interest of
Beneficiary, all obligations and liabilities of Beneficiary under this
Agreement shall terminate, and thereupon all such obligations and
liabilities shall be the responsibility of the party to whom
Beneficiary's interest is assigned or transferred; and provided
further that the
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interest of Tenant under this Agreement may not be assigned or
transferred without the prior written consent of Beneficiary.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State in which the Premises are located.
IN WITNESS WHEREOF, the parties have executed this Subordination, Non-
Disturbance, and Attornment Agreement as of , 200___.
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS SUBORDINATION, NON-
DISTURBANCE AND ATTORNMENT AGREEMENT, THE PARTIES CONSULT WITH THEIR ATTORNEYS
WITH RESPECT THERETO.
BENEFICIARY: ______________________________________
a_____________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
TENANT: ______________________________________
a_____________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
LANDLORD: ______________________________________
a_____________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
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STATE OF _________ (S)
(S)
COUNTY OF ________ (S)
This instrument was ACKNOWLEDGED before me on _____________, 200__, by
_________________________________.
[SEAL]
________________________________________
Notary Public, State of __________
My Commission Expires:
________________________________________
______________________ Printed Name of Notary Public
STATE OF _______ (S)
(S)
COUNTY OF ________ (S)
This instrument was ACKNOWLEDG before me on _____________, 200__, by
____________________________, _________________ of
______________________________, a ______________ corporation, on behalf of said
corporation.
[SEAL]
_______________________________________
Notary Public, State of __________
My Commission Expires:
_______________________________________
______________________ Printed Name of Notary Public
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STATE OF _______ (S)
(S)
COUNTY OF ________ (S)
This instrument was ACKNOWLEDG before me on _____________, 200__, by
____________________________, _________________ of
______________________________, a ______________ corporation, on behalf of said
corporation.
[SEAL]
_______________________________________
Notary Public, State of __________
My Commission Expires:
_______________________________________
______________________ Printed Name of Notary Public
-8-
Legal Description
-----------------
EXHIBIT A
Schedule of Definitions
-----------------------
"Beneficiary" shall mean__________________________, a ____________ and any
successors and assigns and third party transferees whether in foreclosure or
otherwise. All notices hereunder to Beneficiary shall be mailed to:
with a copy to:
__________________________ __________________________
__________________________ __________________________
__________________________ __________________________
Attn:_____________________ Attn:_____________________
"Mortgage" shall mean a first lien Mortgage or Deed of Trust and Security
Agreement with assignment or Rents dated as of as Mortgagor or Trustor, to
_______________, ________, encumbering the Premises, executed by Landlord,
_____________________________, a _____________________, as Trustee, in favor of
Beneficiary, securing repayment of the Loan evidenced by the Note, to be
recorded in the records of the County in which the Premises are located.
"Landlord" shall mean _______________________, a ______________________
______________, having an office at ____________________________.
"Lease shall mean a certain lease entered into by and among Landlord and
Xxxxxx dated as of _____, 19 ______, covering the Premises.
"Loan" shall mean a first mortgage loan in an amount up to $__________
from Beneficiary to Landlord.
"Note" shall mean that certain Promissory Note executed by Landlord in
favor of Beneficiary, dated as of _____, ______, in the amount of $_______.
"Premises" shall mean the real property described on Exhibit "A" together
with all buildings and other improvements located thereon.
"Tenant" shall mean ____________________________, a _____________________,
whose address for notice is ________________________________________________.
RIDER 1
RENEWAL OPTIONS
So long as no default under this Lease exists either at the time of
exercise or at the time a Renewal Term (hereinafter defined) commences, provided
that the Lease Term, as the same may have been previously extended in accordance
with the provisions hereof, is then in full force and effect, and provided that
Tenant has fulfilled all of the notice conditions hereinafter set forth, Tenant
shall have the option to renew the Lease Term, as the same may have been
previously extended in accordance with the provisions hereof, for Two (2)
additional successive terms of sixty (60) months each (collectively the "Renewal
-------
Terms" and individually a "Renewal Term"). In order to exercise a Renewal Option
----- ------------
(herein so called), Tenant shall give Landlord written notice of its desire to
do so no earlier than four hundred fifty (450) days prior to the expiration of
the initial Lease Term or first Renewal Term, as applicable, and no later than
two hundred forty (240) days prior to the expiration of the initial Lease Term
or first Renewal Term, as applicable. All terms and conditions of this Lease
shall be as set forth in this Lease during each Renewal Term except that the
Base Rental payable during each Renewal Term shall be the Fair Market Rental
(herein so called) for the Premises determined as follows:
(1) By mutual agreement between Landlord and Xxxxxx reached
within thirty (30) days after the date on which Tenant exercises a Renewal
Option; or
(2) If Landlord and Tenant have not agreed upon Fair Market
Rental within such thirty (30) day period, then each shall appoint, by written
notice to the other, an independent real estate appraiser who is a Member
Appraisal Institute (M.A.I.), who has not worked for or on behalf of, in any
capacity, the appointing party for at least the preceding six (6) years, and who
has at least ten (10) years prior experience in appraising rental values of
properties similar to the Premises. If either party fails to appoint such a real
estate appraiser within twenty (20) days following the written demand by the
other party, then the appraiser who was appointed shall select the second
appraiser. Such two appraisers shall proceed to determine the Fair Market Rental
of the Premises. If such two appraisers are unable to agree upon the Fair Market
Rental of the Premises, within thirty (30) days of appointment, then they shall
jointly appoint a third appraiser who is similarly qualified and, within thirty
(30) days after the third appraiser is appointed, they shall determine the Fair
Market Rental, which shall be that amount upon which any two of such three
appraisers agree, or if no such agreement is reached that amount which
represents the arithmetic average of the two rates determined by such appraisers
which are numerically closest to one another, or, if all rates are numerically
equidistant, the arithmetic average of all three such rates. Each party shall
have the responsibility for paying the appraiser which was, or which should have
been, appointed by such party and each shall pay one-half (1/2) of the costs and
expenses of the third appraiser if one is appointed. In the event that the
foregoing appraisals are not completed by the expiration date of the initial
Lease Term, first Renewal Term, or second Renewal Term, as applicable, this
Lease shall continue in full force and effect (but in no event beyond the end of
the then current Renewal Term if Tenant has not exercised its Renewal
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Option to extend the Lease Term for the ensuing Renewal Term) with Tenant paying
the Base Rental in effect at the end of the Lease Term, or First Renewal Term,
or second Renewal Term, as applicable, until Fair Market Rental is determined at
which time appropriate adjustments, relating back to the commencement of the
applicable Renewal Term shall be made between Landlord and Tenant. The
termination of the Lease at the end of any Renewal Term shall not terminate
Landlord's and Tenant's obligation to make the appropriate adjustments in the
Base Rental which was payable during the expiring Renewal Term if, for some
reason, the determination of Fair Market Rental for such expiring Renewal Term
has not been completed by the date on which the Lease terminates. The
determination of Fair Market Rental by the appraisers appointed in accordance
with the foregoing provisions is final and binding on both Landlord and Tenant.
At the commencement of each of the Renewal Terms, Landlord shall
provide a refurbishment allowance to Tenant in an amount which does not, in each
instance, exceed $3.00 per square foot of space in the Building. Landlord shall
pay such refurbishment allowance to Tenant upon receipt of invoices, lien
waivers and other documentation reflecting that all refurbishment work has been
completed, in a good and workmanlike manner, free and clear of all liens and
claims; the refurbishment allowance may only be used for refurbishment and not
for Tenant's furniture, fixtures or equipment. No portion of a refurbishment
allowance which is not actually used to pay refurbishment costs shall be paid to
Tenant.
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