BASIC LEASE INFORMATION
Lease Date: February 10, 1999.
Tenant: FLASHNET COMMUNICATIONS, INC.
Address of Tenant: 0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxxx
Landlord: Mercantile Partners, L.P., a Texas limited partnership
Address of 0000 Xxxxxxx Xxxx.
Landlord: Fort Worth, Texas 76137-4203
Phone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Common Areas: Areas devoted to corridors, elevator foyers, restrooms,
mechanical rooms, janitor closets, and other similar
facilities for the use of all tenants on the particular
floor of the Building, excluding vending areas, meeting
rooms, recreational areas, and the like for the use of all
tenants in the Building.
Premises: Suite No. 100 which is located in the office building
located at 0000 Xxxxxxx Xxxx., Xxxx Xxxxx, Xxxxx, and known
as Mercantile Center One Building (the "Building") as more
particularly described in EXHIBIT A attached hereto and made
a part hereof.
Lease Term: A term of ten (10) years commencing on July 1, 1999 (the
"Commencement Date"), and continuing until June 30, 2009.
Basic Rental: See Rider 1 to this lease.
Security Deposit: - 0 -
Tenant's
Proportionate
Share: The percentage is 26.8% which expresses the ratio between
the number of square feet of Rentable Area comprising the
Premises (30,866), and the 115,024 square feet of Rentable
Area contained in the Building.
Rentable Area: Shall refer to (i) in the case of a single tenancy floor,
all floor area within the inside surface of the outer glass
or exterior walls of the Building,
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excluding only the areas ("Service Areas" or "Building
Common Areas" "Common Areas") within the outside walls used
for elevator equipment rooms, building stairs, fire towers,
elevator shafts, flues, vents, stacks, pipe shafts, and
vertical ducts, but including any Service Areas which are
for the specific use of the particular tenant, such
as special stairs or elevators, plus an allocation of
the square footage of the Building's lobbies, corridors,
mechanical rooms, vending areas, meeting rooms, recreational
areas, and the like for the use of all tenants in the
Building, and (ii) in the case of a floor to be occupied by
more than one tenant, all floor areas within the inside
surface of the outer glass or exterior walls enclosing the
Premises on such floor and measured to the midpoint of the
walls separating the Premises from areas leased by or held
for lease to other tenants or from Common Areas, plus an
allocation of all the Common Areas located on such floor,
plus an allocation of the square footage of the Building's
lobbies, vending areas, meeting rooms, recreational areas,
and the like for the use of all tenants in the Building.
No deductions from Rentable Area shall be made for
columns or projections necessary to the Building. The
Rentable Area in the Premises will be calculated on the
basis of the foregoing definition and stipulated for all
purposes hereof to be 30,866 square feet.
Estimated
Commencement
Date: July 1, 1999.
Base Year
Expenses: The total amount of actual Operating Expenses incurred with
respect to the Building during the 1999 calendar year.
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:
MERCANTILE PARTNERS, L.P., FLASHNET COMMUNICATIONS, INC.,
a Texas limited partnership a Texas corporation
By: Mercantile Corporation By: /s/ X. Xxxxx Xxxxxx
of Fort Worth, a Texas Printed Name: X. Xxxxx Xxxxxx
corporation, General Title: President
Partner
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Printed Name: Xxxxxxx Xxxxxxx
-----------------
Title: Vice President
------------------------
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TABLE OF CONTENTS
Page
1. DEFINITIONS AND BASIC PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . .1
2. LEASE GRANT; OPTION TO RENEW;
SPECIAL TERMINATION PROVISION . . . . . . . . . . . . . . . . . . . . . . . . .1
3. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
4. LANDLORD'S OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
5. TENANT'S ADDITIONAL RENTAL OBLIGATION . . . . . . . . . . . . . . . . . . . . .6
6. CONSTRUCTION OF FINISH WORK IN PREMISES . . . . . . . . . . . . . . . . . . . .7
7. USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
8. TENANT'S REPAIRS AND ALTERATIONS. . . . . . . . . . . . . . . . . . . . . . . .8
9. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . . .9
10. INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12. RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
13. INSPECTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
14. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
15. FIRE OR OTHER CASUALTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
16. HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
17. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
18. EVENTS AND DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
19. REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
20. SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2l. ATTORNEYS' FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
22. LANDLORD'S LIEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23. MECHANICS' LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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24. NO SUBROGATION; LIABILITY INSURANCE . . . . . . . . . . . . . . . . . . . . . 20
25. TENANT'S NEED FOR LARGER SPACE;
RIGHT OF FIRST REFUSAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
26. CHANGE OF BUILDING NAME . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
27. ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
28. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
29. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
30. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
31. AMENDMENTS; BINDING EFFECT. . . . . . . . . . . . . . . . . . . . . . . . . . 24
32. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
33. GENDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
34. JOINT AND SEVERAL LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 24
35. PERSONAL LIABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
36. CERTAIN RIGHTS RESERVED BY LANDLORD . . . . . . . . . . . . . . . . . . . . . 25
37. NOTICE TO LENDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
38. CAPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
39. PLACE OF PERFORMANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
40. BROKERAGE COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
41. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
42. RECORDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
43. ACCORD AND SATISFACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
44. TIME OF ESSENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
45. AUTHORITY TO EXECUTE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
46. DISCLAIMER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
47. TENANT'S OBLIGATIONS REGARDING HAZARDOUS SUBSTANCES . . . . . . . . . . . . . 28
48. RIGHT TO CONTEST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
49. PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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50. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Exhibit A - Outline of Premises
Exhibit B - Rules and Regulations
Exhibit C - Work Letter
Exhibit D - Tenant's Parking Area
Exhibit E - Memorandum of Lease Agreement
Exhibit F - Sign Criteria
Rider 1 - Schedule of Basic Rental
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LEASE AGREEMENT
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
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.
2. LEASE GRANT; OPTION TO RENEW; SPECIAL TERMINATION PROVISION
Landlord, in consideration of the rent to be paid and the other
covenants and agreements to be performed by Xxxxxx and upon the terms
hereinafter stated, does hereby lease, demise and let unto Tenant the
Premises, as generally outlined on the plan attached hereto as EXHIBIT A,
commencing on the Commencement Date and ending on the last day of the Lease
Term, unless sooner terminated as herein provided. If this lease is executed
before the Premises become vacant, or otherwise available and ready for
occupancy, or if any present tenant or occupant of the Premises fails to
vacate the Premises prior to the Estimated Commencement Date of this lease,
Landlord shall not be deemed to be in default hereunder, and Xxxxxx agrees to
accept possession of the Premises on such date as Landlord is able to tender
the same, which date shall be deemed to be the Commencement Date of this
lease for all purposes, and this lease shall continue for the Lease Term
specified in the Basic Lease Information. However, in the event that
Xxxxxxxx fails to deliver possession of the Premises to Tenant within 120
days after the Estimated Commencement Date unless such delay is caused by any
of the matters referred to in paragraph 4 of EXHIBIT C to this lease, Tenant
may, as Xxxxxx's sole remedy, terminate this lease if Xxxxxxxx receives from
Tenant within twenty (20) days after the expiration of such 120 day period
written notice that Tenant is terminating this lease. If Landlord does not
receive from Tenant such written notice of termination within such twenty
(20) day period, then Tenant shall be deemed to have waived Tenant's right to
terminate this lease under this SECTION 2. By occupying the Premises, Tenant
shall be thereafter deemed to have accepted the same as suitable for the
purpose herein intended and to have acknowledged that the same comply fully
with Landlord's obligations under this lease, notwithstanding that certain
"punch list" type items may not have been completed. Within ten (l0) days
after written request of Landlord, Xxxxxx agrees to give Landlord a letter
confirming the Commencement Date and certifying that Xxxxxx has accepted
delivery of the Premises
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and that the condition of the Premises complies with Landlord's obligations
hereunder. Tenant hereby waives any implied or express warranties of
habitability, suitability, merchantability, quality, condition or fitness for
a particular purpose with respect to the Premises. In addition, the taking
of possession of the Premises by Tenant shall be conclusive evidence that
Xxxxxx has inspected the Premises and is thoroughly familiar with its
condition, and Tenant hereby accepts the Premises as being in good and
satisfactory condition and suitable for Xxxxxx's intended commercial purpose.
Tenant shall have, and is hereby given, one (1) option to renew and
extend the Lease Term, such option to follow upon the expiration of the
initial Lease Term of this lease, provided that at the time the option to
renew is exercised, this lease shall be in full force and effect and Tenant
shall not be in default hereunder. Such renewal option shall be for a term
of five (5) years. Such option shall be exercised by Xxxxxx's giving written
notice of its intention to renew and extend the term of this lease to
Landlord at least One Hundred Twenty (120) days before the expiration of the
initial Lease Term. If Landlord does not receive Xxxxxx's written notice of
its intention to renew at least One Hundred Twenty (120) days before the
expiration of the initial Lease Term, then Tenant shall be deemed to have
waived Tenant's option to renew. The renewal and extension of this lease
shall be on and under the same covenants, agreements, terms, provisions, and
conditions as are contained herein for the initial Lease Term, except the
Basic Rental (as hereinafter defined) shall be the then-current Market Rental
Rate (as hereinafter defined). The term "Market Rental Rate" shall be that
rate charged for the leasing of space of comparable size and conditions in
comparable buildings in the Fort Worth, Texas real estate market, by further
taking into consideration the following: (i) the location, quality and age of
the Building; (ii) the use, location, size and/or floor level of the space in
question; (iii) the extent of leasehold improvements; (iv) abatements
(including with respect to base rental, operating expenses, real estate
taxes, and parking charges); (v) relocation, moving allowances, space and
planning allowances; (vi) refurbishment and repainting allowances; (vii)
distinction between "gross" and "net" lease and the services to be provided;
(viii) base year and dollar amount for escalation purposes (both operating
expenses and real estate taxes) and inclusion or exclusion of electricity
charges; (ix) credit standing and financial stature of the tenant; (x) term
or length of lease; (xi) whether a broker is representing the tenant; and
(xii) any other relevant term or condition in making such "fair market
value." In the event that Landlord and Tenant are unable to agree on the
"Market Rental Rate" then, at Landlord's or Tenant's option, same shall be
submitted to arbitration with specific methodology which shall be mutually
acceptable to Landlord and Tenant.
Tenant may terminate this lease effective as of the fifth (5th)
anniversary of the Commencement Date by written notice to Landlord delivered
on or before six (6) months before such fifth (5) anniversary of the
Commencement Date. If Tenant elects to terminate this lease, Tenant shall
make a payment in cash ("Cancellation Payment") to Landlord within thirty
(30) days after the date of such termination notice in the
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amount of $694,693.41. Such Cancellation Payment is calculated based on the
following components: (i) $403,153.75 for unamortized Finish Work;(ii)
$102,228.19 for unearned leasing commission; and (iii) $189,311.47 for unpaid
rent.] Neither Landlord nor Tenant shall have any obligations to the other
following such termination and payment by Tenant to Landlord of the
Cancellation Payment except for those obligations of Landlord and Tenant
which survive the expiration or termination of this lease as specified in
this lease. In the event Landlord has not received from tenant written
notice of termination of this lease on or before that date which is six (6)
months before the fifth (5th) anniversary of the Commencement Date, Tenant
shall be deemed to have waived Tenant's right to terminate this lease
pursuant to this SECTION 2.
3. RENT
In consideration of this lease, Xxxxxx promises and agrees to pay
Landlord the Basic Rental (subject to adjustment as hereinafter provided)
without demand, deduction or set off, for each month of the Lease Term. The
first such monthly installment of Basic Rental shall be payable by Tenant to
Landlord on the Commencement Date and continuing thereafter on or before the
first day of each succeeding calendar month during the Lease Term. Rent
(herein meaning Basic Rental, as adjusted, Additional Rental, plus any other
monetary sums due from Tenant to Landlord pursuant to the terms of this
lease) for any fractional month at the beginning of the Lease Term shall be
prorated based on one three hundred sixty-fifth (1/365) of the current annual
Basic Rental for each day of the partial month that this lease is in effect,
and shall be due and payable on or before the Commencement Date. In the event
any installment of Rent is not received within ten (l0) 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 the Rent, a late payment charge equal to seven percent
(7%) of the installment of the Rent, it being understood that said late
payment charge shall constitute liquidated damages (but shall not void the
occurrence of an event of 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 late installment payments of
the Rent; and Tenant and Xxxxxxxx agree that the damages suffered by Landlord
in the event of any such late payment(s) are not capable of being ascertained
precisely, and that the foregoing charge 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 sums which may have
been advanced by Landlord to or for the benefit of Tenant pursuant to the
provisions of this lease, it being understood that such advanced sums shall
bear interest, which Xxxxxx 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.
4. LANDLORD'S OBLIGATIONS
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a. Subject to the limitations hereinafter set forth, while Tenant
is occupying the Premises Landlord agrees to furnish Tenant facilities to
provide (i) water (hot, cold and refrigerated) at those points of supply
provided for general use of tenants of the Building; (ii) heated and
refrigerated air conditioning in season, at such times as Landlord normally
furnishes these services to all tenants of the Building, and at such
temperatures in the Premises as Tenant determines based on Tenant's own
thermostat settings and in such amounts as are considered by Landlord to be
standard,(iii) janitorial service to the Premises on weekdays other than
holidays for Building standard installations (it being understood that
Landlord reserves the right to xxxx Xxxxxx separately for extra janitorial
service required by reason of non-standard installations) and such window
washing as may from time from time in the Landlord's judgment be reasonably
required; (iv) operatorless passenger elevators for ingress and egress to the
floors on which the Premises are located, in common with other tenants,
provided that Landlord may reasonably limit the number of elevators to be in
operation at times other than during customary business hours for the
Building and on holidays; and (v) replacement of Building standard light
bulbs and fluorescent tubes, provided that Landlord's standard charge for
such bulbs and tubes shall be paid by Tenant as part of the Actual Operating
Expenses. In addition, Xxxxxxxx agrees to maintain the Common Areas and
other public areas of the Building in reasonably good order and condition,
except for damage occasioned by Tenant, or its employees, agents or invitees.
If Tenant shall desire any of the services specified in this SECTION 4 at
night or on Saturday, Sunday or holidays, such service or services shall be
supplied to Tenant only at the written request of Tenant delivered to
Landlord before 12:00 noon on the business day preceding such requested extra
usage, and Tenant shall pay to Landlord as Additional Rental the amount
charged to Tenant for such service or services immediately upon receipt of a
bill therefor.
b. Landlord, subject to payment by Tenant as set forth below,
shall make available to Tenant facilities to provide all electrical current
required by Tenant for normal use and occupancy of the Premises and further
shall make available electric lighting and current for the Common Areas in
the manner and to the extent deemed by Landlord to be standard. The
electrical service to the Premises shall be separately metered. Landlord
shall have such separate metering installed as part of the Finish Work and
paid for out of the Finish Budget. Tenant will be billed monthly from such
separately metered electricity and reimburse Landlord on demand for all
charges for such separately metered electricity, provided that no such
separate metering shall relieve Tenant from its obligation to pay Tenant's
Proportionate Share of electrical charges or other utility charges as well as
Tenant's Proportionate Share of electrical charges of all electricity and
other utilities used in operating the Building (other than those tenants'
premises which are submetered), the Common Areas, lobbies and other portions
of the Building. If the electrical service to the Premises is ever not
separately metered, then Tenant shall reimburse Landlord on demand for
Tenant's Proportionate Share of all charges for electrical service and other
utilities consumed within the
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Building and all other utility charges for utility services to the Building
and the Common Area, lobbies and other public portions of the Building.
Without Landlord's prior written consent which shall not be unreasonably
withheld, Tenant shall not install any equipment which shall require for its
use other than the normal electrical current or other utility service;
provided, however, that Tenant may utilize electronic data processing
equipment which uses 220 volt power; and Landlord agrees, at Xxxxxx's sole
cost and expense, to provide the electrical facilities for such equipment.
Whenever heat generating machines or equipment (other than general office
machines which use 110 volt electrical power) which affect the temperature
otherwise maintained by the air conditioning system or otherwise overload any
utility are used in the premises by Tenant, Landlord shall have the right to
install supplemental air conditioning units or other supplemental equipment
in the Premises, and the cost thereof, including the cost of installations,
operation, use and maintenance, shall be paid by Tenant to Landlord on
demand. The obligation of the Landlord hereunder to make available such
utilities shall be subject to the rules and regulations of the supplier of
such utilities and of any municipal or other governmental authority
regulating the business of providing such utility service. Landlord shall
not in any wise be liable or responsible to Tenant for any loss or damage or
expense which Tenant may sustain or incur if either the quantity or character
of any utility service is changed or is no longer available or is no longer
suitable for Tenant's requirements. Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity of existing
feeders to the Building or the risers or wiring installations. Any riser or
risers or wiring necessary to meet Tenant's excess electrical requirements
will be installed by Landlord at the sole cost and expense of Tenant (if, in
Landlord's reasonable judgment, the same are necessary and will not cause
permanent damage or injury to the Building or the Premises or cause or create
a dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs, or expense or interfere with or disturb other tenants
or occupants). Tenant may install, with Xxxxxxxx's prior written approval, a
200 kilowatt generator to provide emergency electric service to the Premises.
Xxxxxxxx agrees to reasonably cooperate with Xxxxxx in placing the generator
and running conduit and wiring. The cost of such generator, conduit, wiring
and installation shall be paid out of the Finish Allowance (as hereinafter
defined).
c. Failure to any extent to make available, or any
slow-down, stoppage or interruption of, these defined services resulting from
any cause other than Landlord's gross negligence or intentional act or
omission (including, but not limited to, Landlord's compliance with (i) any
published requirements or (ii) any requirements now or hereafter established
by any governmental agency, board or bureau having jurisdiction over the
operation and maintenance of the Building) shall not render Landlord liable
in any respect for damages to either person, property or business nor be
construed as an eviction of Tenant or entitle Tenant to an abatement of rent,
nor relieve Xxxxxx from fulfillment of any covenant or agreement hereof.
Should any equipment or machinery furnished by Landlord break down or for any
cause cease to function properly, Landlord shall use reasonable diligence to
repair same promptly, but Tenant
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shall have no claim for abatement of Rent or damages on account of any
interruptions in service occasioned thereby or resulting therefrom. If any
such stoppage or interruption prevents Tenant from occupying the Premises for
the purposes specified in this lease for a period of five (5) consecutive
days, then the Basic Rental shall be abated for the period beginning on the
sixth (6th) day on which Tenant was prevented from so occupying the Premises
until that day on which Landlord advises Tenant that Tenant may resume
occupancy of the Premises. If such stoppage or interruption prevents Tenant
from occupying the Premises for the purposes specified in this lease for a
period of twenty-one (21) or more consecutive days, then Tenant may terminate
this lease if Tenant gives such notice of termination to Landlord within
thirty (30) days after the day Tenant was prevented from so occupying the
Premises because of such interruption or stoppage.
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d. Notwithstanding any expiration or termination of this
lease prior to the expiration of the stated Lease Term, Tenant's obligations
to pay any and all Additional Rental pursuant to this SECTION 4 or SECTION 5
hereof shall continue and shall cover all periods up to the expiration of the
stated Lease Term. Tenant's obligation to pay any and all Additional Rental
or other sums owing by Tenant to Landlord under this lease shall survive any
expiration or termination of this lease.
e. Landlord shall maintain casualty insurance on the Building at
all times during the Lease Term for the full replacement cost value of the
Building. Such insurance shall be written by insurance companies rated "A" or
better by A.M. Best Company, Inc. The deductible on such insurance shall not
exceed $50,000.00.
f. Landlord shall be required at all times to maintain proper
site drainage for the land on which the Building is located in order to
prevent material water accumulation on any portion of such land. Upon
development of the adjacent sites, Landlord will be required to properly
engineer the site drainage for these sites so that such development does not
adversely effect drainage of the land on which the Building is located.
5. TENANT'S ADDITIONAL RENTAL OBLIGATION
a. Beginning on January 1, 2000 and continuing on January 1,
of each calendar year thereafter, Tenant shall pay to Landlord each calendar
year Additional Rental (herein so called) equal to (i) Tenant's
Proportionate Share of the increases in the Actual Operating Expenses
(defined below) for the Building for the prior calendar year, minus (ii) the
Base Year Expenses multiplied by Tenant's Proportionate Share. Additional
Rental shall be prorated on a daily basis for each partial calendar year in
the Lease Term. Tenant's Proportionate Share shall be the ratio which the
Rentable Area in the Premises (adjusted for office expansions) bears to the
Rentable Area in the Building. In no event shall Tenant be entitled to any
refund, credit or payment if Xxxxxx's Proportionate Share of the Actual
Operating Expenses for the Building for any calendar year is less than the
Base Year Expenses multiplied by the number of square feet of Rentable Area
in the Premises.
b. Actual Operating Expenses shall include all expenses,
costs and disbursements of every kind and nature incurred or paid by Landlord
in connection with the ownership and/or the operation, maintenance, repair
and security of the Building, and/or Landlord's interest therein, including
(without limitation) such expenses as utility costs, wages (for employees
directly related to the Building), landscaping, maintenance and repair costs,
costs of independent contractors, fees (other than legal fees directly
related to leasing activities of Landlord), insurance premiums, real estate
taxes and any and all other governmental or quasi-governmental taxes or
assessments of every kind and character (based on the Building being fully
assessed as a completed building), management fees and owner's association
assessments, (if any). Actual Operating Expenses shall not include the
capitalized cost of permanent improvements (other than those installed to
reduce operating costs or as may be required by law); interest, amortization
or other payments on loans to Landlord (other than that incurred to finance
items which are included in Actual Operating Expenses); all costs reimbursed
to Landlord out of insurance proceeds or from tenants or other sources not
affiliated
12
with Landlord; and depreciation of the Building.
c. If the Building is not fully occupied or fully assessed
as a completed Building for tax purposes during any full or fractional year
of the Lease Term (including the year 1999), the actual Operating Expenses
shall be adjusted for such year, for purposes of calculating Tenant's
Proportionate Share of Operating Expenses for such calendar year, to an
amount which Landlord estimates would have been incurred in Landlord's
reasonable judgment had the Building been fully occupied and fully assessed
as a completed Building for tax purposes during such calendar year.
d. Landlord shall have the right to estimate Additional
Rental to accrue hereunder and Tenant shall pay to Landlord the amount of
such estimate monthly with Xxxxxx's Basic Rental payments. If Landlord
estimates Additional Rental in advance, then by each April 1 during the Lease
Term or as soon thereafter as practical, Landlord shall furnish to Tenant a
statement of Landlord's Actual Operating Expenses for the previous calendar
year. If for any calendar year the Additional Rental due from Tenant is less
than the aggregate amount of the estimated payments previously paid by Tenant
with respect to such Additional Rental, then, so long as Tenant is not in
default hereunder, Landlord shall refund to Tenant any such overpayment (or,
at Landlord's option, apply such amount against Rentals due or to become due
hereunder). If for any calendar year the Additional Rental due from Tenant
is greater than the aggregate amount of the estimated payments previously
paid by Tenant with respect to such Additional Rental, Tenant shall pay the
amount of such difference to Landlord within ten (l0) days after demand
therefor by Landlord.
6. CONSTRUCTION OF FINISH WORK IN PREMISES
The construction of improvements in the Premises shall be governed
by EXHIBIT C hereto. If Landlord is delayed in achieving Substantial
Completion (as hereinafter defined) by the Completion Date because of
Landlord's delays and not delays referred to in paragraph 4 of EXHIBIT C to
this lease, the Commencement Date shall be postponed until Substantial
Completion has been achieved and such postponement shall constitute Tenant's
sole remedy and full settlement of all claims that Tenant may have against
Landlord based on the delay.
7. USE
Tenant shall use the Premises only for providing computer and/or
internet services to Tenant's customers. Tenant will not occupy or use the
Premises, or permit any portion of the Premises to be occupied or used for
any business or purpose other than the above-described purposes or for any
use or purpose which is unlawful in part or in whole or deemed to be
disreputable in any manner or extra hazardous on account of fire, nor permit
anything to be done which will in any way increase the rate of insurance on
the Building or its contents; and in the event that there shall be any
increase in rate of insurance on the Building or its contents created by
Xxxxxx's acts or conduct of business, then such acts of Tenant shall be
deemed to be an event of default hereunder and Tenant hereby agrees to pay to
Landlord the amount of such insurance rate increase on demand; provided,
however, that acceptance of such payment shall not constitute a waiver of any
of Landlord's other rights provided herein
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with respect to the occurrence of an event of default. Tenant will conduct
its business and control its agents, employees and invitees in such a manner
as not to create any nuisance, interfere with, annoy or disturb other tenants
or interfere with, annoy or disturb Landlord in the management of the
Building. Tenant will maintain the Premises in a clean, healthful and safe
condition and will comply with all laws, ordinances, orders, rules and
regulations (state, federal, municipal and other agencies or bodies having
any jurisdiction thereof) with reference to the use, condition or occupancy
of the Premises. However, Landlord at it's expense shall comply with all
laws, ordinances, rules and regulations (state, federal, municipal and other
agencies or bodies having any jurisdiction thereof) which govern the Premises
without regard to Tenant's specific use thereof. Tenant will not, without
the prior written consent of Landlord, paint, install lighting, decorations,
drapes, blinds or other window coverings, or install any signs, window or
door lettering or advertising media of any type on or about the Premises or
any part thereof.
8. TENANT'S REPAIRS AND ALTERATIONS
Tenant will not in any manner deface or injure the Building, and
will pay the cost of repairing any damage or injury done to the Building or
any part thereof by Tenant or Tenant's agents, employees or invitees. Tenant
shall throughout the Lease Term take good care of the Premises and keep them
free from waste and nuisance of any kind. Tenant agrees to keep the
Premises, including all fixtures installed by Tenant and any plate glass and
special store fronts, in good condition and make all necessary non-structural
repairs except those caused by fire, casualty or acts of God covered by
Xxxxxxxx's insurance. The performance by Tenant of its obligations to
maintain and make repairs shall only be conducted under the supervision and
direction of Landlord by contractors and subcontractors approved in writing
by Landlord, it being understood that Tenant shall procure and maintain and
shall cause such contractors and subcontractors engaged by or on behalf of
Tenant to procure and maintain insurance coverage against such risks, in such
amounts and with such companies as Landlord may require in connection with
any such maintenance and repair. If Tenant fails to make such repairs within
fifteen (15) days after the occurrence of the applicable damage or injury
Landlord may at its option make such repairs, and Tenant shall, upon demand
therefor, pay Landlord for the cost thereof. At the end or other termination
of this lease, Tenant shall deliver up the Premises 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 Premises. Tenant will not make or allow to be made any
alterations or physical additions in or upon the Premises without the prior
written consent of Landlord. All alterations, additions or improvements
(whether temporary or permanent in character) made in or upon the Premises,
either by Landlord or Tenant, shall be Landlord's property on termination of
this lease and shall remain on the Premises without compensation to Tenant.
All furniture, moveable trade fixtures and equipment installed by Tenant may
be removed by Tenant at the termination of this lease if Tenant so elects,
and shall be so removed if required by Landlord, or if not so removed shall,
at the option of Landlord, become the
14
property of Landlord. All such installations, removals and restoration by
Tenant shall be accomplished in a good workmanlike manner so as not to damage
the Premises or the primary structure or structural qualities of the Building
or the plumbing, electrical lines or other utilities and central systems of
the Building.
9. ASSIGNMENT AND SUBLETTING
a. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld (i) assign or in
any manner transfer this lease or any estate or interest therein, or (ii)
permit any assignment of this lease or any estate or interest therein by
operation of law, or (iii) sublet the Premises or any part thereof, or (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, its agents and employees; and any such acts without Landlord's prior
written consent shall be void and of no effect. In granting or denying its
consent to a proposed assignment or subletting, Landlord may consider the
financial condition, reputation, type of business and other relevant
characteristics of the proposed assignee or sublessee and Landlord shall not
be deemed to have unreasonably withheld its consent if such characteristics
are reasonably determined to be unsatisfactory to Landlord. Notwithstanding
the foregoing, Xxxxxxxx agrees that Tenant may assign all, but not less than
all, of Xxxxxx's interest under this lease to an Affiliate (as hereinafter
defined) of Tenant; provided, however, that Tenant shall not be relieved of
any liability hereunder by virtue of such assignment. As used in the
immediately preceding sentence, the term "Affiliate" shall mean a person or
entity directly or indirectly, through one or more intermediaries,
controlling or controlled by or 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. 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, Tenant and any
guarantor of Tenant's obligations under this lease 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. If
an assignment of this lease or a subletting of the Premises should occur, the
Landlord, may, at its option, collect directly from such assignee or
sublessee all rents becoming due to Tenant under such assignment or sublease
and apply such rent against any sums due to Landlord by Tenant hereunder, and
Xxxxxx hereby authorizes and directs any such assignee or sublessee to make
such payments of rent directly to Landlord upon receipt of notice 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
or any guarantor from the further performance of its obligations hereunder.
Receipt by Landlord of rent from any assignee, sublessee or occupant of the
Premises shall not be deemed a waiver of the covenant in this lease contained
against
15
assignment and subletting or a release of Tenant under this lease. 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 Tenant 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 satisfactory to
Landlord that the proposed subtenant or assignee is financially responsible
and will immediately occupy and thereafter use the Premises (or any sublet
portion thereof) for the remainder of the Lease Term (or for the entire term
of the sublease, if shorter). Landlord shall have the option (to be
exercised within thirty (30) days from submission of Tenant's written
request) to (i) approve such subletting or assignment (on such conditions as
Landlord deems appropriate), (ii) disapprove such subletting or assignment
(in which event this lease shall remain in full force and effect), or (iii)
cancel this lease (or the applicable portion thereof as to a partial
subletting) as of the commencement date stated in the above mentioned
subletting or assignment. If Landlord elects to cancel this lease as
provided above, then the term of this lease, and the tenancy and occupancy of
the Premises by Tenant thereunder, shall cease, terminate, expire, and come
to an end with respect to that portion of the Premises so assigned or sublet
as if the cancellation date were the original termination date of this lease,
Tenant shall pay to Landlord all costs or charges which are the
responsibility of Tenant hereunder with respect to that portion of the
Premises so assigned or sublet, and Tenant shall, at its own cost and
expense, discharge in full any outstanding commission obligation of Landlord
with respect to this lease, or any part hereof so canceled. Thereafter
Landlord may lease the Premises to the prospective subtenant or assignee
without liability to Tenant. If Landlord does not thus cancel this lease, the
terms and provisions of SECTION 9(A) hereof will apply.
c. If Landlord consents to any subletting or assignment by
Tenant as hereinabove provided, and subsequently any rents received by Tenant
under any such sublease are in excess of the rent payable by Tenant under
this lease, or any additional consideration is paid to Tenant by the assignee
under any such assignment, then such excess rents under any sublease or such
additional consideration for an assignment shall, upon receipt by Tenant, be
due and payable by Tenant to Landlord as Additional Rental hereunder, less
such reasonable commissions and other reasonable third-party costs incurred
by Xxxxxx and approved by Landlord in connection with such sublease or
assignment. Under no circumstances shall the rent to be paid by any such
sublessee or assignee be less than the Basic Rental and Additional Rental due
under this lease.
d. In the event a bankruptcy case, whether voluntary or
16
involuntary, is commenced by or against Tenant or any of its successors or
assigns under this lease, and if any person or entity claiming rights under
this lease in such bankruptcy case (hereinafter, the "Trustee") proposes to
assign this lease or sublease the Premises (or any portion thereof) to any
other person or entity, the Trustee shall, immediately upon receipt of any
offer to accept an assignment of this lease or a sublease of the Premises (or
any portion thereof), give Landlord written notice, and the Trustee shall not
make application to the Court for authority to enter into any such assignment
and/or sublease prior to giving 10 days written notice to Landlord. The
notice to Landlord shall set forth: (1) the name and address of the party to
whom the Trustee proposes to assign this lease or sublease the Premises; (2)
all of the terms and conditions of such party's offer; (3) the terms and
conditions upon which the Trustee intends to cure any existing defaults
hereunder and to compensate Landlord for damages; (4) evidence of such
party's financial ability to cure such defaults and to provide such
compensation; and (5) provide evidence of such party's ability to provide
adequate assurance of the future performance of Tenant's obligations under
this lease. At any time prior to the effective date of such proposed
assignment or sublease, the Landlord shall have the prior right and option to
be exercised by notice to the Trustee, to accept an assignment of this lease
or a sublease of the Premises by any other subtenant or assignee upon the
same terms and conditions or for the same or better consideration as the
offer made by the party to whom the Trustee proposes to assign this lease or
sublet the Premises, less any brokerage commissions payable out of the
consideration to be paid by the person for the assignment or sublet of this
lease. If the Trustee proposes that this lease be assigned or that the
Premises (or any portion thereof) be subleased to any person or entity for
more than the rent provided in this lease, any and all such excess rent or
other consideration payable or to be delivered in connection with such
proposed assignment or sublease, shall be paid or delivered to Landlord as
Landlord's exclusive property. Any and all such excess rent or other
additional consideration delivered to Tenant or the Trustee shall be held in
trust for the Landlord's benefit, and shall not constitute property of Tenant
or the bankruptcy estate.
Any person or entity to whom this lease is assigned or to whom the
Premises (or any portion thereof) are subleased, shall be deemed, without
further act or deed, to assume all of the obligations arising under this
lease and each of the conditions and provisions hereof on or after the date
of such assignment or sublease. Any such assignee or subtenant shall, upon
the request of Landlord, forthwith execute and deliver to Landlord such
instrument(s), in form and substance acceptable to Landlord, confirming such
undertaking. As used herein, the term "adequate assurance" shall include in
addition to the separate requirements of the Bankruptcy Code: (1) the prior
delivery to Landlord of a security deposit in an amount at least equal to
three times the monthly Basic Rental plus any additional amounts payable
pursuant to this Lease; (2) disclosure of the source of rent and other
charges to be paid in consideration for the assignment or sublease under this
lease; (3) delivery of an audited financial statement dated no more than six
months prior to the effective date of such proposed assignment or sublease,
of the party to whom the Trustee proposes that this lease be assigned or the
Premises be subleased, or of a guarantor of such party's obligations under
this
17
lease, disclosing a net worth for such party or guarantor at least equal to
the annual rental plus any additional amounts payable pursuant to this lease,
with such guaranty being in form and substance acceptable to Landlord; and
(4) the granting of a first priority security interest in favor of Landlord
in all furniture, fixtures, and other personal property to be used by such
party on the Premises. Notwithstanding the foregoing, nothing contained
herein shall be deemed to be a waiver or extension by Landlord of any other
requirements or rights under the Bankruptcy Code, the bankruptcy rules of
procedure, or other applicable laws, including, without limitation, any
specific provisions regarding shopping center leases. Nothing contained in
this section shall be deemed a waiver of the Landlord's other rights or
remedies under this lease in the event of any default by Tenant or the
Trustee, and Landlord's acceptance of any assignee or subtenant hereunder
shall not constitute a waiver of Landlord's right to exercise any remedy
hereunder for any default by Xxxxxx, or any assignee or subtenant. The
provisions of this section shall apply only in the event of a proceeding
under the Bankruptcy Code and shall not apply to any assignment or sublease
except pursuant to the applicable provisions of the Bankruptcy Code, or any
replacement statutes. The requirements set forth in this section for any
assignment or sublease in a proceeding under the Bankruptcy Code are intended
to define the minimal acceptable requirements for any assumption, assignment
or sublease in a bankruptcy case and shall not constitute a waiver of, or in
any way limit, the Landlord's right to petition any Court of competent
jurisdiction for additional relief and protection beyond that set forth
herein.
e. 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.
10. INDEMNITY
a. Landlord shall not be liable to Tenant for (i) any injury
to person (except to the extent caused by the gross negligence or willful
misconduct of Landlord, or its duly authorized agents or employees) or damage
to property (except to the extent caused by the gross negligence or willful
misconduct of Landlord, or its duly authorized agents or employees) due to
the Building or any part thereof becoming out of repair or by defect in or
failure of pipes or wiring, or by the backing up of drains, or by the
bursting or leaking of pipes, faucets and plumbing fixtures, or by gas,
water, steam, electricity or oil leaking, escaping or flowing into the
Premises, except to the extent caused by its failure to meet its maintenance
and repair obligations set forth in Section 4 of this Lease, or (ii) any
loss, damage, or injury that may be occasioned by or through the acts or
omissions of other tenants in the Building or of any other persons
whatsoever, or (iii) 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 beyond the reasonable control of Landlord. Tenant agrees that all
personal property upon the Premises shall be at the
18
risk of Tenant only, and that Landlord shall not be liable for any damage
thereto or theft thereof.
b. Tenant hereby indemnifies, defends and holds and saves
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 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 its
agents, servants, employees, contractors, or invitees or of any other person
entering upon the Premises under or with the express or implied invitation or
permission of Tenant or when any such injury or damage is the result of the
violation by Xxxxxx, or any of its agents, servants, employees, contractors,
or invitees of any law, ordinance or governmental order of any kind or of any
of the rules and regulations included in this lease (as such rules and
regulations may hereafter at any time and from time to time be amended or
supplemented), or when any such injury or damage may in any other way arise
from or out of the occupancy or use by Tenant, its agents, servants,
employees, contractors, or invitees 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
Xxxxxx's employees, agents, servants, contractors, or invitees. Such
indemnification of Landlord by Tenant shall be effective except to the extent
such damage to property or injury to person 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 commenced by or against Tenant with respect
to which Xxxxxx has indemnified Landlord hereunder or relating to this lease
or to the Premises, then Tenant shall and will pay all costs and expenses,
including reasonable attorneys' fees and court costs, incurred by or imposed
upon Landlord by virtue of any such litigation; and the amount of all such
costs and expenses, including attorneys' fees and court costs, shall be
Additional Rental payable by Tenant to Landlord upon demand. However, under
no circumstances shall Tenant be obligated to indemnify Landlord for damages,
losses, costs, expenses (including, without limitation, reasonable attorneys'
fees), liabilities and judgments suffered by, recovered from or asserted
against Landlord caused by Landlord's gross negligence or intentional act or
omission. Landlord warrants to protect, indemnify, and hold Tenant harmless
from and against any and all claims, damages, liabilities, or expenses
arising solely out of or from (i) any breach or default in the performance of
any obligation of Landlord under this lease and (ii) any
19
gross negligence of Landlord, it's agents, employees or contractors.
11. SUBORDINATION
This lease and all rights of Tenant hereunder are subject and
subordinate to any deeds of trust, mortgages or other instruments of security
that now or hereafter cover all or any part of the Building, the Land or any
interest of Landlord therein, and to any and all advances made on the
security thereof, and to any and all increases, renewals, modifications,
consolidations, replacements and extensions of any of such deeds of trust,
mortgages or instruments of security. This provision is hereby declared by
Landlord and Tenant to be self-operative and no further instrument shall be
required to effect such subordination of this lease. 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. This lease and all rights of Tenant hereunder are further
subject and subordinate to (i) all ground or primary leases in existence at
the date hereof and to any and all supplements, modifications and extensions
thereof heretofore or hereafter made, (ii) all applicable ordinances, laws,
and regulations relating to easements, franchises and other interests or
rights upon, across or appurtenant to the Building or the Land, (iii) all
utility easements and agreements, and (iv) all restrictive covenants
applicable to the Land. Notwithstanding the generality of the foregoing
provisions of this SECTION 11. Tenant agrees that the holders of any such
mortgages, deeds of trust or other security instruments shall have the right
at any time to subordinate any such deeds of trust, mortgages or other
instruments of security to this lease on such terms and subject to such
conditions as such holders may deem appropriate in their discretion. Tenant
further covenants and agrees at any time before or after the institution of
any proceedings for the foreclosure of any such deeds of trust, mortgages or
other instruments of security, or sale of the Building and/or Land, or any
interest therein, pursuant to any such deeds of trust, mortgages or other
instruments of security, 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. Tenant
shall upon demand at any time or times, before or after any such foreclosure
sale or trustee's sale, execute, acknowledge and deliver to the holder of any
deed of trust, mortgage or other instrument of security which covers all or
any portion of the Building or the Land any and all instruments and
certificates that in the judgment of such holder may be necessary or proper
to confirm or evidence such attornment or agreement to attorn.
12. RULES AND REGULATIONS
Tenant and Tenant's agents, employees and invitees will comply
fully with all requirements of the rules and regulations of the Building and
related facilities which are attached hereto as EXHIBIT B, and made a part
hereof as though fully set out herein. Landlord shall at all times have the
right to modify or amend such rules and regulations
20
or to promulgate other rules and regulations in such manner as Landlord may
deem advisable for the safety, care, or cleanliness of the Building and
related facilities or the Premises, and for the preservation of good order
therein, all of which modifications, amendments and supplements shall be
carried out and observed by Xxxxxx. Tenant shall further be responsible for
the compliance with such rules and regulations, as so amended, modified or
supplemented, by the employees, servants, agents, visitors and invitees of
Tenant.
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13. INSPECTION
Landlord or its officers, agents, and representatives shall have
the right to enter into and upon any and all parts of Premises at all
reasonable hours (or, in any emergency, at any hour and without the necessity
of any prior notice) to (i) inspect same or clean or make repairs or
alterations or additions as Landlord may deem necessary (but without any
obligation to do so, except as expressly provided for herein) (however, if
any such cleaning, repairs or alterations would unreasonably disrupt Tenant's
business within the Premises, Landlord shall first orally notify Tenant prior
to performing such work within the Premises) or (ii) show the Premises to
prospective tenants, purchasers or lenders (after giving Tenant prior oral
notice); 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.
14. CONDEMNATION
If all or any portion of the Building or the Premises should be
taken for any public or quasi-public use under any governmental law,
ordinance or regulation or by right of eminent domain or should be sold to
the condemning authority in lieu of condemnation, Landlord (whether or not
the Premises are affected thereby) may terminate this lease by giving written
notice thereof to Tenant within sixty (60) days after the date of such taking
or sale, in which event this lease shall terminate as of the date when
physical possession of such portion of the Building or Premises is taken by
the condemning authority. If upon any such taking or sale this lease shall
not be thus terminated by Landlord, the Basic Rental and Additional Rental
payable hereunder shall be diminished by an amount representing that part of
such Basic Rental and Additional Rental as shall properly be allocable to the
portion of the Premises, if any, which was so taken or sold and Landlord
shall, at Landlord's sole expense, restore and reconstruct the remaining
portions of the Building and the Premises to substantially their former
condition, to the extent that the same, in Landlord's judgment, may be
commercially feasible, but such work shall not exceed the scope of the work
done by Landlord in originally constructing the Building and installing items
in the Premises to be constructed and installed by Landlord in the Premises
pursuant to the provisions of the work letter agreement attached as EXHIBIT C
(to the extent of the items provided within the Finish Allowance but not in
excess thereof); provided, however, Landlord shall not in any event be
required to spend for such work an amount in excess of the amount received by
Landlord as compensation or damages (over and above amounts paid to the
mortgagee of the property taken) for the part of the Building or the Premises
so taken. Landlord shall be entitled to receive all of the compensation
awarded upon a taking of any part or all of the Building or the Premises
including any award for the value of any unexpired Lease Term and for
leasehold improvements to the Premises. Nothing herein shall be construed,
however, to preclude Tenant from prosecuting any claim directly against the
condemning authority for loss of business, loss of good will, moving
expenses, damage to, and cost of removal of, trade fixtures, furniture and
other
22
personal property belonging to Tenant; provided, Tenant shall make no claim
which shall diminish or adversely affect any award claimed or received by
Landlord.
15. FIRE OR OTHER CASUALTY
In the event that the Building should be totally destroyed by fire,
tornado or other casualty or in the event the Premises or the Building should
be so damaged that rebuilding or repairs cannot reasonably be completed
within one hundred twenty (120) days after the date of such damage, Landlord
or Tenant may at its option terminate this lease, in which event the Basic
Rental and Additional Rental shall be abated during the unexpired portion of
this lease effective as of the date of such damage. In order for Tenant to
terminate the lease as provided in the immediately preceding sentence, Tenant
must give written notice to Landlord of such termination within twenty (20)
days after the occurrence of such damage. If Landlord has not received from
Tenant written notice terminating this lease within such twenty (20) day
period, Tenant shall be deemed to have waived Tenant's right to terminate
this Lease resulting from such damage under this SECTION 15. In the event
the Building or the Premises should be damaged by fire, tornado or other
casualty covered by Landlord's insurance, but only to such extent that
rebuilding or repairs can be completed within one hundred twenty (120) days
after the date of such damage, or if the damage should be more serious but
neither Landlord nor Tenant elects to terminate this lease; then in either
such event Landlord shall within ninety (90) days after the date of such
damage commence to rebuild or repair the Building and/or the Premises and
shall proceed with reasonable diligence to restore the Building and/or the
Premises to substantially the same condition in which it was immediately
prior to the happening of the casualty, except that (i) Landlord shall not be
required to rebuild, repair or replace any part of the furniture, equipment,
fixtures and other improvements which may have been placed by Tenant or other
tenants within the Building or the Premises, and (ii) Landlord shall not be
required to rebuild, repair or replace any portion of the Premises and the
improvements thereto which are in excess of the Original Condition (as
defined in EXHIBIT C hereto), except to the extent Tenant pays to Landlord
insurance proceeds or other sums which are required to complete such
rebuilding, repair or replacement. Further, in no event shall Landlord have
any obligation to restore the Premises to any condition in excess of the
improvements that can be replaced within the Finish Budget. Landlord shall
allow Tenant a fair diminution of rent during the time the Premises cannot,
in Landlord's reasonable opinion, be used or occupied as a result of the
applicable casualty. In the event any mortgagee under a deed or trust,
security agreement or mortgage on the Building should require that the
insurance proceeds be used to retire the secured debt, Landlord shall have no
obligation to rebuild and this lease shall terminate upon notice to Tenant.
Landlord shall have no liability to Tenant for inconvenience, loss of
business, or annoyance arising from any repair of any portion of the Premises
or the Building. If Landlord is required by this lease or by any mortgagee
or lessor of Landlord to repair or if Landlord undertakes to repair, Tenant
shall pay to Landlord that amount of Tenant's insurance proceeds which
insures such damage as a contribution towards such repair, and Landlord shall
use reasonable efforts to have such repairs made promptly and in a manner
which will not
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unnecessarily interfere with Xxxxxx's occupancy. Except as herein provided,
any insurance which may be carried by Landlord or Tenant against loss or
damage to the Building or to the Premises shall be for the sole benefit of
the party carrying such insurance and under its sole control.
16. 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 constitute
and be construed as a tenancy at will only, at a daily rental equal to 150%
of Basic Rental. The inclusion of the preceding sentence shall not be
construed as Landlord's consent for Tenant to hold over.
17. TAXES
Tenant shall be liable for all taxes levied or assessed against
personal property, furniture or fixtures placed by Tenant in the Premises.
If any such taxes for which Xxxxxx is liable are levied or assessed against
Landlord, or if the assessed value of Landlord's property is increased by
inclusion of personal property, furniture or fixtures placed by Tenant in the
Premises, and Landlord elects to pay the taxes based on such increase, Tenant
shall pay to Landlord upon demand that part of such taxes for which Tenant is
liable hereunder.
18. EVENTS OF DEFAULT
The following events shall be deemed to be events of default by
Tenant under this lease:
a. Tenant shall fail to pay when due any Rent or other sums
payable by Tenant hereunder (or under any other leases now or hereafter
executed by Tenant in connection with space in the Building) and such failure
continues for a period of ten (10) days after written notice to Tenant of
such failure; provided, however, that if two (2) such failures shall occur in
any period of twelve (12) consecutive calendar months, Tenant shall not be
entitled to any notice of, or period to cure any subsequent failure; and any
such subsequent failure shall immediately constitute an event of default
hereunder.
b. Tenant shall violate or fail to comply with the
provisions of SECTION 9(A) hereof.
c. 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 thirty (30) days after written notice to
Tenant of such failure; provided, however, that in the event such failure
cannot reasonably be corrected within such thirty (30) day period but
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Tenant commences to cure such failure within such thirty (30) day period and
diligently pursues such correction to completion, an event of default shall
not be deemed to have occurred.
d. Tenant shall desert or vacate any portion of the Premises
and commits an event of default under SECTION 18A, above.
e. Tenant or any guarantor of Tenant's obligations under
this lease ("Guarantor") 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 or any Guarantor shall have entered against it an order for relief in
any proceedings filed against Tenant or any Guarantor under any section or
chapter of the Bankruptcy Code; or a petition proposing the entry of an order
for relief as against Tenant or any Guarantor 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.
f. Tenant or any Guarantor 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.
g. A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant or any Guarantor, or of the
Premises, or any of Tenant's property located thereon in any proceeding
brought by Tenant or any Guarantor, or any such receiver or trustee shall be
appointed in any proceeding brought against Tenant or any Guarantor and shall
not be discharged within ninety (90) days after such appointment, or Tenant
or such Guarantor shall consent to or acquiesce in such appointment.
19. REMEDIES
Upon the occurrence of any event of default specified in this
lease, in addition to any other remedies available at law or in equity,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever:
a. Terminate this lease in which event Xxxxxx shall
immediately surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, and in compliance with applicable law,
enter upon and take possession and expel or remove Tenant and any other
person who may be occupying said Premises or any part thereof, by force if
necessary, without being liable for prosecution or any claim for damages
therefor; and Xxxxxx agrees to pay to Landlord on demand the amount of all
loss and damage which Landlord may suffer by reason of
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such termination, including without limitation, damages in an amount equal to
the total of (1) the costs of recovering the Premises and all other expenses
incurred by Landlord in connection with Tenant's default; (2) the unpaid Rent
earned as of the date of termination, plus interest thereon at the rate which
is the lesser of eighteen percent (18%) per annum or the highest lawful rate;
(3) the positive excess of total Rent which Landlord would have received
under this lease for the remainder of the Lease Term, but discounted to the
then present value at a rate of eight percent (8%) per annum, over the fair
market rental value on a net basis of the balance of the Lease Term as of the
time of such default discounted to the then present value at a rate of eight
percent (8%) per annum; and (4) all other sums of money and damages owing by
Tenant to Landlord.
b. In compliance with applicable law, 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, by force if necessary, without being liable for prosecution or
any claim for damages therefor, and if Landlord so elects, relet the Premises
on such terms as Landlord shall deem advisable and receive the rent therefor;
and Tenant agrees to pay to Landlord on demand any deficiency that may arise
by reason of such reletting for the remainder of the Lease Term, it being
understood and agreed, however, that in no event shall Tenant be entitled to
any rents received from such tenant or tenants which are in excess of the
Rent payable by Tenant hereunder.
c. In compliance with applicable law, enter upon the
Premises by force if necessary, 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 elect to terminate this lease for a previous default. Pursuit of
any of the foregoing remedies shall not preclude pursuit of any of the other
remedies herein provided or any other remedies provided by law or in equity,
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
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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, and any brokerage fee incurred in connection with any
such reletting. Should Landlord at any time terminate this lease for any
default, in addition to any other remedy Landlord may have, Landlord may
recover from Tenant all damages Landlord may incur by reason of such default,
including the cost of recovering the Premises and the loss of rental for the
remainder of the Lease Term.
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20. SURRENDER OF PREMISES
No act or thing done by Landlord or its agents during the term
hereby granted shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept a surrender of the Premises shall be valid unless
the same be made in writing and signed by Landlord.
21. ATTORNEYS' FEES
In case it should be necessary or proper for Landlord to bring any
action under this lease or to consult or place said lease, or any amount
payable by Tenant hereunder, with an attorney concerning or for the
enforcement of any of Landlord's rights hereunder, then Xxxxxx agrees in each
and any such case to reimburse Landlord on demand for Landlord's reasonable
attorneys' fees.
22. LANDLORD'S LIEN
Landlord shall have, at all times, the statutory lien to secure
payment of all Rent and other sums of money becoming due hereunder from
Tenant, and to secure payment of any damages or loss which Landlord may
suffer by reason of the breach by Tenant of any covenant, agreement or
condition contained herein, upon all goods, wares, equipment, fixtures,
furniture, improvements and other personal property of Tenant presently or
which may hereafter be situated on the Premises, and all proceeds therefrom.
Landlord may, in Xxxxxxxx's sole discretion, and on a case by case basis,
subordinate such lien to the security interests granted by Xxxxxx in
connection with Xxxxxx's purchase of equipment to be located on the Premises.
23. MECHANICS' LIENS
Tenant will not permit any mechanic's or materialman's lien or
liens to be placed upon the Premises or the Building or improvements thereon
during the Lease Term caused by or resulting from any work performed,
materials furnished or obligation incurred by or at the request of Tenant,
and in the case of the filing of any such lien, Tenant will promptly pay same
and cause such lien to be discharged or obtain a bond in an amount, and
issued by a surety, acceptable to Landlord to bond any such lien. If default
in payment 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 so much Additional Rental hereunder due from
Tenant to Landlord and shall be repaid to Landlord immediately on rendition
of a bill therefor.
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24. NO SUBROGATION; LIABILITY INSURANCE
a. Each party hereto hereby waives any and every claim which
arises or may arise in its favor and against the other party hereto, or
anyone claiming through or under them, by way of subrogation or otherwise,
during the Lease Term or any extension or renewal hereof 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 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 coverages by reason of such waivers.
b. Tenant shall procure and maintain throughout the Lease
Term the following insurance: (1) All Risk insurance (excluding flood,
earthquake and collapse) insuring all leasehold improvements in the Premises,
Tenant's interest in the Premises and all property located in the Premises,
including furniture, equipment, fittings, installations, fixtures, supplies
and any other personal property, leasehold improvements and alterations, in
an amount equal to the full replacement value, it being understood that no
lack or inadequacy of insurance by Tenant shall in any event make Landlord
subject to any claim by virtue of any theft of or loss or damage to any
uninsured or inadequately insured property; (2) Business Interruption
insurance in an amount that will reimburse the Tenant for direct or indirect
loss of earnings attributable to all perils insured against under clause (l)
above or attributable to the prevention of access to the Premises by civil
authority; and sufficient to reimburse the Tenant for Rent in the event of a
casualty to, or temporary taking of, the Building or the Premises; (3)
Comprehensive general public liability insurance including personal injury,
bodily injury, broad form property damage, operations hazard, owner's
protective coverage, contractual liability, with a cross liability clause and
a severability of interests clause to cover Tenant's indemnities set forth
herein, and products and completed operations liability, in limits not less
than $5,000,000.00 inclusive per occurrence or such higher limits as Landlord
may require from time to time during the Term; (4) Worker's Compensation and
Employer's Liability insurance, with a waiver of subrogation endorsement, in
form and amount as required by applicable law; (5) Builder's Risk insurance
on an "All Risk" basis (including flood, earthquake and collapse) on a
completed value (non-reporting) form for full replacement value covering all
work incorporated in the Building and all materials and equipment in or about
the Premises
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during the course of construction of work performed by Tenant pursuant to
EXHIBIT C or any alterations by Tenant until completion thereof; (6) Tenant's
"All Risk" Legal Liability insurance for the replacement cost value of the
Premises; and (7) Any other form or forms of insurance or any changes or
endorsement to the insurance required herein as Landlord, or any mortgagee or
lessor of Landlord may require, from time to time, in form or in amount.
Tenant shall furnish full and complete copies of such insurance
policies and such other evidence satisfactory to Landlord of the maintenance
of all insurance coverage required hereunder, and Tenant shall obtain and
deliver to Landlord a written obligation on the part of each insurance
company to notify Landlord at least thirty (30) days prior to cancellation or
material change of any such insurance. All such insurance shall be written
by insurance companies rated "A" or better by A.M. Best Company Inc. and
otherwise acceptable to Landlord.
25. TENANT'S NEED FOR LARGER SPACE; RIGHT OF FIRST REFUSAL.
If Tenant determines that Tenant needs more space for its business than
is contained within the Premises, Tenant may so notify Landlord and request
that Landlord attempt to find additional space within the Building to which
Tenant may relocate. Landlord agrees to use its best efforts to locate such
other space within the Building or in other buildings owned by Landlord
within the Mercantile Business Park which might be suitable for Tenant's
purposes. Landlord shall have no obligation to remove any existing tenant
from its space in order to make such space available for Tenant or to
construct any new buildings within the Mercantile Business Park for Tenant.
Also, Xxxxxxxx's failure to find such other space for Tenant shall not
constitute a default by Landlord under this lease nor shall Tenant be
entitled to exercise any rights to terminate this lease or pursue any other
remedies against Landlord.
Landlord hereby grants to Tenant a right of first refusal ("Right of
First Refusal") to lease any space on the first floor of the Building (other
than the Premises) which becomes available during the Lease Term and any
renewal of the Lease Term which properly goes into effect. Xxxxxxxx agrees
to give written notice ("Landlord's Notice") to Tenant if any such space
becomes available and Tenant shall have a period of three (3) days after
receipt of Landlord's Notice in which to notify Landlord that Tenant desires
to lease such additional space. If Landlord has not received from Tenant
Tenant's notice that Tenant desires to lease such space covered by the
Landlord's Notice within three (3) days after Xxxxxx's receipt of Landlord's
Notice, Tenant shall be deemed to have waived Tenant's Right of First Refusal
for the space covered by the Landlord's Notice until such time in the future,
if ever, that such space again becomes available. If Tenant notifies Landlord
within such three (3) day period that Tenant desires to lease such space
covered by the Landlord's Notice, Landlord and Tenant shall promptly enter
into an appropriate amendment to this lease adding such space to the Premises
and otherwise amending this lease as necessary. Landlord shall not be
30
obligated to give the Landlord's Notice to Tenant if Tenant is in default
under this lease at the time any such space becomes available.
26. CHANGE OF BUILDING NAME
Landlord reserves the right at any time to change the name by which
the Building is designated.
27. ESTOPPEL CERTIFICATES
Tenant agrees to furnish from time to time when requested by
Landlord, the holder of any deed of trust or mortgage or the lessor under any
ground lease covering all or any part of the Building or the improvements
therein or the Premises or any interest of Landlord therein, a certificate
signed by Tenant confirming and containing such factual certifications and
representations deemed appropriate by Landlord, the holder of any deed of
trust or mortgage or the lessor under any ground lease covering all or any
part of the Building or the improvements therein or the Premises or any
interest of Landlord therein, and Tenant shall, within ten (10) days
following receipt of said proposed certificate from Landlord, return a fully
executed copy of said certificate to Landlord. In the event Tenant shall
fail to return a fully executed copy of such certificate to Landlord within
the foregoing ten-day period, then 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 Tarrant 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 ten (10) 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 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 ten (l0) days prior written notice
31
delivered to the other party hereto in accordance herewith.
29. FORCE MAJEURE
Whenever a period of time is herein prescribed for action to be
taken by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation for any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials,
war, governmental laws, regulations or restrictions, delays caused by Tenant
or Tenant's agents, servants, employees or contractors, or any other causes
of any kind whatsoever which are beyond the reasonable control of Landlord.
30. SEVERABILITY
If any clause or provision of this lease is illegal, invalid or
unenforceable under present or future laws effective during the Lease Term,
then and in that event, it is the intention of the parties hereto that the
remainder of this lease shall not be affected thereby and it is also the
intention of the parties to this lease that in lieu of each clause or
provision of this lease that is illegal, invalid or unenforceable, there be
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.
31. 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 the parties hereto, and upon their respective
successors in interest, legal representatives and permitted assigns, except
as otherwise herein expressly provided.
32. QUIET ENJOYMENT
Provided Tenant has performed all of the terms and conditions of
this lease, including the payment of Rent, to be performed by Tenant, 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.
33. GENDER
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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.
34. JOINT AND SEVERAL LIABILITY
If there be more than one Tenant, the obligations hereunder imposed
upon Tenant shall be joint and several. If there be a guarantor of Tenant's
obligations hereunder, the obligations hereunder imposed upon Tenant shall be
the joint and several obligations of Tenant and such guarantor and Landlord
need not first proceed against Tenant before proceeding against such
guarantor nor shall any such guarantor be released from its guaranty for any
reason whatsoever, including without limitation, in case of any amendments
hereto, waivers hereof or failure to give such guarantor any notices
hereunder.
35. 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 Building and the Land 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 Building and the Land, neither Landlord nor its officers,
directors, shareholders or other principals shall have any personal liability
for the performance of any of Landlord's covenants, agreements or
undertakings hereunder.
36. CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord shall have the following rights, exercisable without
notice and without liability to Tenant for damage or injury to property,
persons or business and without constituting an eviction, constructive or
actual, or a disturbance of Tenant's use or possession of the Premises or
giving rise to any claim for setoff or abatement of rent:
a. To decorate and to make repairs, alterations, additions,
changes or improvements, whether structural or otherwise, in and about the
Building, or any part thereof, and for such purposes to enter upon the
Premises and, during the continuance of any such work, to temporarily close
doors, entryways, public space and corridors in the Building, to interrupt or
temporarily suspend Building services and facilities and to change the
arrangement and location of entrances or passageways, doors and doorways,
corridors, elevators, stairs, toilets, or other public parts of the Building,
all without abatement of rent or affecting any of Tenant's obligations
hereunder, so long as the Premises are reasonably accessible.
b. To have and retain a paramount title to the Premises free
33
and clear of any act of Tenant purporting to burden or encumber them.
c. To grant to anyone the exclusive right to conduct any
business or render any service in or to the Building, provided such exclusive
right shall not operate to exclude Tenant from the use expressly permitted
herein.
d. To prohibit the placing of vending or dispensing machines
of any kind in or about the Premises without the prior written permission of
Landlord.
e. To have access for Landlord and other tenants of the
Building to any mail chutes located on the Premises according to the rules of
the United States Postal Service.
f. To take all such reasonable measures as Landlord may deem
advisable for the security of the Building and its occupants, including
without limitation, the search of all persons entering or leaving the
Building, the evacuation of the Building for cause, suspected cause, or for
drill purposes, the temporary denial of access to the Building, and the
closing of the Building after normal business hours and on Saturdays, Sundays
and holidays, subject, however, to Tenant's right to admittance when the
Building is closed after normal business hours under such reasonable
regulations as Landlord may prescribe from time to time which may include by
way of example but not of limitation, that persons entering or leaving the
Building whether or not during normal business hours, identify themselves to
a security officer by registration or otherwise and that such persons
establish their right to enter or leave the building.
37. NOTICE TO LENDER
If the Premises or the Building or any part thereof are at any time
subject to a first mortgage or a first deed of trust or other similar
instrument and this lease or all or any portion of the Rent are assigned to a
mortgagee, trustee or beneficiary, as applicable, and the Tenant is given
written notice thereof, including the address of such assignee, then the
Tenant shall not terminate this lease or xxxxx rentals for any default on the
part of the Landlord without first giving written notice by certified or
registered mail, return receipt requested, to such assignee, specifying the
default in reasonable detail, and affording such assignee thirty (30) days
within which to make performance, at its election, for and on behalf of the
Landlord.
38. 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.
39. PLACE OF PERFORMANCE
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ALL OBLIGATIONS OF LANDLORD AND TENANT UNDER THE TERMS OF THIS
LEASE SHALL BE PAYABLE AND PERFORMABLE IN TARRANT COUNTY, TEXAS.
40. BROKERAGE COMMISSION
Xxxxxxxx and Tenant warrant to each other that, except for any
brokerage commission payable by Landlord to Stoneleigh, Xxxx, Xxxxx and
XxXxxxxx by separate written commission agreement, such party has had no
dealings with any broker or agent in connection with the negotiation or
execution of this lease and each party agrees to indemnify the other and hold
the other harmless from and against any and all claims, loss, cost or expense
(including attorneys' fees and expenses) or other commissions or other
compensation and charges claimed by any broker or agent.
41. GOVERNING LAW
THE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE INTERPRETATION,
VALIDITY, PERFORMANCE AND ENFORCEMENT OF THIS LEASE.
42. RECORDING
Xxxxxx agrees that this lease shall not be filed of record in the
Office of the County Clerk of the county in which the Premises or any portion
thereof is situated without Landlord's prior written consent. In lieu of
recording this lease, Landlord and Xxxxxx shall execute and record a
Memorandum of Lease substantially in the form attached hereto as EXHIBIT E,
and made a part hereof.
43. ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than
any payment of Rent or Additional Rental herein stipulated shall be deemed to
be other than on account of the earliest stipulated rent or Additional Rental
then due and payable, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such rent or pursue any other
remedy provided in this lease, at law or in equity.
44. TIME OF ESSENCE
Time is of the essence of this lease.
45. AUTHORITY TO EXECUTE
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Landlord and Tenant represent and warrant to each other that each
is fully authorized to enter into this lease without the joinder of any other
person or entity, and the person executing this lease on behalf of such party
has full authority to do so and that any and all corporate, partnership,
joint venture or limited liability company action required has been taken.
46. DISCLAIMER
EXCEPT FOR LANDLORD'S OBLIGATIONS SPECIFIED IN THIS LEASE, LANDLORD
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE OF, AS TO OR CONCERNING (I) THE NATURE
AND CONDITION OF THE PREMISES OR THE BUILDING, INCLUDING, BUT NOT BY WAY OF
LIMITATION, THE WATER, SOIL, THE PRESENCE OR NONPRESENCE OF HAZARDOUS OR
TOXIC SUBSTANCES IN, ON, ABOUT OR EMANATING FROM THE PREMISES OR THE
BUILDING, GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PREMISES OR THE
BUILDING FOR ANY AND ALL ACTIVITIES AND USES WHICH TENANT SHALL BE PERMITTED
TO CONDUCT THEREON UNDER THIS LEASE, (II) THE MANNER, CONSTRUCTION, CONDITION
AND STATE OF REPAIR OR LACK OF REPAIR OF ANY OF THE PREMISES OR THE BUILDING,
AND (III) THE COMPLIANCE OF THE PREMISES OR THE BUILDING OR ITS OPERATIONS
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR OTHER
BODY. SUBJECT TO LANDLORD'S OBLIGATIONS SPECIFIED IN THIS LEASE, THE LEASE
OF THE PREMISES AS PROVIDED FOR IN THIS LEASE IS MADE ON AN "AS IS" BASIS,
AND TENANT EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE AGREEMENTS OF
THE LANDLORD HEREIN, LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO,
ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PREMISES OR THE BUILDING. THE PROVISIONS OF THIS
SECTION 46 SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS LEASE.
47. TENANT'S OBLIGATIONS REGARDING HAZARDOUS SUBSTANCES
(a) DEFINITION OF HAZARDOUS SUBSTANCES. As used in this lease, the
terms "Hazardous Substance" or "Hazardous Substances" mean any substance,
material or waste (regardless whether liquid, solid, gaseous, or combinations
thereof, and regardless of the amount thereof) which is, or may be, or may
become defined as, hazardous, toxic or in any way (and to any extent) harmful to
human health or safety, to property, to wildlife or to air, soil, water or the
environment in general. Such terms include, but are not limited to, any
substance, material, or waste which is now or may be in the future listed in the
United States Department of Transportation Hazardous Materials Table (49 CFR
172.101) or by the Environmental Protection Agency as a hazardous substance (40
CFR Part 302), and amendments thereto, or any substance,
36
material or waste which is now regulated or may become regulated in the
future under any local, state or federal law, ordinance, regulation or order;
and such terms shall also include, without limitation, any material, waste or
substance which is (A) petroleum or a by-product of petroleum, including
fuels, (B) asbestos, (C) polychlorinated biphenyl, (D) now or in the future
designated as a "hazardous substance" pursuant to Section 311 of the Clean
Water Act, 33 U.S.C. 1251, ET SEQ. (33 U.S.C. 1321) or listed pursuant to
Section 307 of the Clean Water Act (33 U.S.C. 1317), (E) now or in the future
defined or listed as "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C. 6901, ET SEQ. (42 U.S.C.
6903), (F) now or in the future defined as a "hazardous substance" pursuant
to Section 101 of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. 9601, ET SEQ. (42 U.S.C. 9601), (G) now or in the
future designated or defined as a "solid waste," a "hazardous waste" or a
"hazardous substance" under the Texas Revised Civil Statutes Annotated
Article 4477-7, as amended by S.B. 1502, 71st Legislature of the State of
Texas and as partially codified as Chap. 361, Texas Health and Safety Code,
(H) now or in the future designated or defined as an "imminently hazardous
chemical substance or chemical substance mixture" under the Toxic Substances
Control Act (15 U.S.C. 2601 ET SEQ.), or (I) now or in the future regulated,
designated or defined as actually or potentially hazardous, toxic or harmful
under any other or similar environmental protection law, ordinance,
regulation or order, or amendment or codification thereof.
(b) COMPLIANCE WITH LAWS. Tenant shall at all times and in all
respects comply with all current and future local, state, and federal laws,
ordinances, regulations, and orders (including, without limitation, those
described in Paragraph (a)) (collectively, "Hazardous Substances Laws"), and
with all permits and license requirements thereunder relating to industrial
and human safety or hygiene, to environmental protection, or to the use,
analysis, generation, manufacture, storage, release, disposal, transportation
or reporting of any Hazardous Substances.
(c) HAZARDOUS SUBSTANCES HANDLING, REMOVAL AND DISPOSAL. Tenant
shall at its own expense procure, maintain in effect, and comply with all
terms and conditions of any and all permits, licenses, and other approvals
required by any local, state or federal agency or political subdivision for
Tenant's use of the Premises, including, without limitation, all necessary
permits, licenses and approvals for any use, handling, removal or disposal of
Hazardous substances and any discharge of appropriately treated materials or
wastes into or through any sanitary sewer serving the Premises (which in any
event shall be permitted only if Tenant gives thirty (30) days prior written
notice of such proposed discharge to Landlord together with true copies of
each such regulatory permit, license and approval of the same, and only if
such discharge may be done without injury to any person or injury to or
contamination of any property including any property of a third party or the
Premises). Except as discharged into a sanitary sewer in strict accordance
and compliance with all applicable Hazardous Substances Laws and without
injury to any person or contamination of any property, including the
Premises, Tenant shall cause any and all Hazardous Substances located in, at
or upon the Premises, to be removed and transported solely by persons duly
37
licensed and permitted by all necessary regulatory authorities to remove and
transport the same, and such Hazardous Substances shall be transported only
to duly licensed and permitted facilities for final disposal of such
Hazardous Substances. Tenant shall in all respects handle, treat, deal with,
and manage any and all Hazardous Substances, in, on, under, or about the
Premises in total compliance with all applicable Hazardous Substance Laws and
prudent practices regarding management of such Hazardous Substances. Upon
expiration or earlier termination of the term of the lease, Tenant shall
cause all Hazardous Substances to be removed from the Premises (including,
but not limited to, any Hazardous Substances stored in any above ground or
underground storage tank, barrel, or drum) and to be transported for use,
storage, or disposal elsewhere strictly in accordance with the foregoing and
in strict compliance with all applicable Hazardous Substance Laws. Tenant's
obligation to remove all Hazardous Substances shall include, but is not
limited to, an obligation to remedy (in the manner and with the approvals as
provided in Paragraph (e)) all damages caused by Tenant, Xxxxxx's agents,
invitees, employees, contractors or representatives to the Premises in any
way connected with such Hazardous Substances or the removal thereof, and to
return the Premises to the Landlord in the same condition as existed at the
time of Xxxxxx's occupancy thereof.
(d) NOTICES CONCERNING HAZARDOUS SUBSTANCES. If at anytime Tenant
shall become aware, or shall have any cause to believe, that a substantial or
unusual spill, leak, discharge, release or threatened release of any
Hazardous Substance has occurred which is or may be in violation of any
Hazardous Substance Laws or of this lease or that any Hazardous Substance has
come to be located at, in, on or under the Premises in a manner which is or
may be in violation of Hazardous Substances Law or this lease, Tenant shall
immediately give oral notice thereof to Landlord followed within three (3)
days by detailed written notice. In addition, Tenant shall immediately
notify Landlord in the same manner of (A) any enforcement, cleanup, removal,
or other governmental or regulatory action, or private citizen action,
instituted or threatened against Tenant and/or the Premises pursuant to any
Hazardous Substances Laws, (B) any claim (regardless whether under any
Hazardous Substances Laws or at common law) made or threatened by any person
against Tenant or the Premises or relating to damage, contribution, cost
recovery, compensation, loss, or injury resulting from or claimed to result
from any Hazardous Substances brought upon the Premises by Tenant and/or
Tenant's employees, invitees, contractors or invitees, and (C) any reports
made by any person (including Tenant), of which Tenant has knowledge, to any
local, state, or federal governmental agency or political subdivision arising
out of or in connection with any Hazardous Substances in or removed from the
Premises, including any third party complaints, notices, warnings, or
asserted violations in connection therewith. Tenant shall also supply to
Landlord as promptly as possible, and in any event within three (3) days
after Xxxxxx first receives or sends the same, copies of all claims, reports,
complaints, notices, warnings, or asserted violations relating in any way to
the Premises or Xxxxxx's use thereof. Regardless of any actual or suspected
violations of Hazardous Substances Laws or of any provisions of this lease
concerning Hazardous Substances, Tenant shall promptly deliver to Landlord
copies of all Tenant's
38
records pertaining to Hazardous Substances, including, without limitation,
permits, licenses, and reports and all hazardous waste manifests reflecting
the legal and proper removal, storage, transportation, and disposal of all
Hazardous Substances removed from the Premises.
(e) RESPONSES TO CLAIM CONCERNING HAZARDOUS SUBSTANCES. Tenant
shall not enter into any agreement, consent, decree, or compromise in respect
to any claims relating to any Hazardous Substances in, on or about the
Premises nor enter into any agreement, consent decree, or compromise in
respect to any claims relating to any Hazardous Substances in any way
connected with the Premises without first notifying Landlord of Tenant's
intention to do so and affording Landlord ample opportunity to appear,
intervene, or otherwise appropriately assert and protect Xxxxxxxx's interest
with respect thereto. In no event shall Tenant have any authority to bind or
commit Landlord or its property to any agreement, consent decree or
compromise. If the presence of any Hazardous Substances in, on, under or
about the Premises which results directly or indirectly in violation of any
Hazardous Substances Law or in any pollution or contamination of, or any harm
to, the Premises or if any federal, state or local agency or subdivision
requires any cleanup, remedial, removal or restoration work at the Premises
with respect to Hazardous Substances caused by Tenant or Tenant's agents,
invitees, employees, representatives or contractors, Tenant shall promptly
and at its sole cost and expense take all actions as are necessary to return
the Premises to the condition existing prior to the introduction of any such
Hazardous Substances caused by Tenant or Tenant's agents, invitees,
employees, representatives or contractors; PROVIDED THAT Xxxxxxxx's written
approval of such actions shall first be obtained and such approval shall not
be unreasonably withheld so long as such actions would not potentially have
any material adverse long-term or short-term consequences to the Premises.
This obligation of Tenant is continuing and shall survive the termination or
expiration of this lease and any transfer, assignment, assumption or
subletting of this lease and any transfer, assignment, assumption or
subletting of the lease to or by another person, and in no way limits
Tenant's liabilities or other obligations under this lease.
(f) INDEMNIFICATION OF LANDLORD. Tenant shall indemnify, defend
(by counsel reasonably acceptable to Landlord), protect, and hold harmless
Landlord, and Landlord's property, and each of Landlord's partners, joint
venturers, directors, officers, employees, agents, attorneys, successors, and
assigns from and against any and all claims, liabilities, penalties, fines,
judgments, liens, forfeitures, damages (including indirect or consequential
damages) and losses (including, without limitation, diminution in the value
of the property of a third party or of the Premises, and damages for the loss
or restriction on use of rentable or usable space or of any amenity of the
Premises), costs, and expenses (including attorneys' fees, engineering fees,
consultant fees, and expert fees) for or with respect to the death of or
injury to any person whomsoever (including attorneys' fees, engineering fees,
consultant fees, and expert fees) for or with respect to the death of or
injury to any person whomsoever (including third parties), or injury or
damage to or contamination of any property whatsoever (including soil and
39
ground water and property of third parties) arising from or caused in whole
or in part, directly or indirectly, by (1) the presence of any Hazardous
Substances in, on, under or about the Premises or any discharge, threatened
release, or releases of any Hazardous Substances at, in or from the Premises
caused by Tenant or Tenant's agents, invitees, employees, representatives, or
contractors, or Tenant's use, analysis, storage, transportation, disposal,
release, threatened release, discharge or generation of any Hazardous
Substances to, in, on, under, about or from the Premises, or (2) Tenant's
failure to comply with any Hazardous Substances Law, or (3) Tenant's failure
to comply with or Xxxxxx's breach of any of Tenant's covenants regarding
Hazardous Substances contained in this lease. Tenant's obligations hereunder
shall include, without limitation, and without regard to whether the same
were foreseeable or unforeseeable, any and all costs incurred in connection
with any investigation of site conditions, and any and all costs of any
required or necessary repair, cleanup, detoxification, or decontamination of
the Premises and the soil and ground water on or under same, and the
preparation and implementation of any closure, remedial action, or other
required plans in connection therewith. Tenant's obligations hereunder are
continuing and shall survive the expiration or earlier termination of the
term of the lease, and any transfer, assignment, assumption or subletting of
the lease to or by another person. For purposes of the indemnity provisions
hereof, any acts, omissions or conduct of Tenant, or by employees, agents,
assignees, contractors, or subcontractors of Tenant or others acting for, at
the request of, or on behalf of Tenant (regardless whether they are
authorized, unauthorized, negligent, intentional, willful or unlawful), shall
be strictly attributable to Tenant.
Landlord hereby warrants and represents that to the best of
Landlord's actual, current knowledge, no waste materials, no hazardous
materials, including asbestos, and no hazardous substances have been disposed
of or placed on the Premises except for minor spills incidental to normal
operations. Landlord further warrants and represents that to the best of
Landlord's actual, current knowledge, all underground tanks on the Premises
were properly registered with the appropriate governmental agency and that
such tanks are not leaking. Xxxxxxxx hereby agrees to indemnify, defend and
hold harmless Tenant from and against any and all liability, loss or expense
caused by a breach of Landlord's warranty and representation made by Landlord
in this paragraph. The provisions of this paragraph shall survive
termination or expiration of this lease.
(g) WITHHOLDING CONSENT TO PROPOSED TRANSFEREES. Without limiting
any other provision of this lease pertaining to Xxxxxx's assignment,
subletting or transfer of this lease or Tenant's interest therein, Tenant
acknowledges and agrees that it shall not be unreasonable for Landlord to
withhold its consent to any proposed assignment, subletting or transfer of
this lease or of Tenant's interest in this lease if the anticipated use of
the Premises by the proposed assignee, subtenant or transferee (collectively,
a "Transferee") involves the generation, storage, use, treatment or disposal
of any Hazardous Substances. No permitted assignment, transfer, assumption
or subletting of this lease shall operate to relieve or discharge Tenant of
or from any of
40
Tenant's covenants or obligations with respect to Hazardous Substances.
(h) ENVIRONMENTAL MONITORING, INSPECTION, ASSESSMENT AND TESTING.
Landlord shall have the right to inspect Tenant's records and the Premises
following 24 hours advance written notice to Tenant, any time, and at
different times, to determine Tenant's compliance with all Hazardous
Substances Laws and with Xxxxxx's covenants with respect to Hazardous
Substances. Such inspections may include, without limitation, an inspection
of all of Tenant's records, licenses and permits pertaining in any way to
Hazardous Substances; inspection and assessment of the Premises by a
professional engineer or consultant of Landlord's choosing; the gathering of
samples of substances, discharges, air, soil, and water; and drilling of any
holes in the Premises and conducting any other invasive test or sampling
which may be necessary to gather information or data. In the event any
violation of any Hazardous Substances Laws or any breach of any of Tenant's
covenants with respect to Hazardous Substances is disclosed or revealed by
any such inspection, Tenant shall pay all costs and expenses (including all
costs of inspection) to remedy the same to the standards required by all
applicable laws, rules and regulations and Landlord shall have the right to
terminate this lease upon thirty (30) days notice to Tenant.
(i) CONFLICTING PROVISIONS AND CUMULATIVE EFFECT. Nothing herein
limits any common law right or remedy of the Landlord or any common law duty
or obligation of the Tenant with respect to the subject matter hereof.
Nothing herein limits any right or remedy of the Landlord under any other
term or provision of the lease or any duty or obligation of the Tenant under
any other term or provision of the lease. However, in the event of any
conflict between the terms and provisions of this SECTION 47 and the other
terms and provisions of the lease, with respect to the manufacture,
generation, analysis, storage, handling, use, treatment, reporting, release,
removal, transportation or disposal of Hazardous Substances or with respect
to the rights, remedies, duties and obligations in connection therewith, such
conflict shall be resolved in favor of this SECTION 47, which shall control
such subject. The terms, covenants, obligations, provisions and agreements
contained in this SECTION 47 shall survive the termination or expiration of
this lease.
48. RIGHT TO CONTEST
Tenant will have the right to contest by appropriate proceedings
diligently conducted in good faith in the name of Tenant, or with the prior
written consent of Landlord, in the name of Landlord, or both, without cost
or expense to Landlord, the validity or application of any law, ordinance,
order, rule, or regulation or legal requirement of any nature affecting this
lease. Tenant may delay compliance with any such law, ordinance, order, rule,
regulation pending the outcome of any contest proceedings, even if a lien,
charge, or liability may be incurred by reason of such delay, so long as (a)
such contest or delay does not subject Landlord to civil or criminal
liability, (b) Tenant furnishes to Landlord security, reasonably satisfactory
to Landlord, against any loss or injury by reason of any contest or delay,
(c) such contest does not impair any pending sale or financing of the
Premises by Xxxxxx, and (d) such contest,
41
lien or charge does not put Landlord in default of any loan Landlord may have
which is secured by the Premises. Landlord will not be required to join any
proceedings referred to in this SECTION 48 unless the provision of any
applicable law, rule, or regulation at the time in effect requires that such
proceedings be brought by or in the name of Landlord. In that event,
Xxxxxxxx will join the proceedings or permit them to be brought in its name
if Tenant pays all related expenses (including Landlord's reasonable
attorneys' fees).
49. PARKING
During the term of this lease, Landlord shall make available to
Tenant at no additional cost to Tenant, on the Parking Area depicted on
EXHIBIT D attached hereto: 112 unreserved parking spaces and 5 covered,
reserved parking spaces.
50. MISCELLANEOUS
a. Any approval by Landlord or Landlord's architects and/or
engineers of any of Tenant's drawings, plans and specifications which are
prepared in connection with any construction of improvements in the Premises
shall not in any way be construed or operate to bind Landlord or to
constitute a representation or warranty of Landlord as to the adequacy or
sufficiency of such drawings, plans and specifications, or the improvements
to which they relate, for any use, purpose, or condition, but such approval
shall merely be the consent of Landlord as may be required hereunder in
connection with Xxxxxx's construction of improvements in the Premises in
accordance with such drawings, plans and specifications.
b. Each and every covenant and agreement contained in this
lease is, and shall be construed to be, a separate and independent covenant
and agreement.
c. There shall be no merger of this lease or of the
leasehold estate hereby created with the fee estate in the Premises or any
part thereof by reason of the fact that the same person may acquire or hold,
directly or indirectly this lease or the leasehold estate hereby created or
any interest in this lease or in such leasehold estate as well as the fee
estate in the leasehold premises or any interest in such fee estate.
d. Neither Landlord nor Landlord's agents or brokers have made any
representations or promises with respect to the Premises, the Building or the
Land except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease.
e. The submission of this lease to Tenant shall not be construed
as an offer, nor shall Tenant have any rights with respect thereto unless and
until Landlord
42
shall, or shall cause its managing agent to, execute a copy of this lease and
deliver the same to Tenant.
51. 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 - Outline of Premises
Exhibit B - Rules and Regulations
Exhibit C - Work Letter Agreement
Exhibit D - Tenant's Parking Area
Exhibit E - Memorandum of Lease Agreement
Exhibit F - Sign Criteria
Rider 1 - Schedule of Basic Rental
DATED as of the Lease Date.
LANDLORD: TENANT:
MERCANTILE PARTNERS, L.P., FLASHNET COMMUNICATIONS, INC.,
a Texas limited partnership a Texas corporation
By: Mercantile Corporation By: /s/ X. Xxxxx Xxxxxx
of Fort Worth, a Texas Printed Name: X. Xxxxx Xxxxxx
corporation, General Title: President
Partner
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Printed Name: Xxxxxxx Xxxxxxx
-----------------
Title: Vice President
------------------------
43
EXHIBIT A
OUTLINE OF PREMISES
44
EXHIBIT B
RULES AND REGULATIONS
1. The Building has protective and security systems installed. Xxxxxxxx
has a fire control and evacuation plan as approved by the relevant
public authorities. Tenant will furnish certain key people for
training in life safety emergencies. Landlord shall not, however, be
deemed a guarantor of the safety of persons or property in any
instance.
2. The main lobby doors will be open from [8:00] a.m. to [6:30] p. m.
Monday through Friday, and closed Saturdays, Sundays and Holidays. To
obtain after-hours admittance, Tenant and its agents and employees
must identify themselves and show need to enter the Building and
comply with such other procedures as Landlord may establish from time
to time.
3. The HVAC system will be operational from [7:30] a.m. to [6:00] p.m.
Monday through Friday. In the event HVAC is required beyond these
hours, Tenant may request additional HVAC to be billed direct to
Tenant. Electric heaters are not allowed in the Building.
4. The movement of Tenant's furniture, equipment, and supplies, into,
within, or out of the Building, shall be restricted to time, method,
and routing, as determined by Landlord. Tenant shall assume all
liability and risk to people, property equipment and Building, in such
movement. Landlord shall have the right to charge for after-hours
operation.
5. All deliveries, of any nature, will be routed through the location or
locations established by Landlord from time to time, subject to
procedures established from time to time by Landlord. No deliveries
will be allowed through or around the main lobby area. Likewise,
dollies and freight will not be allowed on the passenger elevators.
6. There shall not be used any hand truck, flatbed, or dolly, except for
those equipped with rubber tires, and in good repair.
7. The movement of heavy equipment will be required to be moved on steel,
plywood or hardboard of sufficient thickness to prevent any damage.
8. Should Tenant desire to place in the Building any heavy equipment,
including but not limited to, large or large concentration or heavy
files, safes, electronic data processing equipment or other unusually
heavy
45
equipment, approval must be obtained from Landlord. Standard
office floor loading is 70 PSF with 125 PSF in certain areas of the
core.
9. Business machines and mechanical equipment shall be placed so as not
to cause vibration noise and annoyance. Correction of said cause will
be at Tenant's expense.
10. No additional locks or bolts of any kind shall be placed on any
doors, nor shall any changes be made in the existing locks or
mechanisms thereof, without the prior written approval of Landlord,
which approval shall not be unreasonably withheld. Two keys to each
lock will be furnished. Additional keys may be obtained, at Tenant's
expense, from Landlord. Landlord may at all times keep
a passkey to Premises.
11. No Tenant shall mark, paint, drill, drive nails, or screw into or in
any way deface any part of the Building of which the Premises form a
part without the consent of Landlord.
12. All contractors and technicians rendering any service on or to the
Premises shall be referred to Landlord for approval and supervision.
This provision shall apply to all work including, but not limited to,
installation or changing communications equipment, electrical devices
and attachments, decorating, remodeling, or any other cosmetic change
to the Premises. Normal service calls and routine maintenance and
repairs to Tenant's equipment is excluded from this paragraph.
13. Tenant shall notify Landlord of all accidents to or defects in HVAC
equipment, plumbing, electrical, elevator, or any other part of the
Premises or the Building.
14. The plumbing facilities shall not be used for any other purpose than
that for which they were intended, and no foreign substance of any
kind shall be placed therein. All damages resulting from any misuse of
the fixtures shall be borne by the Tenant who or whose servants,
employees or agents shall have caused the same.
15. Tenant shall permit Landlord, or its agent, to enter the Premises to
make inspections, repairs, alterations or additions in or to the
Premises or the Building, and at any time in event of emergency,
permit Landlord to perform any acts related to safety protection,
preservation, reletting, or improvement of the Premises or the
Building.
16. Tenant shall, before leaving the Premises unattended, close and lock
46
outside doors, turn off lights, coffee pots, and other office
equipment. Damage resulting from failure to do so shall be paid for
by Tenant.
17. The sidewalks, entrances, passages, curbs, elevators, vestibules,
stairways, corridors, and halls shall not be obstructed or encumbered
in any way by any tenant or its agents at any time. In no event shall
Tenant or its agents dispose of, or store for any period of time, any
item in the public areas of the Building or the Premises.
18. A mail pickup point is established for mail bags and gondolas.
Gondolas will not be allowed in, on or around the main lobby area or
the passenger elevators. Mail bags and gondolas shall not be left in
lobbies, halls, corridors, driveways or any other areas. They must
come and go via the freight elevators and to the established pickup
point on the truck terminal dock, whether they are empty or full of
mail.
19. No sign, door plaques, advertisement, notice or other lettering shall
be exhibited, inscribed, painted or affixed on any part of the
exterior of the Premises Landlord will provide a standard letter type
finish which will be in accordance with Building Standard graphics.
Any variation of Building Standard must be submitted by drawing and
description for Landlord's written approval. In the event of
violation of the foregoing by any Tenant or its agents, Landlord may
remove same without any liability and shall bill the expense incurred
by such removal to the Tenant.
20. All materials including wall coverings and ceiling materials must
meet the requirements of applicable codes. Submission for approval of
all materials with complete plans and specifications including the
necessary data and certification is required to verify that applicable
codes have been met.
2l. Landlord will provide and maintain an alphabetical directory board in
the ground floor lobby and, at Landlord's discretion, will allot
appropriate name strip designations in writing.
22. Landlord reserves the right to install, maintain, or change a sign or
signs on the interior, exterior, or roof of the Premises except for
Tenant's signs which Landlord has previously approved in writing.
23. Xxxxxxxx will not be responsible for lost or stolen personal
property, equipment, money or any article taken from the Premises,
regardless of how or when loss occurs.
24. No live animals or birds shall be brought into or kept in or about the
47
Premises.
25. No canvassing, soliciting, or peddling will be allowed on the Premises
at any time.
26. The Premises shall not be used for lodging, sleeping, immoral or
illegal purposes.
27. No space on the Premises shall be used for the manufacturing or sale
of liquor, narcotics, or drugs in any form.
28. No showcase or other article shall be affixed to and part of the
Premises. Parcels, bottles, or any other articles shall not be placed
on the windowsills.
29. Tenant shall surrender and return promptly, to the Landlord, the
Premises, all keys, equipment, and fixtures in as good condition as
when Xxxxxx originally took possession, ordinary wear and tear, or
other casualty not caused by Xxxxxx's negligence, excepted.
30. Tenant shall not, without the prior written consent of Landlord,
serve, or allow to be served or consumed by Tenant or Tenant's agents,
employees, or invitees, any alcoholic beverages in the Common Areas or
any other portion of the Building. Landlord expressly reserves the
right to prohibit the service or consumption of alcoholic beverages in
the Common Areas or other portions of the Building, notwithstanding
Landlord's prior consent to such service or consumption.
31. Smoking of all tobacco products is prohibited within any and all parts
of the Building.
32. The foregoing rules and regulations are prescribed by Landlord in
order to provide and maintain, to the best of Landlord's ability,
orderly, clean, and desirable premises. Any difference of any of the
rules and regulations must be approved in writing, by the Landlord,
prior to any change. It is Xxxxxxxx's desire to maintain the highest
standard of dignity and good taste. Any action or condition not
meeting this high standard should be reported directly to Landlord.
Your cooperation will be mutually beneficial and sincerely
appreciated.
48
EXHIBIT C
WORK LETTER AGREEMENT
Landlord and Tenant mutually agree as follows:
l. FINAL PLANS. On or before March 15, 1999 ("Plan Approval Date"),
Landlord and Tenant shall use their best efforts to agree on the plans and
specifications for the construction of the Finish Work (as hereinafter
defined). If such plans and specifications have not been approved in writing
by Landlord and Tenant on or before the Plan Approval Date, either Landlord
or Tenant may terminate this lease by written notice to the other given on or
before March 20, 1999. The term "Final Plans" shall mean those plans and
specifications approved in writing by Landlord and Xxxxxx.
2. CONSTRUCTION OF IMPROVEMENTS. Subject to paragraph 4 of this
EXHIBIT C provided that Xxxxxx has not committed an event of default,
Landlord agrees to cause the improvements ("Finish Work") to the Premises to
be constructed pursuant to and in substantial accordance with the Final Plans
on or before the Completion Date (as hereinafter defined). Landlord shall
not be obligated to make any improvements to the Building and/or Premises
other than those specified in the Final Plans. Xxxxxxxx agrees to spend up
to, but not in excess of, $21.00 per square foot of Rentable Area in the
Premises for the construction of such Finish Work in the Premises. Such
amount is referred to in this lease as the "Finish Budget" or "Finish
Allowance." The Finish Budget shall be the maximum amount that Landlord shall
be obligated to spend for the Finish Work. In the event that the cost of the
Finish Work exceeds the Finish Budget, Tenant shall be solely responsible for
the payment of such excess. If the cost of the Finish Work is less than the
Finish Budget by an amount less than $50,000.00, then Landlord shall pay to
Tenant the amount that such cost was less than the Finish Budget. In the
event that the cost of the Finish Work is less than the Finish Budget by an
amount equal to or greater than $50,000.00, then Landlord will reduce the
Basic Rental by such amount amortized over the Lease Term. If the Finish
Work is constructed substantially in accordance with the Final Plans, Xxxxxx
agrees to accept the Finish Work at such time as the Landlord's architect
issues a written statement that the Finish Work has been completed
substantially in accordance with the Final Plans, except for minor touch-up
and finishing jobs which remain to be completed (which means items remaining
to be done which do not materially interfere with Xxxxxx's use of the
Premises). The term "Substantial Completion", "Substantially Completed" or
"Substantially Complete" shall mean that the Finish Work has been completed
substantially in accordance with the Final Plans, except for minor touch-up
and finishing jobs which remain to be completed and which do not materially
interfere with Xxxxxx's use of the Premises. Subject to those matters
referred to in paragraph 4 of this EXHIBIT C, Xxxxxxxx agrees to achieve
Substantial Completion on or before June 30, 1999
49
("Completion Date"). The date that Xxxxxxxx's architect issues such written
statement shall be deemed to be the date Substantial Completion was achieved.
When such architect's statement has been issued, Xxxxxx agrees to accept
possession thereof (in writing, requested by Xxxxxxxx) and to proceed with
due diligence to install Tenant's furniture, fixtures and equipment.
Xxxxxxxx agrees to proceed with due diligence to complete such touch-up and
finishing items after Substantial Completion. All of the Finish Work shall
be performed by contractors reasonably approved, selected and employed by
Landlord. Tenant agrees to use, and the Final Plans shall specify, Building
Standard (as hereinafter defined) (a) light fixtures, (b) doors, (c) ceiling
tiles, and (d) hardware throughout the Premises. Whenever the term "Building
Standard" is used in this Work Letter Agreement or the lease of which this
Work Letter Agreement comprises a part, it shall mean the exclusive type,
brand, quality and/or quantity of materials Landlord designates from time to
time to be the quality or quantity to be used in the Building.
3. ORIGINAL CONDITION. Tenant acknowledges that Xxxxxx has
inspected the Premises. The Premises, in existing condition, are hereinafter
referred to as being in "Original Condition."
4. DELAYS. It is agreed that, notwithstanding anything to the
contrary contained in this lease, if Landlord shall be delayed in achieving
Substantial Completion as a result of:
(a) Xxxxxxxx's and Xxxxxx's failure to agree on the Final Plans on
or before the Plan Approval Date; or
(b) Tenant's request for materials, finishes or installations
other than Landlord's Building Standard; or
(c) Tenant's changes in or modifications to the Final Plans; or
(d) Tenant's failure to timely select paint, carpet, wall
coverings, etc.; or
(e) Any other delay caused by Tenant or Tenant's agents, servants,
contractors or employees; or
(f) Any matters referred to in SECTION 29 of this lease;
the Completion Date shall be automatically extended by the number
of days of such delays and the Commencement Date shall not be postponed.
5. ENTRY BY TENANT'S AGENTS. Landlord will permit Tenant and its
agents to
50
enter the Premises prior to the date specified for the commencement of
Tenant's occupancy under the lease, in order that Tenant may perform through
its own contractors (to be first approved in writing by Landlord which
approval shall not be unreasonably withheld) such other work and decorations
as Landlord may approve at the same time that Xxxxxxxx's contractors are
working in the Premises. The foregoing license to enter prior to the
commencement of the Lease Term, however, is conditioned upon Xxxxxx's workmen
and mechanics working in harmony and not interfering with the labor employed
by Landlord, Landlord's mechanics or contractors or by any other tenant or
their contractors. Such license is further conditioned upon workers'
compensation and public liability insurance for bodily injury and property
damage, all in amounts and with companies and on forms satisfactory to
Landlord, being provided and at all times maintained by Xxxxxx's contractors
engaged in the performance of the work, and upon delivery of certificates of
such insurance to Landlord prior to proceeding with the work. If at any time
such entry shall cause disharmony or interference therewith, such license may
be withdrawn by Landlord upon forty-eight (48) hours written notice to
Tenant. Such entry shall be deemed to be under and subject to all of the
terms, covenants, provisions and conditions of the lease except the covenant
to pay rent. Landlord shall not be liable in any way for any injury, loss or
damage which may occur to any of Tenant's decorations or installations so
made prior to commencement of the Lease Term, the same being placed in the
Premises solely at Tenant's risk, and Xxxxxx agrees to indemnify and hold
Landlord harmless from any and all claims, demands, actions, damages, fines,
suits, losses, liabilities, expenses (including, without limitation,
reasonable attorneys' fees) and judgments arising out of or relating to
activities of Xxxxxx's contractors, workmen or mechanics.
51
RIDER 1
SCHEDULE OF BASIC RENTAL
The Basic Rental for the first (1st) through the fifth (5th) years of
the Lease Term shall be $439,153.75 per year ($14.23 per square foot of
Rentable Area); and for the sixth (6th) through the tenth (10th) years of
the Lease Term shall be $454,347.52 per year ($14.72 per square foot of
Rentable Area).
52
EXHIBIT E
MEMORANDUM OF LEASE AGREEMENT
THE STATE OF TEXAS )(
)(
COUNTY OF TARRANT )(
This Memorandum of Lease Agreement (this "Memorandum") is made and
entered into to be effective for all purposes as of ______________, 1999, by
and between MERCANTILE PARTNERS, L.P., a Texas limited partnership
("Landlord"), and FLASHNET COMMUNICATIONS, INC., a Texas corporation
("Tenant"), as follows:
1. Landlord and Xxxxxx have executed that certain Lease Agreement
(the "Lease") dated ____________, 1999, whereby Landlord has leased to Tenant
the property described in EXHIBIT "A", attached hereto and made a part hereof
(the "Property").
2. The Lease sets forth the above names of Landlord and Xxxxxx.
3. Xxxxxxxx's address is 0000 Xxxxxxx Xxxx., Xxxx Xxxxx, Xxxxx
00000-0000, Attention: Xxxxxxx X. Xxxxxxx.
4. Xxxxxx's address is 0000 Xxxxxxx Xxxx., Xxxxx 000, Xxxx Xxxxx,
Xxxxx 00000, Attention: Xxx Xxxxxxxxx.
5. The initial term of the Lease is for a period beginning on
July 1, 1999, and continuing thereafter to and including June 30, 2009,
unless sooner terminated.
6. In addition to those terms referred to above, the Lease
contains numerous other terms, covenants, and conditions which affect the
Property, and notice is hereby given that reference should be had to the
Lease directly with respect to the details of such terms, covenants, and
conditions. Copies of the Lease are maintained at the offices of Landlord
and of Tenant as set forth above.
7. This Memorandum does not alter, amend, modify, or change the
Lease or the exhibits or schedules thereto in any respect. This Memorandum
is executed by the parties solely for the purpose of recordation in the Real
Property Records of Tarrant County, Texas, and it is the intent of the
parties that it shall be so
53
recorded and shall give notice of and confirm the Lease and exhibits and
schedules thereto and all of its terms to the same extent as if all of the
provisions of the Lease and exhibits and schedules thereto were fully set
forth herein. The Lease and exhibits and schedules thereto are hereby
incorporated by reference in this Memorandum, and the parties hereby ratify
and confirm the Lease as if the Lease were being re-executed by them and
recorded. In the event of any conflict between the provisions of this
Memorandum and the Lease, the provisions of the Lease shall control.
Xxxxxxxx and Xxxxxx have executed this Memorandum to be effective
as of the date first above written.
LANDLORD:
MERCANTILE PARTNERS, L.P.,
a Texas limited partnership
By: Mercantile Corporation of Fort
Worth, a Texas corporation,
General Partner
By:
Printed Name:
Title:
TENANT:
FLASHNET COMMUNICATIONS, INC.
By:
Printed Name:
Title:
54
THE STATE OF TEXAS )(
)(
COUNTY OF TARRANT )(
The foregoing instrument was acknowledged before me on the ____ day
of __________________ , 1999, by __________________, __________________ of
Mercantile Corporation of Fort Worth, a Texas corporation, General Partner of
MERCANTILE PARTNERS, L.P., a Texas limited partnership, on behalf of said
partnership.
Notary Public, in and for
the State of
My Commission Expires: Printed Name of Notary:
_____________________
THE STATE OF _________ )(
)(
COUNTY OF ____________ )(
The foregoing instrument was acknowledged before me on the ____ day
of ______________, 1999, by ________________________, _______________ of
FLASHNET COMMUNICATIONS, INC., a Texas corporation, on behalf of said
corporation.
Notary Public, in and for
the State of
My Commission Expires: Printed Name of Notary:
_______________________
55
