PREMPLACE LIMITED PARTNERSHIP,
AS LANDLORD, AND
INSTITUTIONAL EQUITY HOLDINGS, INC.,
AS TENANT
DATED AUGUST 18, 1999
PREMIER PLACE
DALLAS, TEXAS
BASIC LEASE INFORMATION
Lease Date: August 18, 1999
Landlord: PREM1LACE LIMITED PARTNERSHIP, a Delaware limited partnership Tenant:
INSTITUTIONAL EQUITY HOLDINGS, INC., a Nevada corporation Premises: Suite No.
1480, containing 7,059 rentable square feet, in the office building commonly
known as Premier Place (the "Buildin2"), and whose street address is ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. The Premises are outlined on the plan
attached to the Lease as Exhibit A. The land on --------- which the Building is
located (the "Land") is described on Exhibit B. The term "Building" includes the
--------- related land, driveways, parking facilities, and similar improvements.
Term: Approximately 62 months, commencing on the Commencement Date and ending at
5:00 pm. local time on the last day of the 62nd full calendar month following
the Commencement Date, subject to adjustment and earlier termination as provided
in the Lease.
Commencement Date: The earliest of(a) the date on which Tenant occupies any
portion of the Premises and begins conducting business therein, (b) the date on
which the Work (as defined in Exhibit D hereto) in the Premises is Substantially
Completed (as defined in Exhibit D hereto), or (c) the date on which the Work in
the Premises would have been Substantially Completed but for the occurrence of
any Tenant Delay Days (as defmed in
Exhibit D hereto).
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Subject to the abatement of Basic Rent as provided in Exhibit I hereto, Basic
Rent shall be the following amounts for the following periods of time
As used herein, the term "Lease Month" shall mean each calendar month during the
Term (and if the Commencement Date does not occur on the first day of a calendar
month, the period from the Commencement Date to the first day of the next
calendar month shall be included in the first Lease Month for purposes of
determining the duration of the Term and the monthly Basic Rent rate applicable
for such partial
month).
Security Deposit: $112,353.25.
Basic Rent, ▇▇▇▇▇▇'s Proportionate Share of Taxes and Electrical Costs, Tenant's
share of Additional Rent, and all other sums that Tenant may owe to Landlord or
otherwise be required to pay under the Lease.
THIS LEASE AGREEMENT (this "Lease") is entered into as
of August 18, 1999, between PREMPLACE LIMITED PARTNERSHIP,
a Delaware limited partnership ("Landlord"), and INSTITUTIONAL EQUITY HOLDINGS,
INC., a Nevada corporation ("Tenant").
1. Definitions and Basic Provisions. The definitions and basic
provisions set forth in the Basic Lease Information (the "Basic Lease
Information") executed by ▇▇▇▇▇▇▇▇ and Tenant contemporaneously herewith are
incorporated herein by reference for all purposes. Additionally, the following
terms shall have the following meanings when used in this Lease: "Affiliate"
means any person or entity which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
party in question; "Buildin2's Structure" means the Building's exterior walls,
roof, elevator shafts, footings, foundations, structural portions of
load-bearing walls, structural floors and subfloors, and structural columns and
beams; "Building's Systems" means the Building's HYAC, life-safety, plumbing,
electrical, and mechanical systems; "including" means including, without
limitation; "Laws" means all federal, state, and local laws, rules and
regulations, all court orders, governmental directives, and governmental orders,
and all restrictive covenants affecting the Building, and "Law" shall mean any
of the foregoing; and "Tenant Party" means any of the following persons: Tenant;
any assignees claiming by, through, or under ▇▇▇▇▇▇; any subtenants claiming by,
through, or under ▇▇▇▇▇▇; and any of their respective agents, contractors,
employees, and invitees.
2. Lease Grant. Subject to the terms of this Lease, Landlord leases to Tenant,
and Tenant leases from ------------
Landlord, the Premises.
3. Tender of Possession. Landlord and Tenant presently anticipate that
possession of the Premises will be tendered to Tenant (with the Work to be
performed by Landlord therein, if any, Substantially Completed) on or about
September 15, 1999 (the "Estimated Delivery Date"). If Landlord is unable to
tender possession of the Premises in such condition to Tenant by the Estimated
Delivery Date, then (a) Landlord shall not be in default hereunder or be liable
for damages therefor, and (b) Tenant shall accept possession of the Premises
when Landlord tenders possession thereof to Tenant. By occupying the Premises,
Tenant shall be deemed to have accepted the Premises in their condition as of
the date of such occupancy, subject to the performance of punch-list items that
remain to be performed by ▇▇▇▇▇▇▇▇, if any. Tenant shall execute and deliver to
Landlord, within ten days after Landlord has requested the same, a letter
substantially in the form of Exhibit E hereto confirming (1) the Commencement
Date and the expiration date of the initial Term, (2) that Tenant has accepted
the Premises, and (3) that Landlord has performed all of its obligations with
respect to the Premises (except for punch-list items specified in such letter).
Occupancy of the Premises by Tenant prior to the Commencement Date shall be
subject to all of the provisions of this Lease excepting only those requiring
the payment of Basic Rent, Additional Rent, Taxes and Electrical Costs (each as
defmed herein).
4. Rent.
(a) Payment. Tenant shall timely pay to Landlord Rent, without notice,
demand, deduction or set off (except as otherwise expressly
provided herein), at Landlord's address provided for in this Lease
or as otherwise specified by Landlord and shall be accompanied by
all applicable state and local sales or use taxes. Basic Rent,
adjusted as herein provided, shall be payable monthly in advance.
The first monthly installment of Basic Rent shall be payable
contemporaneously with the execution of this Lease; thereafter
Basic Rent shall be payable on the first day of each month beginning on the
first day of the second full calendar month of the Term. The monthly Basic Rent
for any partial month at the beginning of the Term shall equal the product of
1/365 of the annual Basic Rent in effect during the partial month and the number
of days in the partial month from and after the Commencement Date, and shall be
due on the Commencement Date.
(b) Operating Costs: Taxes: Electrical Costs.
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(1) Tenant shall pay to Landlord the amount (per each rentable
square foot in the Premises) ("Additional Rent") by which the annual Operating
Costs (defined below) per rentable square foot in the Building exceed the
Expense Stop (per rentable square foot in the Building). Landlord may make a
good faith estimate of the Additional Rent to be due by Tenant for any calendar
year or part thereof during the Term. During each calendar year or partial
calendar year of the Term (after the base year, if the Expense Stop is
calculated on a base year basis), Tenant shall pay to Landlord, in advance
concurrently with each monthly installment of Basic Rent, an amount equal to the
estimated Additional Rent for such calendar year or part thereof divided by the
number of months therein. From time to time, Landlord may estimate and
re-estimate the Additional Rent to be due by ▇▇▇▇▇▇ and deliver a copy of the
estimate or re-estimate to Tenant. Thereafter, the monthly installments of
Additional Rent payable by Tenant shall be appropriately adjusted in accordance
with the estimations so that, by the end of the calendar year in question,
Tenant shall have paid all of the Additional Rent as estimated by Landlord. Any
amounts paid based on such an estimate shall be subject to adjustment as herein
provided when actual Operating Costs are available for each calendar year.
(b) (2) The term Operating Costs" shall mean all expenses and disbursements
(subject to the l imitations set forth below) that
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Landlord incurs in connection with the ownership, operation, and maintenance of
the Building, determined in accordance with sound accounting principles
consistently applied, including the following costs: (A) wages and salaries
(including management fees) of all on-site employees at or below the grade of
senior building manager engaged in the operation, maintenance or security of the
Building (together with Landlord's reasonable allocation of expenses of off-site
employees at or below the grade of senior building manager who perform a portion
of their services in connection with the operation, maintenance or security of
the Building), including taxes, insurance and benefits relating thereto; (B) all
supplies and materials used in the operation, maintenance, repair, replacement,
and security of the Building; (C) costs for improvements made to the Building
which, although capital in nature, are expected to reduce the normal operating
costs (including all utility Costs) of the Building, as amortized using a
commercially reasonable interest rate over the time period reasonably estimated
by Landlord to recover the costs thereof taking into consideration the
anticipated cost savings, as determined by Landlord using its good faith,
commercially reasonable judgment, as well as capital improvements made in order
to comply with any Law hereafter promulgated by any governmental authority or
any interpretation hereafter rendered with respect to any existing Law, as
amortized using a commercially reasonable interest rate over the useful economic
life of such improvements as determined by Landlord in its reasonable
discretion; (D) cost of all utilities, except Electrical Costs and the cost of
other utilities reimbursable to Landlord by the Building's tenants other than
pursuant to a provision similar to this Section 4(b); (E) insurance expenses;
(F) repairs, replacements, and general maintenance of the Building; and (G)
service or maintenance contracts with independent contractors for the operation,
maintenance, repair, replacement, or security of the Building (including alarm
service, window cleaning, and elevator maintenance).
Operating Costs shall not include costs for (i) capital improvements made to the
Building, other than capital improvements described in Section 4.(b)(2)(C) and
except for items which are generally considered maintenance and repair items,
such as painting of common areas, replacement of carpet in elevator lobbies, and
the like; (ii) repair, replacements and general maintenance paid by proceeds of
insurance or by Tenant or other third parties; (iii) interest, amortization or
other payments on loans to Landlord; (iv) depreciation; (v) leasing commissions;
(vi) legal expenses for services, other than those that benefit the Building
tenants generally (e.g., tax disputes); (vii) renovating or otherwise improving
space for occupants of the Building or vacant space in the Building; (viii)
Taxes; and (ix) federal income taxes imposed on or measured by the income of
Landlord from the operation of the Building. If the Expense Stop is calculated
on a base year basis, Operating Costs for the base year only shall not include
market-wide labor-rate increases due to extraordinary circumstances, including
boycotts and strikes; utility rate increases due to extraordinary circumstances,
including conservation surcharges. boycotts, embargos or other shortages; or
amortized costs relating to capital improvements.
(3) Tenant shall also pay its Proportionate Share of any
increase in Taxes for each year and partial year falling within the Term over
the Taxes for the Base Tax Year. Tenant shall pay its Proportionate Share of
Taxes in the same manner as provided above for Additional Rent with regard to
Operating Costs. "Taxes" shall mean taxes, assessments, and governmental charges
or fees whether federal, state, county or municipal, and whether they be by
taxing districts or authorities presently taxing or by others, subsequently
created or otherwise, and any other taxes and assessments (including
non-governmental assessments for common charges under a restrictive covenant or
other private agreement that are not treated as part of Operating Costs) now or
hereafter attributable to the Building (or its operation), excluding, however,
penalties and interest thereon and federal and state taxes on income (if the
present method of taxation changes so that in lieu of the whole or any part of
any Taxes, there is levied on Landlord a capital tax directly on the rents
received therefrom or a franchise tax, assessment, or charge based, in whole or
in part, upon such rents for the Building, then all such taxes, assessments, or
charges, or the part thereof so based, shall be deemed to be included within the
term "Taxes" for purposes hereof). Taxes shall include the costs of consultants
retained in an effort to lower taxes and all costs incurred in disputing any
taxes or in seeking to lower the tax valuation of the Building. For property tax
purposes, Tenant waives all rights to protest or appeal the appraised value of
the Premises, as well as the Building, and all rights to receive notices of
reappraisement as set forth in Sections 41.413 and 42.015 of the Texas Tax Code.
(4) Tenant shall also pay to Landlord ▇▇▇▇▇▇'s Proportionate
Share of the cost of all electricity used by the Building ("Electrical Costs").
Such amount shall be payable in monthly installments on the Commencement Date
and on the first day of each calendar month thereafter. Each installment shall
be based on ▇▇▇▇▇▇▇▇'s estimate of the amount due for each month. From time to
time during any calendar year, Landlord may estimate or re-estimate the
Electrical Costs to be due by Tenant for that calendar year and deliver a copy
of the estimate or re-estimate to Tenant. Thereafter, the monthly installments
of Electrical Costs payable by Tenant shall be appropriately adjusted in
accordance with the estimations.
(5) By April 1 of each calendar year, or as soon thereafter as
practicable, Landlord shall furnish to Tenant a statement of Operating Costs and
Electrical Costs for the previous year, in each case adjusted as provided in
Section 4(b)(6), and of the Taxes for the previous year (the "Operating Costs
and Tax Statement"). If the Operating Costs and Tax Statement reveals that
Tenant paid more for Operating Costs or Electrical Costs than the actual amount
for the year for which such statement was prepared, or more than its actual
share of Taxes for such year, then Landlord shall common with other tenants,
provided that Landlord may reasonably limit the number of operating elevators
during non-business hours and holidays; and(S) electrical current during normal
business hours for equipment that does not require more than 110 volts and whose
electrical energy consumption does not exceed normal office usage. Landlord
shall maintain the common areas of the Building in reasonably good order and
condition, except for damage caused by a Tenant Party. If Tenant desires any of
the services specified in Section 7.(a)(2): (A) at any time other than between
7:00 a.m. and 6:00 p.m. on weekdays and between 8:00 a.m. and 1:00 p.m. on
Saturday (in each case other than holidays), or (B) on Sunday or holidays, then
such services shall be supplied to Tenant upon the written request of Tenant
delivered to Landlord before 3:00 p.m. on the business day preceding such extra
usage, and Tenant shall pay to Landlord the cost of such services within 30 days
after Landlord has delivered to Tenant an invoice therefor. The costs incurred
by Landlord in providing after-hour HVAC service to Tenant shall include costs
for electricity, water, sewage, water treatment, labor, metering, filtering, and
maintenance reasonably allocated by Landlord to providing such service.
(b) Excess Utility Use. Landlord shall not be required to
furnish electrical current for equipment that requires more than 110 volts or
other equipment whose electrical energy consumption exceeds normal office usage.
If Tenant's requirements for or consumption of electricity exceed the
electricity to be provided by Landlord as described in Section 7(a), Landlord
shall, at Tenant's expense, make reasonable efforts to supply such service
through the then-existing feeders and risers serving the Building and the
Premises, and Tenant shall pay to Landlord the cost of such service within 30
days after Landlord has delivered to Tenant an invoice therefor. Landlord may
determine the amount of such additional consumption and potential consumption by
any verifiable method, including installation of a separate meter in the
Premises installed, maintained, and read by Landlord, at Tenant's expense.
Tenant shall not install any electrical equipment requiring special wiring or
requiring voltage in excess of 110 volts or otherwise exceeding Building
capacity unless approved in advance by Landlord. The use of electricity in the
Premises shall not exceed the capacity of existing feeders and risers to or
wiring in the Premises. Any risers or wiring required to meet Tenant's excess
electrical requirements shall, upon ▇▇▇▇▇▇'s written request, be installed by
Landlord, at Tenant's cost, if, in Landlord's judgment, the same are necessary
and shall not cause permanent damage to the Building or the Premises, cause or
create a dangerous or hazardous condition, entail excessive or unreasonable
alterations, repairs, or expenses, or interfere with or disturb other tenants of
the Building. If Tenant uses machines or equipment in the Premises which affect
the temperature otherwise maintained by the air conditioning system or otherwise
overload any utility, Landlord may install supplemental air conditioning units
or other supplemental equipment in the Premises, and the cost thereof, including
the cost of installation, operation, use, and maintenance, shall be paid by
Tenant to Landlord within 30 days after Landlord has delivered to Tenant an
invoice therefor.
(c) Restoration of Services; Abatement. Landlord shall use reasonable
efforts to restore any service required of it that becomes
unavailable; however, such unavailability shall not render
Landlord liable for any damages caused thereby, be a constructive
eviction of Tenant, constitute a breach of any implied warranty,
or, except as provided in the next sentence, entitle Tenant to any
abatement of ▇▇▇▇▇▇'s obligations hereunder. If, however, ▇▇▇▇▇▇
is prevented from using the Premises for more than five
consecutive business days because of the unavailability of any
such service and such unavailability was not caused by a Tenant
Party, then Tenant shall, as its exclusive remedy be entitled to a
reasonable abatement of Rent for each consecutive day (after such
five-day period) that Tenant is so prevented from using the
Premises.
(a) Improvements Alterations. Improvements to the Premises shall be installed at
Tenant's expense
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only in accordance with plans and specifications which have been previously
submitted to and approved in writing by Landlord, which approval shall be
governed by standards in the following sentence. No alterations or physical
additions in or to the Premises may be made without Landlord's prior written
consent, which shall not be unreasonably withheld or delayed; however, Landlord
may withhold its consent to any alteration or addition that would adversely
affect (in the reasonable discretion of Landlord) (1) the Building's Structure
or the Building's Systems (including the Building's restrooms or mechanical
rooms), (2) the exterior appearance of the Building, or (3) the appearance of
the Building's common areas or elevator lobby areas. Tenant shall not paint or
install lighting or decorations, signs, window or door lettering, or advertising
media of any type on or about the Premises without the prior written consent of
Landlord, which shall not be unreasonably withheld or delayed; however, Landlord
may withhold its consent to any such painting or installation which would affect
the appearance of the exterior of the Building or of any common areas of the
Building. All alterations, additions, and improvements shall be constructed,
maintained, and used by Tenant, at its risk and expense, in accordance with all
Laws; Landlord's consent to or approval of any alterations, additions or
improvements (or the plans therefor) shall not constitute a representation or
warranty by Landlord, nor Landlord's acceptance, that the same comply with sound
architectural and/or engineering practices or with all applicable Laws, and
Tenant shall be solely responsible for ensuring all such compliance.
(b) Repairs Maintenance. Tenant shall maintain the Premises in a
clean, safe, and operable condition, and shall not permit or allow to remain any
waste or damage to any portion of the Premises. Tenant shall repair or replace,
subject to Landlord's direction and supervision, any damage to the Building
caused by a Tenant Party. If Tenant fails to make such repairs or replacements
within 15 days after the occurrence of such damage, then Landlord may make the
same at Tenant's cost. If any such damage occurs outside of the Premises, then
Landlord may elect to repair such damage at Tenant's expense, rather than having
Tenant repair such damage. The cost of all repair or replacement work performed
by Landlord under this Section S shall be paid by Tenant to Landlord within 30
days after Landlord has invoiced Tenant therefor.
(c) Performance of Work. All work described in this Section 8
shall be performed only by Landlord or by contractors and subcontractors
approved in writing by Landlord. Tenant shall cause all contractors and
subcontractors to procure and maintain insurance coverage naming Landlord as an
additional insured against such risks, in such amounts, and with such companies
as Landlord may reasonably require. All such work shall be performed in
accordance with all Laws and in a good and workmanlike manner so as not to
damage the Building (including the Premises, the Building's Structure and the
Building's Systems). All such work which may affect the Building's Structure or
the Building's Systems must be approved by the Building's engineer of record, at
▇▇▇▇▇▇'s expense and, at Landlord's election, must be performed by ▇▇▇▇▇▇▇▇'s
usual contractor for such work.
(d) ▇▇▇▇▇▇▇▇'s Liens. Tenant shall not permit any mechanic's
liens to be filed against the Premises or the Building for any work performed,
materials furnished, or obligation incurred by or at the request of Tenant. If
such a lien is filed, then Tenant shall, within ten days after ▇▇▇▇▇▇▇▇ has
delivered notice of the filing thereof to Tenant (or such earlier time period as
may be necessary to prevent the forfeiture of the Building or any interest of
Landlord therein or the imposition of a civil or criminal fine with respect
thereto), either (1) pay the amount of the lien and cause the lien to be
released of record, or (2) diligently contest such lien and deliver to Landlord
a bond or other security reasonably satisfactory to Landlord. If Tenant fails to
timely take either such action, then Landlord may pay the lien claim, and any
amounts so paid, including expenses and interest, shall be paid by Tenant to
Landlord within ten days after Landlord has invoiced Tenant
therefor. All materialmen, contractors, artisans, mechanics, laborers and any
other persons now or hereafter contracting with Tenant or any contractor or
subcontractor of Tenant for the furnishing of any labor, services, materials,
supplies or equipment with respect to any portion
of the Premises, at any time from the date hereof until the end
of the Term, are hereby charged with notice that they look
exclusively to Tenant to obtain payment for same. Nothing
herein shall be deemed a consent by Landlord to any liens being
placed upon the Building or Landlord's interest therein due to
any work performed by or for Tenant.
9. . Tenant shall continuously occupy and use the Premises only for the
Permitted Use and shall comply with all Laws relating to the use, condition,
access to, and occupancy of the Premises. The population density within the
Premises as a whole shall at no time exceed one person for each 300 rentable
square feet in the Premises. Tenant shall not conduct second or third shift
operations within the Premises; however, Tenant may use the Premises after
normal business hours, so long as Tenant is not generally conducting business
from the Premises after normal business hours. The Premises shall not be used
for any use which is disreputable, creates extraordinary fire hazards, or
results in an increased rate of insurance on the Building or its contents, or
for the storage of any Hazardous Materials (other than typical office supplies
photocopier toner] and then only in compliance with all Laws). Tenant shall not
use any substantial portion of the Premises for a "call center," any other
telemarketing use, or any credit processing use. If, because of a Tenant Party's
acts, the rate of insurance on the Building or its contents increases, then such
acts shall be an Event of Default, Tenant shall pay to Landlord the amount of
such increase on demand, and acceptance of such payment shall not waive any of
Landlord's other rights. Tenant shall conduct its business and control each
other Tenant Party so as not to create any nuisance or unreasonably interfere
with other tenants or Landlord in its management of the Building.
10. Assignment and SubIetting
(a) Transfers. Except as provided in Section 10(g), Tenant shall
not, without the prior written consent of Landlord, (1) assign, transfer, or
encumber this Lease or any estate or interest herein, whether directly or by
operation of law, (2) permit any other entity to become Tenant hereunder by
merger, consolidation, or other reorganization, (3) if Tenant is an entity other
than a corporation whose stock is publicly traded, permit the transfer of an
ownership interest in Tenant so as to result in a change in the current control
of Tenant, (4) sublet anyportion ofthe Premises, (5) grant any license,
concession, or otherright of occupancy of any portion of the Premises, or 6
permit the use of the Premises by any parties other than Tenant (any of the
events listed in Section I0(a)(l) through lO.(a)(6) being a "Transfer").
(b) Consent Standards. Landlord shall not unreasonably withhold
its consent to any assignment or subletting of the Premises, provided that the
proposed transferee (A) is creditworthy, (B) has a good reputation in the
business community, (C) will use the Premises for the Permitted Use (thus,
excluding, without limitation, uses for credit processing and telemarketing) and
will not use the Premises in any manner that would conflict with any exclusive
use agreement or other similar agreement entered into by Landlord with any other
tenant of the Building, (D) is not a governmental entity, or subdivision or
agency thereof, and (E) is not another occupant of the Building or person or
entity with whom Landlord is negotiating to lease space in the Building;
otherwise, Landlord may withhold its consent in its sole discretion.
(c) Request for Consent. If Tenant requests ▇▇▇▇▇▇▇▇'s consent
to a Transfer, then, at least 15 business days prior to the effective date of
the proposed Transfer, Tenant shall provide Landlord with a written description
of all terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee: name
and address; reasonably satisfactory information about its business and business
history; its proposed use of the Premises; banking,
financial, and other credit information; and general references sufficient to
enable Landlord to determine the proposed transferee's creditworthiness and
character. Concurrently with ▇▇▇▇▇▇'s notice of any request for consent to a
Transfer, Tenant shall pay to Landlord a fee of $1,000 to defray Landlord's
expenses in reviewing such request, and ▇▇▇▇▇▇ shall also reimburse Landlord
immediately upon request
for its reasonable attorneys' fees incurred in connection with
considering any request for consent to a Transfer.
(d) Conditions to Consent. If Landlord consents to a proposed Transfer, then the
proposed transferee --------------------- shall deliver to Landlord a written
agreement whereby it expressly assumes Tenant's obligations hereunder; however,
any transferee of less than all of the space in the Premises shall be liable
only for obligations under this Lease that are properly allocable to the space
subject to the Transfer for the period of the Transfer. No Transfer shall
release Tenant from its obligations under this Lease, but rather Tenant and its
transferee shall be jointly and severally liable therefor. ▇▇▇▇▇▇▇▇'s consent to
any Transfer shall not waive Landlord's rights as to any subsequent Transfers.
If an Event of Default occurs while the Premises or any part thereof are subject
to a Transfer, then Landlord, in addition to its other remedies, may collect
directly from such transferee all rents becoming due to Tenant and apply such
rents against Rent. Tenant authorizes its transferees to make payments of rent
directly to Landlord upon receipt of notice from Landlord to do so following the
occurrence of an Event of Default hereunder. Tenant shall pay for the cost of
any demising walls or other improvements necessitated by a proposed subletting
or assignment.
(e) Cancellation. Landlord may, within 30 days after submission
of ▇▇▇▇▇▇'s written request for ▇▇▇▇▇▇▇▇'s consent to an assignment or
subletting, cancel this Lease as to the portion of the Premises proposed to be
sublet or assigned as of the date the proposed Transfer is to be effective. If
Landlord cancels this Lease as to any portion of the Premises, then this Lease
shall cease for such portion of the Premises and Tenant shall pay to Landlord
all Rent accrued through the cancellation date relating to the portion of the
Premises covered by the proposed Transfer. Thereafter, Landlord may lease such
portion of the Premises to the prospective transferee (or to any other person)
without liability to Tenant.
(t) Additional Compensation. Tenant shall pay to Landlord,
immediately upon receipt thereof, the excess of (1) all compensation received by
Tenant for a Transfer less the costs reasonably incurred by Tenant with
unaffiliated third parties in connection with such Transfer (i.e., brokerage
commissions, tenant finish work, and the like) over (2) the Rent allocable to
the portion of the Premises covered thereby.
(g) Perirntted Transfers. Notwithstanding Section 10(a), Tenant
may Transfer all or part of its interest in this Lease or all or part of the
Premises (a "Permitted Transfer") to the following types of entities (a
`Permitted Transferee") without the written consent of Landlord:
(1) an Affiliate of Tenant;
(2) any corporation, limited partnership, limited liability
partnership, limited liability company or other business entity in which or with
which Tenant, or its corporate successors or assigns, is merged or consolidated,
in accordance with applicable statutory provisions governing merger and
consolidation of business entities, so long as (A) Tenant's obligations
hereunder are assumed by the entity surviving such merger or created by such
consolidation; and (B) the Tangible Net Worth of the surviving or created entity
is not less than the Tangible Net Worth of Tenant as of the date hereof; or
(3) any corporation, limited partnership, limited liability
partnership, limited liability company or other business entity acquiring all or
substantially all of Tenant's assets if such
entity's Tangible Net Worth after such acquisition is
not less than the Tangible Net Worth of Tenant as of
the date hereof.
Tenant shall promptly notify Landlord of any such Permitted
Transfer. Tenant shall remain liable for the performance of all
of the obligations of Tenant hereunder, or if Tenant no longer
exists because of a merger, consolidation, or acquisition, the
surviving or acquiring entity shall expressly assume in writing
the obligations of Tenant hereunder. Additionally, the
Permitted Transferee shall comply with all of the terms and
conditions of this Lease, including the Permitted Use, and the
use of the Premises by the Permitted Transferee may not violate
any other agreements affecting the Premises, the Building,
Landlord or other tenants of the Building. At least 30 days
after the effective date of any Permitted Transfer, ▇▇▇▇▇▇
agrees to furnish Landlord with copies of the instrument
effecting any of the foregoing Transfers and documentation
establishing Tenant's satisfaction of the requirements set
forth above applicable to any such Transfer. The occurrence of
a Permitted Transfer shall not waive Landlord's rights as to
any subsequent Transfers. Tangible Net Worth" means the excess
of total assets over total liabilities, in each case as
determined in accordance with generally accepted accounting
principles consistently applied ("GAAP"), excluding, however,
from the determination of total assets all assets which would
be classified as intangible assets under GAAP including
goodwill, licenses, patents, trademarks, trade names,
copyrights, and franchises. Any subsequent Transfer by a
Permitted Transferee shall be subject to the terms of this
Section 10.
11. Insurance Waivers: Subrogation: Indemnity.
-----------------------------------------
(a) Tenant's Insurance. Tenant shall maintain
throughout the Term the following insurance policies: (1)
commercial general liability insurance in amounts of $3,000,000
per occurrence or, following the expiration of the initial
Term, such other amounts as Landlord may from time to time
reasonably require, insuring Tenant, Landlord, Landlord's
agents and their respective Affiliates against all liability
for injury to or death of a person or persons or damage to
property arising from the use and occupancy of the Premises,
(2) insurance covering the full value of Tenant's property and
improvements, and other property (including property of others)
in the Premises, (3) contractual liability insurance sufficient
to cover Tenant's indemnity obligations hereunder (but only if
such contractual liability insurance is not already included in
Tenant's commercial general liability insurance policy), (4)
worker's compensation insurance, and(S) business interruption
insurance. Tenant's insurance shall provide primary coverage to
Landlord when any policy issued to Landlord provides duplicate
or similar coverage, and in such circumstance Landlord's policy
will be excess over Tenant's policy. Tenant shall furnish to
Landlord certificates of such insurance and such other evidence
satisfactory to Landlord of the maintenance of all insurance
coverages required hereunder, and Tenant shall obtain a written
obligation on the part of each insurance company to notify
Landlord at least 30 days before cancellation or a material
change of any such insurance policies. All such insurance
policies shall be in form, and issued by companies, reasonably
satisfactory to Landlord.
(b) Landlord's Insurance. Throughout the Term
of this Lease, Landlord shall maintain, as a minimum, the
following insurance policies: (1) fire and extended risk
insurance for the Building's replacement value and (2)
commercial general liability insurance in an amount of not less
than $3,000,000. The cost of all insurance carried by Landlord
with respect to the Building shall be included in Operating
Costs.
(c) No Subrogation. Landlord and Tenant each
waives any claim it might have against the other for any injury
to or death of any person or persons or damage to or theft,
destruction, loss, or loss of use of any property (a Loss to
the extent the same is insured against under any insurance
policy that covers the Building, the Premises, Landlord's or
Tenant's fixtures, personal property, leasehold improvements,
or business, or, in the case of Tenant's waiver, is required to
be insured against under the terms hereof, regardless of
whether the negligence of the other party caused such Loss.
Each party shall cause its insurance carrier to endorse all
applicable policies waiving the carrier's rights of recovery
under subrogation or otherwise against the other party.
(d) Indemnity. Subject to Section 1 ]~.(c.),
Tenant shall defend, indemnify, and hold harmless Landlord and
its representatives and agents from and against all claims,
demands, liabilities, causes of action, suits,judgments,
damages, and expenses (including attorneys' fees) arising from
(1) any Loss arising from any occurrence on the Premises or (2)
Tenant's failure to perform its obligations under this Lease,
even though caused or alleged to be caused by the negligence or
fault of Landlord or its agents (other than a Loss arising from
the sole or gross negligence of Landlord or its agents), and
even though any such claim, cause of action, or suit is based
upon or alleged to be based upon the strict liability of
Landlord or its agents. This indemnity is intended to indemnify
Landlord and its agents against the consequences of their own
negligence or fault as provided above when Landlord or its
agents are jointly, comparatively, contributively, or
concurrently negligent with Tenant. Subject to Section 11 (c),
Landlord shall defend, indenmify, and hold harmless Tenant and
its agents from and against all claims, demands, liabilities,
causes of action, suits, judgments, and expenses (including
attorneys' fees) for any Loss arising from any occurrence in
the Building's common areas, even though caused or alleged to
be caused by the negligence or fault of Tenant or its agents
(other than a Loss arising from the sole or gross negligence of
Tenant or its agents), and even though any such claim, cause of
action, or suit is based upon or alleged to be based upon the
strict liability of Tenant or its agents. This indemnity is
intended to indemnify Tenant and its agents against the
consequences of their own negligence or fault as provided above
when Tenant or its agents are jointly, comparatively,
contributively, or concurrently negligent with Landlord. The
indemnities set forth in this Section 11 .(d) shall survive
termination or expiration of this Lease and shall not terminate
or be waived, diminished or affected in any manner by any
abatement or apportionment of Rent under any provision of this
Lease. If any proceeding is filed for which indemnity is
required hereunder, the indemnifying party agrees, upon request
therefor, to defend the indemnified party in such proceeding at
its sole cost utilizing counsel satisfactory to the indemnified
party.
12. Subordination: Attornment Notice to Landlord's Mortgagee
(a) Subordination. This Lease shall be
subordinate to any deed of trust, mortgage, or other security
instrument (each, a Mortgage or any ground lease, master lease,
or primary lease (each, a "Primary Lease"), that now or
hereafter covers all or any part of the Premises (the mortgagee
under any such Mortgage or the lessor under any such Primary
Lease is referred to herein as a "Landlord's Mortgagee Landlord
shall use reasonable efforts to obtain a subordination,
non-disturbance and attomment agreement from the current
Landlord's Mortgagee, in the form of Exhibit J hereto or
another form reasonably acceptable to Tenant and Landlord's
Mortgagee, within 30 days from the date hereof; however,
Landlord's failure to deliver such agreement shall not
constitute a default by Landlord hereunder nor affect the
subordination of the Lease as provided in this Section; and
further provided that any costs associated with obtaining such
subordination, non-disturbance and attomment agreement shall be
paid by Tenant within 15 days after ▇▇▇▇▇▇▇▇'s written request
therefor. Any Landlord's Mortgagee may elect, at any time,
unilaterally, to make this Lease superior to its Mortgage,
Primary Lease, or other interest in the Premises by so
notifying Tenant in writing. The provisions of this Section
shall be self-operative and no further instrument of
subordination shall be required; however, in confirmation of
such subordination, Tenant shall execute and return to Landlord
(or such other party designated by Landlord) within ten days
after written request therefor such documentation, in
recordable form if required, as a Landlord's Mortgagee may
reasonably request to evidence the subordination of this Lease
to such Landlord's Mortgagee's Mortgage or Primary Lease
(including a
subordination, non-disturbance and attornment agreement) or, if
the Landlord's Mortgagee so elects, the subordination of such
Landlord's Mortgagee's Mortgage or Primary Lease to this Lease.
(b) Attornment. Tenant shall attorn to any
party succeeding to Landlord's interest in the Premises,
whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of lease, or otherwise, upon such
party's request, and shall execute such agreements confirming
such attornment as such party may reasonably request.
(c) Notice to ▇▇▇▇▇▇▇▇'s Mortgagee Tenant
shall not seek to enforce any remedy it may have for any
default on the part of Landlord without first giving written
notice by certified mail, return receipt requested, specifying
the default in reasonable detail, to any Landlord's Mortgagee
whose address has been given to Tenant, and affording such
Landlord's Mortgagee a reasonable opportunity to perform
Landlord's obligations hereunder.
(d) Landlord's Mortgagee's Protection
Provisions. If Landlord's Mortgagee shall succeed to the
interest of Landlord under this Lease, Landlord's Mortgagee
shall not be: (1) liable for any act or omission of any prior
lessor (including Landlord); (2) bound by any rent or
additional rent or advance rent which Tenant might have paid
for more than the current month to any prior lessor (including
Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment; (3) bound by any security
or advance rental deposit made by Tenant which is not delivered
or paid over to Landlord's Mortgagee and with respect to which
Tenant shall look solely to Landlord for refund or
reimbursement; (4) bound by any termination, amendment or
modification of this Lease made without Landlord's Mortgagee's
consent and written approval, except for those terminations,
amendments and modifications permitted to be made by Landlord
without Landlord's Mortgagee's consent pursuant to the terms of
the loan documents between Landlord and Landlord's Mortgagee;
(5) subject to the defenses which Tenant might have against any
prior lessor (including Landlord), and (6) subject to the
offsets which Tenant might have against any prior lessor
(including Landlord) except for those offset rights which (A)
are expressly provided in this Lease, (B) relate to periods of
time following the acquisition of the Building by Landlord's
Mortgagee, and (C) Tenant has provided written notice to
Landlord's Mortgagee and provided Landlord's Mortgagee a
reasonable opportunity to cure the event giving rise to such
offset event. Landlord's Mortgagee shall have no liability or
responsibility under or pursuant to the terms of this Lease or
otherwise after it ceases to own an interest in the Building.
Nothing in this Lease shall be construed to require Landlord's
Mortgagee to see to the application of the proceeds of any
loan, and Tenant's agreements set forth herein shall not be
impaired on account of any modification of the documents
evidencing and securing any loan.
13. Rules and Regulations Tenant shall comply with the
rules and regulations of the Building which are attached hereto
as Exhibit C. Landlord may, from time to time, change such
rules and regulations for the safety, care, or cleanliness of
the Building and related facilities, provided that such changes
are applicable to all tenants of the Building, will not
unreasonably interfere with ▇▇▇▇▇▇'s use of the Premises and
are enforced by Landlord in a non-discriminatory manner. Tenant
shall be responsible for the compliance with such rules and
regulations by each Tenant Party.
14. Condemnation.
------------
(a) Total Taking. If the entire Building or Premises are taken by right of
eminent domain or conveyed in lieu thereof (a "Taking"), ------------ this Lease
shall terminate as of the date of the Taking.
subordination, non-disturbance and attomment agreement) or, if
the Landlord's Mortgagee so elects, the subordination of such
Landlord's Mortgagee's Mortgage or Primary Lease to this Lease.
(b) Attornment. Tenant shall attorn to any
party succeeding to Landlord's interest in the Premises,
whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of lease, or otherwise, upon such
party's request, and shall execute such agreements confirming
such attornment as such party may reasonably request.
(c) Notice to ▇▇▇▇▇▇▇▇'s Mortgagee Tenant
shall not seek to enforce any remedy it may have for any
default on the part of Landlord without first giving written
notice by certified mail, return receipt requested, specifying
the default in reasonable detail, to any Landlord's Mortgagee
whose address has been given to Tenant, and affording such
Landlord's Mortgagee a reasonable opportunity to perform
Landlord's obligations hereunder.
(d) Landlord's Mortgagee's Protection
Provisions. If Landlord's Mortgagee shall succeed to the
interest of Landlord under this Lease, Landlord's Mortgagee
shall not be: (1) liable for any act or omission of any prior
lessor (including Landlord); (2) bound by any rent or
additional rent or advance rent which Tenant might have paid
for more than the current month to any prior lessor (including
Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment; (3) bound by any security
or advance rental deposit made by Tenant which is not delivered
or paid over to Landlord's Mortgagee and with respect to which
Tenant shall look solely to Landlord for refund or
reimbursement; (4) bound by any termination, amendment or
modification of this Lease made without Landlord's Mortgagee's
consent and written approval, except for those terminations,
amendments and modifications permitted to be made by Landlord
without Landlord's Mortgagee's consent pursuant to the terms of
the loan documents between Landlord and Landlord's Mortgagee;
(5) subject to the defenses which Tenant might have against any
prior lessor (including Landlord), and (6) subject to the
offsets which Tenant might have against any prior lessor
(including Landlord) except for those offset rights which (A)
are expressly provided in this Lease, (B) relate to periods of
time following the acquisition of the Building by Landlord's
Mortgagee, and (C) Tenant has provided written notice to
Landlord's Mortgagee and provided Landlord's Mortgagee a
reasonable opportunity to cure the event giving rise to such
offset event. Landlord's Mortgagee shall have no liability or
responsibility under or pursuant to the terms of this Lease or
otherwise after it ceases to own an interest in the Building.
Nothing in this Lease shall be construed to require Landlord's
Mortgagee to see to the application of the proceeds of any
loan, and Tenant's agreements set forth herein shall not be
impaired on account of any modification of the documents
evidencing and securing any loan.
13. Rules and Regulations Tenant shall comply with the
rules and regulations of the Building which are attached hereto
as Exhibit C. Landlord may, from time to time, change such
rules and regulations for the safety, care, or cleanliness of
the Building and related facilities, provided that such changes
are applicable to all tenants of the Building, will not
unreasonably interfere with ▇▇▇▇▇▇'s use of the Premises and
are enforced by Landlord in a non-discriminatory manner. Tenant
shall be responsible for the compliance with such rules and
regulations by each Tenant Party.
14. Condemnation.
------------
(a) Total Taking. If the entire Building or Premises are taken by right of
eminent domain or conveyed in lieu thereof (a "Taking"),
------------
this Lease shall terminate as of the date of the Taking.
(b) Partial TakinQ - Tenant's Rights. If any
part of the Building becomes subject to a Taking and such
Taking will prevent Tenant from conducting its business in the
Premises in a manner reasonably comparable to that conducted
immediately before such Taking for a period of more than 180
days, then Tenant may terminate this Lease as of the date of
such Taking by giving written notice to Landlord within 30 days
after the Taking, and Basic Rent and Additional Rent shall be
apportioned as of the date of such Taking. If Tenant does not
terminate this Lease, then Rent shall be abated on a reasonable
basis as to that portion of the Premises rendered untenantable
by the Taking.
(c) Partial Taking - Landlord's Rights. If any
material portion, but less than all, of the Building becomes
subject to a Taking, or if Landlord is required to pay any of
the proceeds arising from a Taking to a Landlord's Mortgagee,
then Landlord may terminate this Lease by delivering written
notice thereof to Tenant within 30 days after such Taking, and
Basic Rent and Additional Rent shall be apportioned as of the
date of such Taking. If Landlord does not so terminate this
Lease, then this Lease will continue, but if any portion of the
Premises has been taken, Rent shall ▇▇▇▇▇ as provided in the
last sentence of Section 14(b).
(d) Award. If any Taking occurs, then Landlord
shall receive the entire award or other compensation for the
Land, the Building, and other improvements taken; however,
Tenant may separately pursue a claim (to the extent it will not
reduce Landlord's award) against the condemnor for the value of
Tenant's personal property which ▇▇▇▇▇▇ is entitled to remove
under this Lease, moving costs, loss of business, and other
claims it may have.
15. Fire or Other Casualty.
----------------------
(a) Repair Estimate. If the Premises or the
Building are damaged by fire or other casualty (a "Casualty"),
Landlord shall, within 90 days after such Casualty, deliver to
Tenant a good faith estimate (the "Damage Notice") of the time
needed to repair the damage caused by such Casualty.
(b) Tenant's Rights. If a material portion of
the Premises is damaged by Casualty such that Tenant is
prevented from conducting its business in the Premises in a
maimer reasonably comparable to that conducted irmnediately
before such Casualty and Landlord estimates that the damage
caused thereby cannot be repaired within 210 days after the
Casualty (the "Repair Period"), then Tenant may terminate this
Lease by delivering written notice to Landlord of its election
to terminate within 30 days after the Damage Notice has been
delivered to Tenant.
(c) Landlord's Rights. If a Casualty damages
the Premises or a material portion of the Building and (1)
Landlord estimates that the damage to the Premises cannot be
repaired within the Repair Period, (2) the damage to the
Premises exceeds 50% of the replacement cost thereof (excluding
foundations and footings), as estimated by ▇▇▇▇▇▇▇▇, and such
damage occurs during the last two years of the Term, (3)
regardless of the extent of damage to the Premises, Landlord
makes a good faith determination that restoring the Building
would be uneconomical, or (4) Landlord is required to pay any
insurance proceeds arising out of the Casualty to a Landlord's
Mortgagee, then Landlord may terminate this Lease by giving
written notice of its election to terminate within 30 days
after the Damage Notice has been delivered to Tenant.
(d) Repair Obligation If neither party elects to terminate this Lease
following a Casualty, then Landlord shall, within a reasonable
time after such Casualty, begin to repair the Premises and shall
proceed with reasonable diligence to restore the Premises to
substantially the same condition as they existed immediately
before such Casualty; however, Landlord shall only be required to
reconstruct the Premises to the extent of any improvements
existing therein on the date of the damage that were installed by
Landlord as part of Landlord's Work (if any) described in
Exhibit D ("Landlord's Contribution"), and Landlord's
obligation to repair or restore the Premises shall be limited
to the extent of the insurance proceeds actually received by
Landlord for the Casualty in question. Tenant shall be
responsible for repairing or replacing its furniture,
equipment, fixtures, alterations and other improvements which
Landlord is not obligated to restore, and shall use the
proceeds of its insurance for such purpose. Tenant shall pay
the difference betweenthetotal cost ofreconstructingthe
Premises and Landlord's Contribution ("Tenant's Contribution").
Prior to Landlord's commencement of reconstruction, Tenant
shall place Landlord's estimate of ▇▇▇▇▇▇'s Contribution in
escrow with Landlord (or furnish Landlord other commercially
reasonable assurances of payment thereof).
(e) Abatement of Rent. If the Premises are
damaged by Casualty, Rent for the portion of the Premises
rendered untenantable by the damage shall be abated on a
reasonable basis from the date of damage until the completion
of Landlord's repairs (or until the date of termination of this
Lease by Landlord or Tenant as provided above, as the case may
be), unless a Tenant Party caused such damage, in which case,
Tenant shall continue to pay Rent without abatement.
16. Personal Property 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
taxes for which Tenant is liable are levied or assessed against
Landlord or Landlord's property and Landlord elects to pay the
same, or if the assessed value of Landlord's property is
increased by inclusion of such personal property, furniture or
fixtures and Landlord elects to pay the taxes based on such
increase, then Tenant shall pay to Landlord, within 30 days
following written request, the part of such taxes for which
Tenant is primarily liable hereunder; however, Landlord shall
not pay such amount if Tenant notifies Landlord that it will
contest the validity or amount of such taxes before Landlord
makes such payment, and thereafter diligently proceeds with
such contest in accordance with Law and if the non-payment
thereof does not pose a threat of loss or seizure of the
Building or interest of Landlord therein or impose any fee or
penalty against Landlord.
17. Events of Default. Each of the following occurrences shall be an "Event of
Default": --------- ------- -------- --------
(a) Payment Default. ▇▇▇▇▇▇'s failure to pay
Rent within five days after Landlord has delivered written
notice to Tenant that the same is due; however, an Event of
Default shall occur hereunder without any obligation of
Landlord to give any notice if Tenant fails to pay Rent when
due and, during the 12 month interval preceding such failure,
Landlord has given Tenant written notice of failure to pay Rent
on one or more occasions;
(b) Abandonment. Tenant (1) abandons or vacates the Premises or any substantial
portion thereof or ----------- (2) fails to continuously operate its business in
the Premises;
(c) Estoppel. Tenant fails to provide any
estoppel certificate after ▇▇▇▇▇▇▇▇'s written request
thereforpursuant to Section 25 (c) and such failure shall
continue for five days after ▇▇▇▇▇▇▇▇'s second written notice
thereof to Tenant;
(d) Other Defaults. Tenant's failure to perform, comply with, or observe any
other agreement or --------------- obligation of Tenant under this Lease and the
continuance of such failure for a period of more than 30 days after ▇▇▇▇▇▇▇▇ has
delivered to Tenant written notice thereof; and
(e) Insolvency. The filing of a petition by or against Tenant (the term "Tenant"
shall include, for the purpose of this Section 1.7. ---------- ------ (e), any
guarantor of Tenant's obligations hereunder) (I) in any
bankruptcy or other insolvency proceeding; (2) seeking any
relief under any state or federal debtor relief law; (3) for
the appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's interest
in this Lease; or (4) for the reorganization or modification of
Tenant's capital structure; however, if such a petition is
filed against Tenant, then such filing shall not be an Event of
Default unless Tenant fails to have the proceedings initiated
by such petition dismissed within 90 days after the filing
thereof.
18. Remedies. Upon any Event of Default, Landlord may, in addition to all other
rights and remedies afforded -------- Landlord hereunder or by law or equity,
take any one or more of the following actions:
(a) Termination of Lease. Terminate this Lease
by giving Tenant written notice thereof, in which event Tenant
shall pay to Landlord the sum of(l) all Rent accrued hereunder
through the date of termination, (2) all amounts due under
Section would have been required to pay for the remainder of
the Term discounted to present value at a per annum rate equal
to the "Prime Rate" as published on the date this Lease is
terminated by The Wall Street Journal, Southwest Edition, in
its listing of' `Money Rates" minus one percent, minus (B) the
then present fair rental value of the Premises for such period,
similarly discounted;
(b) Termination of Possession. Terminate
Tenant's right to possess the Premises without terminating this
Lease by giving written notice thereof to Tenant, in which
event Tenant shall pay to Landlord (1) all Rent and other
amounts accrued hereunder to the date of termination of
possession, (2) all amounts due from time to time under Section
19(a), and (3) all Rent and other net sums required hereunder
to be paid by Tenant during the remainder of the Term,
diminished by any net sums thereafter received by Landlord
through reletting the Premises during such period, after
deducting all costs incurred by Landlord in reletting the
Premises. Landlord shall use reasonable efforts to relet the
Premises on such terms as Landlord in its sole discretion may
determine (including a term different from the Term, rental
concessions, and alterations to, and improvement of, the
Premises); however, Landlord shall not be obligated to relet
the Premises before leasing other portions of the Building.
Landlord shall not be liable for, nor shall Tenant's
obligations hereunder be diminished because of, ▇▇▇▇▇▇▇▇'s
failure to relet the Premises or to collect rent due for such
reletting. Tenant shall not be entitled to the excess of any
consideration obtained by reletting over the Rent due
hereunder. Reentry by Landlord in the Premises shall not affect
▇▇▇▇▇▇'s obligations hereunder for the unexpired Term; rather,
Landlord may, from time to time, bring an action against Tenant
to collect amounts due by ▇▇▇▇▇▇, without the necessity of
Landlord's waiting until the expiration of the Term. Unless
Landlord delivers written notice to Tenant expressly stating
that it has elected to terminate this Lease, all actions taken
by Landlord to dispossess or exclude Tenant from the Premises
shall be deemed to be taken under this Section 18(b). If
Landlord elects to proceed under this Section 18(b), it may at
any time elect to terminate this Lease under Section 1 8(a); or
(c) Alteration of Locks. Additionally, with or
without notice, and to the extent permitted by Law, Landlord
may alter locks or other security devices at the Premises to
deprive Tenant of access thereto, and Landlord shall not be
required to provide a new key or right of access to Tenant.
19. Payment by Tenant: Non-Waiver Cumulative Remedies.
------- -------------------------------- --------
(a) Payment by ▇▇▇▇▇▇. Upon any Event of
Default, Tenant shall pay to Landlord all costs incurred by
Landlord (including court costs and reasonable attorneys' fees
and expenses) in (1) obtaining possession of the Premises, (2)
removing and storing Tenant's or any other occupant's property,
(3) repairing, restoring, altering, remodeling, or otherwise
putting the Premises into condition acceptable to a new tenant,
(4) if Tenant is dispossessed of the Premises and this Lease is
not terminated, reletting all or any part of the Premises
(including brokerage commissions, cost of tenant fmish work,
and other costs incidental to such reletting), (5) performing
Tenant's obligations which ▇▇▇▇▇▇ failed to perform, and (6)
enforcing, or advising Landlord of, its rights, remedies, and
recourses arising out of the Event of Default. To the full
extent permitted by law, Landlord and Tenant agree the federal
and state courts of the state in which the Premises are located
shall have exclusive jurisdiction over any matter relating to
or arising from this Lease and the parties' rights and
obligations under this Lease.
(b) No Waiver. ▇▇▇▇▇▇▇▇'s acceptance of Rent
following an Event of Default shall not waive Landlord's rights
regarding such Event of Default. No waiver by Landlord of any
violation or breach of any of the terms contained herein shall
waive Landlord's rights regarding any future violation of such
term. Landlord's acceptance of any partial payment of Rent
shall not waive Landlord's rights with regard to the remaining
portion of the Rent that is due, regardless of any endorsement
or other statement on any instrument delivered in payment of
Rent or any writing delivered in connection therewith;
accordingly, ▇▇▇▇▇▇▇▇'s acceptance of a partial payment of Rent
shall not constitute an accord and satisfaction of the full
amount of the Rent that is due.
(c) Cumulative Remedies. Any and all remedies
set forth in this Lease: (1) shall be in addition to any and
all other remedies Landlord may have at law or in equity, (2)
shall be cumulative, and (3) may be pursued successively or
concurrently as Landlord may elect. The exercise of any remedy
by Landlord shall not be deemed an election of remedies or
preclude Landlord from exercising any other remedies in the
future.
20. Landlord's Lien. In addition to any statutory
landlord's lien, now or hereafter enacted, Tenant grants to
Landlord, to secure performance of Tenant's obligations
hereunder, a security interest in all goods (including
equipment and inventory), fixtures, and other personal property
of Tenant situated on the Premises, and all proceeds thereof
(the "Collateral"), and the Collateral shall not be removed
from the Premises without the prior written consent of Landlord
(other than in Tenant's ordinary course of business) until all
obligations of Tenant have been fully performed. Upon the
occurrence of an Event of Default, Landlord may, in addition to
all other remedies, without notice or demand except as provided
below, exercise the rights afforded to a secured party under
the Uniform Commercial Code of the state in which the Premises
are located (the "UCC"). To the extent the UCC requires
Landlord to give to Tenant notice of any act or event and such
notice cannot be validly waived before a default occurs, then
five-days' prior written notice thereof shall be reasonable
notice of the act or event. Tenant grants to Landlord a power
of attorney to execute and file any financing statement or
other instrument necessary to perfect Landlord's security
interest under this Section 20, which power is coupled with an
interest and is irrevocable during the Term. Landlord may also
file a copy of this Lease as a financing statement to perfect
its security interest in the Collateral. Within ten days
following written request therefor, ▇▇▇▇▇▇ shall execute
fmancing statements to be filed of record to perfect Landlord's
security interest in the Collateral.
21. Surrender of Premises. No act by Landlord shall be
deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender of the Premises shall be valid
unless it is in writing and signed by Landlord. At the
expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located therein
in good repair and condition, free of Hazardous Materials
placed on the Premises during the Term, broom-clean, reasonable
wear and tear (and condemnation and Casualty damage not caused
by Tenant, as to which Sections 14 and 15 shall control)
excepted, and shall deliver to Landlord all keys to the
Premises. Provided that ▇▇▇▇▇▇ has performed all of its
obligations hereunder, Tenant may remove all unattached trade
fixtures, furniture, and personal property placed in the
Premises or elsewhere in the Building by Tenant (but Tenant may
not remove any such item which was paid for, in whole or in
part, by Landlord or any wiring or cabling unless Landlord
requires such removal). Additionally, at Landlord's option,
Tenant shall remove such alterations, additions, improvements,
trade fixtures, personal property, equipment, wiring, cabling,
and furniture as Landlord may request; however, Tenant shall
not be required to remove any addition or improvement to the
Premises if Landlord has specifically agreed in writing that
the improvement or addition in question need not be removed.
Tenant shall repair all damage caused by such removal. All
items not so removed shall, at Landlord's option, be deemed to
have been abandoned by Tenant and may be appropriated, sold,
stored, destroyed, or otherwise disposed of by Landlord without
notice to Tenant and without any obligation to account for such
items; any such disposition shall not be considered a strict
foreclosure or other exercise of Landlord's rights in respect
of the security interest granted under Section 20. The
provisions of this Section 21 shall survive the end of the
Term.
22. Holding Over, if Tenant fails to vacate the
Premises at the end of the Term, then Tenant shall be a tenant
at sufferance and, in addition to all other damages and
remedies to which Landlord may be entitled for such holding
over, (a) Tenant shall pay, in addition to the other Rent,
Basic Rent equal to the greater of (1) 150% of the Basic Rent
payable during the last month of the Term, or (2) 125% of the
prevailing rental rate in the Building for similar space, and
(b) Tenant shall otherwise continue to be subject to all of
Tenant's obligations under this Lease. The provisions of this
Section 22 shall not be deemed to limit or constitute a waiver
of any other rights or remedies of Landlord provided herein or
at law, If Tenant fails to surrender the Premises upon the
termination or expiration of this Lease, in addition to any
other liabilities to Landlord accruing therefrom, Tenant shall
protect, defend, indemnify and hold Landlord harmless from all
loss, costs (including reasonable attorneys' fees) and
liability resulting from such failure, including any claims
made by any succeeding tenant founded upon such failure to
surrender, and any lost profits to Landlord resulting
therefrom.
23. Certain Rights Reserved by Landlord. Provided that the exercise of such
rights does not unreasonably ---------------------------- --------
interfere with ▇▇▇▇▇▇'s occupancy of the Premises, Landlord shall have the
following rights:
(a) Building Operations To decorate and to
make inspections, repairs, alterations, additions, changes, or
improvements, whether structural or otherwise, in and about the
Building, or any part thereof; to enter upon the Premises
(after giving Tenant reasonable notice thereof, which may be
oral notice, except in cases of real or apparent emergency, in
which case no notice shall be required) 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; to change the name of the Building; and to change
the arrangement and location of entrances or passageways,
doors, and doorways, corridors, elevators, stairs, restrooms,
or other public parts of the Building;
(b) Security. To take such reasonable measures
as Landlord deems advisable for the security of the Building
and its occupants; evacuating the Building for cause, suspected
cause, or for drill purposes; temporarily denying access to the
Building; and closing the Building after normal business hours
and on Sundays and holidays, subject, however, to Tenant's
right to enter when the Building is closed after normal
business hours under such reasonable regulations as Landlord
may prescribe from time to time;
(c) Prospective Purchasers and Lenders. To enter the Premises at all reasonable
hours to show the ----------- --------------- -------
Premises to prospective purchasers or lenders; and
(d) Prosnective Tenants. At any time during
the last 12 months of the Term (or earlier if ▇▇▇▇▇▇ has
notified Landlord in writing that it does not desire to renew
the Term) or at any time following (f) Notices. All notices and
other communications given pursuant to this Lease shall be in
writing and shall be (1) mailed by first class, United States
Mail, postage prepaid, certified, with return receipt
requested, and addressed to the parties hereto at the address
specified in the Basic Lease Information, (2) hand delivered to
the intended address, (3) sent by a nationally recognized
overnight courier service, or (4) sent by facsimile
transmission during normal business hours followed by a
confirmatory letter sent in another manner permitted hereunder.
All notices shall be effective upon delivery to the address of
the addressee. The parties hereto may change their addresses by
giving notice thereof to the other in conformity with this
provision.
(g) Separability. If any clause or provision
of this Lease is illegal, invalid, or unenforceable under
present or future laws, then the remainder of this Lease shall
not be affected thereby and in lieu of such clause or
provision, there shall be added as a part of this Lease a
clause or provision as similar in terms to such illegal,
invalid, or unenforceable clause or provision as may be
possible and be legal, valid, and enforceable.
(h) Amendments: and Binding Effect. This Lease
may not be amended except by instrument in writing signed by
Landlord and ▇▇▇▇▇▇. No provision of this Lease shall be deemed
to have been waived by Landlord unless such waiver is in
writing signed by Landlord, and no custom or practice which may
evolve between the parties in the administration of the terms
hereof shall waive or diminish the right of Landlord to insist
upon the performance by ▇▇▇▇▇▇ in strict accordance with the
terms hereof. The terms and conditions contained in this Lease
shall inure to the benefit of and be binding upon the parties
hereto, and upon their respective successors in interest and
legal representatives, except as otherwise herein expressly
provided. This Lease is for the sole benefit of Landlord and
Tenant, and, other than Landlord's Mortgagee, no third party
shall be deemed a third party beneficiary hereof.
(i) quiet Enjoyment Provided Tenant has
performed all of its obligations hereunder, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term,
without hindrance from Landlord or any party claiming by,
through, or under Landlord, but not otherwise, subject to the
terms and conditions of this Lease.
(j) No Merger. There shall be no merger of the
leasehold estate hereby created with the fee estate in the
Premises or any part thereof if the same person acquires or
holds, directly or indirectly, this Lease or any interest in
this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
(k) No Offer. The submission of this Lease to
Tenant shall not be construed as an offer, and Tenant shall not
have any rights under this Lease unless Landlord executes a
copy of this Lease and delivers it to Tenant.
(1) Entire A2reement. This Lease constitutes
the entire agreement between Landlord and Tenant regarding the
subject matter hereof and supersedes all oral statements and
prior writings relating thereto. Except for those set forth in
this Lease, no representations, warranties, or agreements have
been made by Landlord or Tenant to the other with respect to
this Lease or the obligations of Landlord or Tenant in
connection therewith. The normal rule of construction that any
ambiguities be resolved against the drafting party shall not
apply to the interpretation of this Lease or any exhibits or
amendments hereto.
(m) Waiver of Jury Trial. To the maximum extent permitted by law, Landlord and
Tenant each waive right to trial by jury in any
--------- ----------
litigation arising out of or with respect to this Lease.
(n) Governing Law. This Lease shall be governed by and construed in accordance
with the laws of the --------- --- state in which the Premises are located.
(n) Recording. Tenant shall not record this Lease without the prior written
consent of Landlord, which consent
---------
(p) Joint and Several Liability. If Tenant is comprised of more
than one party, each such party shall be jointly and severally liable for
Tenant's obligations under this Lease. All unperformed obligations of Tenant at
the end of the Term shall survive.
(q) Financial Reports. Within 15 days after ▇▇▇▇▇▇▇▇'s request,
▇▇▇▇▇▇ will furnish Tenant's most recent audited financial statements (including
any notes to them) to Landlord, or, if no such audited statements have been
prepared, such other financial statements (and notes to them) as may have been
prepared by an independent certified public accountant or, failing those,
▇▇▇▇▇▇'s internally prepared financial statements. If Tenant is a publicly
traded corporation, Tenant may satisfy its obligations hereunder by providing to
Landlord ▇▇▇▇▇▇'s most recent annual and quarterly reports. Tenant will discuss
its financial statements with ▇▇▇▇▇▇▇▇ and, following the occurrence of an Event
of Default hereunder, will give Landlord access to Tenant's books and records in
order to enable Landlord to verify the financial statements. Landlord will not
disclose any aspect of ▇▇▇▇▇▇'s financial statements that Tenant designates to
Landlord as confidential except (1) to Landlord's Mortgagee or prospective
mortgagees or purchasers of the Building, (2) in litigation between Landlord and
Tenant, and (3) if required by court order. Tenant shall not be required to
deliver the financial statements required under this Section 25(q) more than
once in any 12-month period unless requested by Landlord's Mortgagee or a
prospective buyer or lender of the Building or an Event of Default occurs.
(r) Landlord's Fees. Whenever Tenant requests ▇▇▇▇▇▇▇▇ to take
any action not required of it hereunder or give any consent required or
permitted under this Lease, ▇▇▇▇▇▇ will reimburse Landlord for Landlord's
reasonable, out-of-pocket costs payable to third parties and incurred by
Landlord in reviewing the proposed action or consent, including reasonable
attorneys', engineers' or architects' fees, within 30 days after ▇▇▇▇▇▇▇▇'s
delivery to Tenant of a statement of such costs. Tenant will be obligated to
make such reimbursement without regard to whether Landlord consents to any such
proposed action.
(s) Telecommunications. Tenant and its telecommunications
companies, including local exchange telecommunications companies and alternative
access vendor services companies, shall have no right of access to and within
the Building, for the installation and operation of telecommunications systems,
including voice, video, data, Internet, and any other services provided over
wire, fiber optic, microwave, wireless, and any other transmission systems
("Telecommunications Services"), for part or all of Tenant's telecommunications
within the Building and from the Building to any other location without
Landlord's prior written consent. All providers of Telecommunications Services
shall be required to comply with the rules and regulations of the Building,
applicable Laws and Landlord's policies and practices for the Building. Tenant
acknowledges that Landlord shall not be required to provide or arrange for any
Telecommunications Services and that Landlord shall have no liability to any
Tenant Party in connection with the installation, operation or maintenance of
Telecommunications Services or any equipment or facilities relating thereto.
Tenant, at its cost and for its own account, shall be solely responsible for
obtaining all Telecommunications Services.
(t) Confidentiality. Tenant acknowledges that the terms and conditions of this
Lease are to remain confidential for Landlord's
---------------
benefit, and may not be disclosed by Tenant to anyone, by any manner or means,
directly or indirectly, without ▇▇▇▇▇▇▇▇'s prior
written consent. The consent by Landlord
to any disclosures shall not be deemed to be a waiver on the
part of Landlord of any prohibition against any future
disclosure.
(u) Authority. Tenant (if a corporation, partnership or other
business entity) hereby represents and warrants to Landlord that Tenant is a
duly formed and existing entity qualified to do business in the state in which
the Premises are located, that ▇▇▇▇▇▇ has full right and authority to execute
and deliver this Lease, and that each person signing on behalf of Tenant is
authorized to do so. Landlord hereby represents and warrants to Tenant that
Landlord is a duly formed and existing entity qualified to do business in the
state in which the Premises are located, that Landlord has full right and
authority to execute and deliver this Lease, and that each person signing on
behalf of Landlord is authorized to do so.
(v) Hazardous Materials. The term "Hazardous Materials" means
any substance, material, or waste which is now or hereafter classified or
considered to be hazardous, toxic, or dangerous under any Law relating to
pollution or the protection or regulation of human health, natural resources or
the environment, or poses or threatens to pose a hazard to the health or safety
of persons on the Premises or in the Building. Tenant shall not use, generate,
store, or dispose of, or permit the use, generation, storage or disposal of
Hazardous Materials on or about the Premises or the Building except in a manner
and quantity necessary for the ordinary performance of Tenant's business, and
then in compliance with all Laws. If Tenant breaches its obligations under this
Section 25(v), Landlord may immediately take any and all action reasonably
appropriate to remedy the same, including taking all appropriate action to clean
up or remediate any contamination resulting from Tenant's use, generation,
storage or disposal of Hazardous Materials. Tenant shall defend, indemnify, and
hold harmless Landlord and its representatives and agents from and against any
and all claims, demands, liabilities, causes of action, suits, judgments,
damages and expenses (including reasonable attorneys' fees and cost of clean up
and remediation) arising from Tenant's failure to comply with the provisions of
this Section 25(v). This indemnity provision shall survive termination or
expiration of this Lease.
(w) List of Exhibits. All exhibits and attachments attached hereto are
incorporated herein by this ---- -- -------- reference.
Exhibit A - Outline of Premises
Exhibit B - Description of the Land Exhibit C - Building Rules and Regulations
Exhibit D - Tenant Finish-Work Exhibit B - Form of Confirmation of Commencement
Date Letter Exhibit F - Form of Tenant Estoppel Certificate Exhibit G - Parking
Exhibit H - Renewal Option Exhibit I - Rent Abatement Provisions
Exhibit J - Form of Subordination, Non-Disturbance and Attomment Agreement
26. Other Provisions.
----------------
(a) Temporary Occupancy Licenses. Notwithstanding Section 10 of the Lease to the
contrary, Tenant may grant temporary occupancy licenses to companies and
individuals with whom Tenant conducts business with to occupy up to 10% of the
Premises (based upon the number of rentable square feet existing therein as of
the date hereof). Tenant shall remain primarily liable for all of the
obligations of the "Tenant" under the Lease and Tenant shall insure that all
such parties comply with all of the terms and conditions of the Lease. If such
parties unreasonably interfere with Landlord or other tenants of the Building,
as determined in Landlord's reasonable discretion, Landlord may at any time
terminate the right granted to Tenant under this Section 26(a) upon 10 days
prior written notice thereof.
OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE
PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE
RENT, WITHOUT ABATEMENT, DEMAND, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH
BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
Dated as of the date first above written
its general partner
vice
INSTITUTUIONAL EQUITY HOLDINGS, INC.,
a Nevada corporation
BEING a tract or parcel of land situated in the City of Dallas, Dallas County,
Texas; and being part of Block 5185 of the City of Dallas and being that same
tract of land conveyed to Trailwood Land Company dated December 21, 1972; and
being more particularly described as follows:
BEGINNING at an iron rod for corner at the intersection of the southwesterly
line of Twin Sixties Drive (60 feet wide) and the southeasterly line of North
Central Expressway (U. S. 75: 220 feet wide);
THENCE South 6601500 East along the southwest line of said Twin Sixties Drive
and along its projected line in all a distance of 730.84 feet to an iron rod for
corner in the northwesterly line of a 60 foot Texas Nebraska and Oklahoma R.R.
ROW.;
THENCE is a southwesterly direction along said Railroad R.O.W. and along a curve
to the right whose tangent bears South 41 25~34" West having a radius of 1115.92
feet, a central angle of 5 O4~56" and an arc length of 110.67 feet to an iron
rod and the end of said curve;
THENCE South 47(degree)06'30' West continuing along the northwesterly line of
said Railroad R.O.W. a distance of 12.80 feet to an iron rod for corner and the
beginning to a curve to the left;
THENCE conthuing in a southwesterly direction along the northwesterly line of
said R.R. R.O.W. and along said curve to the left whose tangent bears South
53(degree)25'53 West and having a radius of 2914.93 feet, a central angle of
1(degree)53'50 and an arc length of 96.53 feet to the end of said curve and an
iron rod for corner;
THENCE North 66(degree) 15'00" West a distance of 640.59 feet to an iron rod for
corner in the southeasterly line of said North Central Expressway;
THENCE North 23(degree)45' East along the southeasterly line of North Central
Expressway a distance of 200.00 feet to the POINT OF BEGINNING and containing
3.1697 acres, more or less.
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the
Premises, the Building, the parking garage associated
therewith, and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways,
and other similar areas shall not be obstructed by tenants or
used by any tenant for purposes other than ingress and egress
to and from their respective leased premises and for going from
one to another part of the Building.
2. Plumbing, fixtuzes and appliances shall be used only
for the purposes for which designed, and no sweepings, rubbish,
rags or other unsuitable material shall be thrown or deposited
therein. Damage resulting to any such fixtures or appliances
from misuse by a tenant or its agents, employees or invitees,
shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted
or affixed on or to any windows or doors or other part of the
Building without the prior written consent of Landlord. No
nails, hooks or screws (other than those which are necessary to
hang paintings, prints, pictures, or other similar items on the
Premises' interior walls) shall be driven or inserted in any
part of the Building except by Building maintenance personnel.
No curtains or other window treatments shall be placed between
the glass and the Building standard window treatments.
4. Landlord shall provide and maintain an alphabetical directory for all tenants
in the main lobby of the
Building.
5. Landlord shall provide all door locks in each
tenant's leased premises, at the cost of such tenant, and no
tenant shall place any additional door locks in its leased
premises without Landlord's prior written consent. Landlord
shall furnish to each tenant a reasonable number of keys to
such tenant's leased premises, at such tenant's cost, and no
tenant shall make a duplicate thereof.
6. Movement in or out of the Building of furniture or
office equipment, or dispatch or receipt by tenants of any
bulky material, merchandise or materials which require use of
elevators or stairways, or movement through the Building
entrances or lobby shall be conducted under ▇▇▇▇▇▇▇▇'s
supervision at such times and in such a maimer as Landlord may
reasonably require. Each tenant assumes all risks of and shall
be liable for all damage to articles moved and injury to
persons or public engaged or not engaged in such movement,
including equipment, property and personnel of Landlord if
damaged or injured as a result of acts in connection with
carrying out this service for such tenant.
7. Landlord may prescribe weight limitations and
determine the locations for safes and other heavy equipment or
items, which shall in all cases be placed in the Building so as
to distribute weight in a manner acceptable to Landlord which
may include the use of such supporting devices as Landlord may
require. ALL damages to the Building caused by the installation
or removal of any property of a tenant, or done by a tenant's
property while in the Building, shall be repaired at the
expense of such tenant.
8. Corridor doors, when not in use, shall be kept closed. Nothing shall be swept
or thrown into the corridors, halls, elevator shafts or stairways. No birds or
animals (other than seeing-eye dogs) shall be brought into or kept in, on or
about any tenant's leased premises. No portion of any tenant's leased premises
shall at any time be used or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in
keeping its leased premises neat and clean, Tenants shall not
employ any person forthe purpose of such cleaning other than
the Building's cleaning and maintenance personnel.
10. To ensure orderly operation of the Building, no ice, mineral or other water,
towels, newspapers, etc. shall be delivered to any leased area except by persons
approved by Landlord.
11. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
12. No machinery of any kind (other than normal office equipment) shall
be operated by any tenant on its leased area without Landlord's prior written
consent, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance (other than typical office supplies toner] used in
compliance with all Laws).
13. Landlord will not be responsible for lost or stolen personal
property, money or j ewehy from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
14. No vending or dispensing machines of any kind may be maintained in any
leased premises without the prior written permission of Landlord.
15. Tenant shall not conduct any activity on or about the Premises or Building
which will draw pickets, demonstrators, or the like.
16. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a "billboard" vehicle in the
parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant's
agents, employees, vendors and customers who do not operate or park their
vehicles as required shall subject the vehicle to being towed at the expense of
the owner or driver. Landlord may place a "boot" on the vehicle to immobilize it
and may levy a charge of $50.00 to remove the "boot." Tenant shall indemnify,
hold and save harmless Landlord of any liability arising from the towing or
booting of any vehicles belonging to a Tenant Party.
17. No tenant may enter into phone rooms, electrical rooms, mechanical
rooms, or other service areas of the Building unless accompanied by Landlord or
the Building manager.
TENANT FINISH-WORK: ALLOWANCE
(Landlord Performs the Work)
1. Acceptance of Premises. Except as set forth in this Exhibit, Tenant accepts
the Premises in their "AS-IS" ------------- -------- ----- condition on the date
that this Lease is entered into.
2. Space Plans.
(a) Preparation and Delivery. On or before August 5, 1999,
Landlord shall deliver to Tenant a space plan prepared by Business Interiors or
another design consultant selected by Landlord (the "Architect") depicting
improvements to be installed in the Premises (the "Space Plans").
(b) Approval Process. Tenant shall notify Landlord whether it
approves of the submitted Space Plans within three business days after
Landlord's submission thereof If Tenant disapproves of such Space Plans, then
Tenant shall notify Landlord thereof specifying in reasonable detail the reasons
for such disapproval, in which case Landlord shall, within three business days
after such notice, revise such Space Plans in accordance with Tenant's
objections and submit to Tenant for its review and approval. Tenant shall notify
Landlord in writing whether it approves of the resubmitted Space Plans within
one business day after its receipt thereof This process shall be repeated until
the Space Plans have been fmally approved by Tenant and Landlord. If Tenant
fails to notify Landlord that it disapproves of the initial Space Plans within
three business days (or, in the case of resubmitted Space Plans, within one
business day) after the submission thereof, then Tenant shall be deemed to have
approved the Space Plans in question.
3. Working Drawings.
------- --------
(a) Preparation and Delivery. On or before August 16, 1999,
▇▇▇▇▇▇▇▇ shall deliver final working drawings of all improvements to be
installed in the Premises and deliver the same to Tenant for its review and
approval (which approval shall not be unreasonably withheld, delayed or
conditioned). Such working drawings shall be prepared by Interprise, the Design
Group, or another design consultant selected by Landlord (whose fee shall be
included in the Total Construction Costs ).
(b) Approval Process. Tenant shall notify Landlord whether it
approves of the submitted working drawings within three
business days after ▇▇▇▇▇▇▇▇'s submission thereof If Tenant
disapproves of such working drawings, then Tenant shall notify
Landlord thereof specifying in reasonable detail the reasons
for such disapproval, in which case Landlord shall, within
three business days after such notice, revise such working
drawings in accordance with ▇▇▇▇▇▇'s objections and submit the
revised working drawings to Tenant for its review and approval.
Tenant shall notify Landlord in writing whether it approves of
the resubmitted working drawings within one business day after
its receipt thereof This process shall be repeated until the
working drawings have been finally approved by Landlord and
Tenant. If ▇▇▇▇▇▇ fails to notify Land]ord that it disapproves
of the initial working drawings within three business days (or,
in the case of resubmitted working drawings, within one
business day) after the submission thereof, then Tenant shall
be deemed to have approved the working drawings in question.
Any delay caused by ▇▇▇▇▇▇'s unreasonable withholding of its
consent or delay in giving its written approval as to such
working drawings shall constitute a Tenant Delay Day (defmed
below). If the working drawings are not fully approved (or
deemed approved) by both Landlord and Tenant by the tenth
business day after the delivery of the initial draft thereof to
Tenant, then each day after such time period that such working
drawings are not fully approved (or deemed approved) by both
Landlord and Tenant shall constitute a Tenant Delay Day.
(c) Landlord's Approval: Performance of Work. If any of Tenant's proposed
construction work will
-------------------------------------------
affect the Building's Structure or the Building's Systems, then the working
drawings pertaining thereto must be approved by the Building's engineer of
record. ▇▇▇▇▇▇▇▇'s approval of such working drawings shall not be unreasonably
withheld, provided that (1) they comply with all Laws, (2) the improvements
depicted thereon do not adversely affect (in the reasonable discretion of
Landlord) the Building's Structure or the Building's Systems (including the
Building's restrooms or mechanical rooms), the exterior appearance of the
Building, or the appearance of the Building's common areas or elevator lobby
areas, (3) such working drawings are sufficiently detailed to allow construction
of the improvements in a good and workmanlike manner, and (4) the improvements
depicted thereon conform to the rules and regulations promulgated from time to
time by Landlord for the construction of tenant improvements (a copy of which
has been delivered to Tenant). As used herein, "Working Drawijws" shall mean the
final working drawings approved by Landlord, as amended from time to time by any
approved changes thereto, and "Work" shall mean all improvements to be
constructed in accordance with and as indicated on the Working Drawings,
together with any work required by governmental authorities to be made to other
areas of the Building as a result of the improvements indicated by the Working
Drawings. ▇▇▇▇▇▇▇▇'s approval of the Working Drawings shall not be a
representation or warranty of Landlord that such drawings are adequate for any
use or comply with any Law, but shall merely be the consent of Landlord thereto.
Tenant shall, at ▇▇▇▇▇▇▇▇'s request, sign the Working Drawings to evidence its
review and approval thereof After the Working Drawings have been approved,
Landlord shall cause the Work to be performed in substantial accordance with the
Working Drawings.
4. Bidding of Work. Prior to commencing the Work, Landlord shall
competitively bid the Work to three contractors approved by Landlord. If the
estimated Total Construction Costs are expected to exceed the Construction
Allowance, Tenant shall be allowed to review the submitted bids from such
contractors to value engineer any of Tenant's requested alterations. In such
case, Tenant shall notify Landlord of any items in the Working Drawings that
Tenant desires to change within two business days after Landlord's submission
thereof to Tenant. If Tenant fails to notify Landlord of its election within
such two business day period, Tenant shall be deemed to have approved the bids.
Within five business days following ▇▇▇▇▇▇▇▇'s submission to Tenant of the
initial construction bids to Tenant under the foregoing provisions (if
applicable), Tenant shall have completed all of the following items: (a)
finalized with ▇▇▇▇▇▇▇▇'s representative and the proposed contractor, the
pricing of any requested revisions to the bids for the Work, and (b) approved in
writing any overage in the Total Construction Costs in excess of the
Construction Allowance, failing which each day after such five business day
period shall constitute a Tenant Delay Day.
5. Change Orders. Tenant may initiate changes in the Work. Each such
change must receive the prior written approval of Landlord, such approval not to
be unreasonably withheld or delayed; however, (a) if such requested change would
adversely affect (in the reasonable discretion of Landlord) (1) the Building's
Structure or the Building's Systems (including the Building's restrooms or
mechanical rooms), (2) the exterior appearance of the Building, or (3) the
appearance of the Building's common areas or elevator lobby areas, or (b) if any
such requested change might delay the Commencement Date, Landlord may withhold
its consent in its sole and absolute discretion. Tenant shall, upon completion
of the Work, furnish Landlord with an accurate architectural "as-built" plan of
the Work as constructed, which plan shall be incorporated into this Exhibit D by
this reference for all purposes. If Tenant requests any changes to the Work
described in Tenant's Space Plans or the Working Drawings, then such increased
costs and any additional design costs
incurred in connection therewith as the result of any such
change shall be added to the Total Construction Costs.
6. Definitions. As used herein, a "Tenant Delay Day"
shall mean each day of delay in the performance of the Work
that occurs (a) because of Tenant's failure to timely deliver
or approve any required documentation such as the Space Plans
or Working Drawings, (b) because of any change by Tenant to the
Space Plans or Working Drawings, (c) because of any
specification by Tenant of materials or installations in
addition to or other than Landlord's standard finish-out
materials, or (d) because a Tenant Party otherwise delays
completion of the Work. As used herein "Substantial
Completion," "Substantially Completed," and any derivations
thereof mean the Work in the Premises is substantially
completed (as reasonably determined by Landlord) in substantial
accordance with the Working Drawings. Substantial Completion
shall have occurred even though minor details of construction,
decoration, landscaping and mechanical adjustments remain to be
completed by Landlord.
7. Walk-Through: Punchlist. When ▇▇▇▇▇▇▇▇ considers the
Work in the Premises to be Substantially Completed, Landlord
will notify Tenant and within three business days thereafter,
▇▇▇▇▇▇▇▇'s representative and Tenant's representative shall
conduct a walk-through of the Premises and identify any
necessary touch-up work, repairs and minor completion items
that are necessary for final completion of the Work. Neither
Landlord's representative nor ▇▇▇▇▇▇'s representative shall
unreasonably withhold his or her agreement on punchlist items.
Landlord shall use reasonable efforts to cause the contractor
performing the Work to complete all punchlist items within 30
days after agreement thereon; however, Landlord shall not be
obligated to engage overtime labor in order to complete such
items.
8. Excess Costs. The entire cost of performing the Work
(including design of the Work and preparation of the Working
Drawings, costs of construction labor and materials, electrical
usage during construction, additional janitorial services,
general tenant signage, related taxes and insurance costs, and
the construction supervision fee referenced in Section 10 of
this Exhibit, all of which costs are herein collectively called
the "Total Construction Costs") in excess of the Construction
Allowance (hereinafter defined) shall be paid by Tenant. Upon
approval of the Working Drawings and selection of a contractor,
Tenant shall promptly (a) execute a work order agreement
prepared by Landlord which identifies such drawings and
itemizes the Total Construction Costs and sets forth the
Construction Allowance, and (b) pay to Landlord 50% of the
amount by which Total Construction Costs exceed the
Construction Allowance. Upon Substantial Completion of the Work
and before Tenant occupies the Premises to conduct business
therein, Tenant shall pay to Landlord an amount equal to the
Total Construction Costs (as adjusted for any approved changes
to the Work), less (1) the amount of the advance payment
already made by Tenant, and (2) the amount of the Construction
Allowance. In the event of default of payment of such excess
costs, Landlord (in addition to all other remedies) shall have
the same rights as for an Event of Default under the Lease.
9. Construction Allowance. Landlord shall provide to
Tenant a construction allowance not to exceed $14.00 per
rentable square foot in the Premises (the "Construction
Allowance") to be applied toward the Total Construction Costs,
as adjusted for any changes to the Work. The Construction
Allowance shall not be disbursed to Tenant in cash, but shall
be applied by Landlord to the payment of the Total Construction
Costs, if, as, and when the cost of the Work is actually
incurred and paid by ▇▇▇▇▇▇▇▇. The Construction Allowance must
be used within six months following the Commencement Date or
shall be deemed forfeited with no further obligation by
Landlord with respect thereto.
10. Construction Management. Landlord or its Affiliate or agent shall
supervise the Work, make disbursements required to be made to the contractor,
and act as a liaison between the contractor and Tenant and coordinate the
relationship between the Work, the Building and the Building's Systems. In
consideration for Landlord's construction supervision services, Tenant shall pay
to Landlord a construction supervision fee equal to three percent of the Total
11. Construction Renresentatives. ▇▇▇▇▇▇▇▇'s and ▇▇▇▇▇▇'s representatives for
coordination of construction and approval of change orders will be as follows,
provided that either party may change its representative upon written notice to
the other: -
▇▇▇▇▇ ▇▇▇▇ LaSalle
C/O ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone:
Telecopy:
Tenant's Renresentative:
-----------------------
Institutional Equity Holdings, Inc.
do ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone:
Telecopy:
12. Miscellaneous. To the extentnot inconsistent with this Exhibit, Section
S.(a) and Section 21 of this Lease shall govern -------------
the performance of the Work and Landlord's and Tenant's respective rights and
obligations regarding the improvements installed pursuant
thereto.
Tenant and coordinate the relationship between the Work, the Building and
the Building's Systems. In consideration for Landlord's construction
supervision services, Tenant shall pay to Landlord a construction
supervision fee equal to three percent of the Total Construction Costs.
11. Construction Renresentatives. Landlord's and Tenant's representatives for
coordination of construction and approval of change ----------------------------
orders will be as follows, provided that either party may change its
representative upon written notice to the other:
Institutional Equity Holdings, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Lease Agreement (the "Lease") dated August 18, 1999, between PremPlace
Limited Partnership, a Delaware limited partnership ("Landlord"), and
Institutional Equity Holdings, Inc., a Nevada corporation ("Tenant").
Capitalized terms used herein but not defined shall be given the meanings
assigned to them in the Lease.
Ladies and Gentlemen:
Landlord and Tenant agree as follows:
1. Condition of Premises. ▇▇▇▇▇▇ has accepted
possession of the Premises pursuant to the Lease. Any
improvements required by the tenns of the Lease to be made by
Landlord have been completed to the full and complete
satisfaction of Tenant in all respects except for the punchlist
items described on Exhibit A hereto (the "Punchlist Items"),
and except for such Punchlist Items, Landlord has fulfilled all
of its duties under the Lease with respect to such initial
tenant improvements. Furthermore, Tenant acknowledges that the
Premises are suitable for the Permitted Use.
2. Commencement Date, The Commencement Date of the Lease is
-----------------
3. Exniration Date. The Term is scheduled to expire on the last day of the month
of the Term, which date ---------- ---- 6. Binding Effect: Governing Law. Except
as modified hereby, the Lease shall remain in full effect and this -------
------------------ --- letter shall be binding upon Landlord and ▇▇▇▇▇▇ and
their respective successors and assigns. If any inconsistency exists or arises
between the terms of this letter and the terms of the Lease, the terms of this
letter shall prevail. This letter shall be governed by the laws of the state in
which the Premises are located.
Please indicate your agreement to the above matters by signing this
letter in the space indicated below and returning an executed original to us.
Agreed and accepted:
Sincerely,
▇▇▇▇▇ ▇▇▇▇ LASALLE
By:
Name:
Title:
INSTITUTIONAL EQUITY HOLDINGS, INC.,
a Nevada corporation
By :
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III,
4. Chief Executive Officer
FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned is the Tenant under the Lease (defined
below) between_______________________ a ____________________,
as Landlord, and the undersigned as Tenant, for the Premises on
the ___________ floor(s) of the office building located at
____________________, __________ and commonly known as
___________________________ and hereby certifies as follows:
1. The Lease consists of the original Lease Agreement
dated as of ___________, 199 between Tenant and Landlord
predecessor-in-interest] and the following amendments or
modifications thereto (if none, please state "none"):
The documents listed above are herein collectively referred to
as the "Lease" and represent the entire agreement between the
parties with respect to the Premises. All capitalized terms
used herein but not defined shall be given the meaning assigned
to them in the Lease.
2. The Lease is in full force and effect and has not been modified, supplemented
or amended in any way except as provided in Section 1 above.
3. The Term commenced on __________________, 199 and
the Term expires, excluding any renewal options, on
_____________________, 200, and Tenant has no option to
purchase all or any part of the Premises or the Building or,
except as expressly set forth in the Lease, any option to
terminate or cancel the Lease.
4. ▇▇▇▇▇▇ currently occupies the Premises described in
the Lease and Tenant has not transferred, assigned, or sublet
any portion of the Premises nor entered into any license or
concession agreements with respect thereto except as follows
(if none, please state "none"):
5. All monthly installments of Basic Rent, all
Additional Rent and all monthly installments of estimated
Additional Rent have been paid when due through _________. The
current monthly installment of Basic Rent is $
6. All conditions of the Lease to be performed by
Landlord necessary to the enforceability of the Lease have been
satisfied and Landlord is not in default thereunder. In
addition, Tenant has not delivered any notice to Landlord
regarding a default by Landlord thereunder.
7. As of the date hereof, there are no existing defenses or offsets, or, to the
undersigned's knowledge, claims or any basis for a claim, that the undersigned
has against Landlord and no event has
occurred and no condition exists, which, with the giving of
notice or the passage of time, or both, will constitute a
default under the Lease.
8. No rental has been paid more than 30 days in advance and no security
deposit has been delivered to Landlord except as provided in the Lease.
9. If Tenant is a corporation, partnership or other business entity,
each individual executing this Estoppel Certificate on behalf of Tenant hereby
represents and warrants that Tenant is a duly formed and existing entity
qualified to do business in the state in which the Premises are located and that
Tenant has full right and authority to execute and deliver this Estoppel
Certificate and that each person signing on behalf of Tenant is authorized to do
so.
10. There are no actions pending against Tenant under any bankruptcy or similar
laws of the United States or any state.
11. Other than in compliance with all applicable laws and incidental to
the ordinary course of the use of the Premises, the undersigned has not used or
stored any hazardous substances in the Premises.
12. All tenant improvement work to be performed by Landlord under the
Lease has been completed in accordance with the Lease and has been accepted by
the undersigned and all reimbursements and allowances due to the undersigned
under the Lease in connection with any tenant improvement work have been paid in
full.
Tenant acknowledges that this Estoppel Certificate may be delivered to
Landlord, Landlord's Mortgagee or to a prospective mortgagee or prospective
purchaser, and their respective successors and assigns, and acknowledges that
Landlord, ▇▇▇▇▇▇▇▇'s Mortgagee and/or such prospective mortgagee or prospective
purchaser will be relying upon the statements contained herein in disbursing
loan advances or making a new loan or acquiring the property of which the
Premises are a part and that receipt by it of this certificate is a condition of
disbursing loan advances or making such loan or acquiring such property.
Executed as of , 199.
----------------------------
TENANT:
a
By:
Name:.
Title:
PARKING
Tenant shall use two reserved designated parking spaces and 19 undesignated
parking spaces in the parking garage/area associated with the Building (the
"Parking Area during the initial Term subject to such terms, conditions and
regulations as are from time to time applicable to patrons of the Parking Area
at no additional cost to Tenant. Tenant may, by delivering written notice of its
election to do so, convert up to ten of the undesignated parking spaces in the
Parking Area to reserved parking spaces in the Parking Area during the initial
Term subject to such terms, conditions and regulations as are from time to time
applicable to patrons of the Parking Area at a rate equal to $50.00 per reserved
vehicular parldng space month (plus all applicable taxes). Subject to
availability, Tenant may, by delivering written notice of its election to do so,
convert additional undesignated parking spaces in the Parking Area to reserved
parking spaces in the Parking Area during the initial Term at a rate equal to
$50.00 per reserved vehicular parking space per month. If, for any reason,
▇▇▇▇▇▇▇▇ is unable to provide all or any portion of the parking spaces to which
▇▇▇▇▇▇ is entitled hereunder, then ▇▇▇▇▇▇'s obligation to pay for such spaces
shall be abated for so long as Tenant does not have the use thereof; this
abatement shall be in full settlement of all claims that Tenant might otherwise
have against Landlord because of Landlord's failure or inability to provide
Tenant with such parking spaces
RENEWAL OPTION
Provided no Event of Default exists and Tenant is
occupying the entire Premises at the time of such election,
Tenant may renew this Lease for one additional period of five
years, by delivering written notice of the exercise thereof to
Landlord not earlier than 12 months nor later than nine months
before the expiration of the Term. On or before the
commencement date of the extended Term, Landlord and Tenant
shall execute an amendment to this Lease extending the Term on
the same terms provided in this Lease, except as follows:
(a) Basic Rent shall be adjusted to $24.00
per rentable square foot in the Premises;
(b) Landlord shall provide a construction
allowance of $4.00 per rentable square foot in the
Premises to be applied toward tenant improvements, and
Landlord shall not provide to Tenant any other
allowances (e.g., moving allowance, construction
allowance, and the like) or other tenant inducements;
(c) Tenant shall have no further renewal
option unless expressly granted by ▇▇▇▇▇▇▇▇ in writing; and
(d) Tenant shall pay for the parking spaces
which it is entitled to use at the rates from time to
time charged to patrons of the Parking Area and/or any
other parking area associated with the Building during
the extended Term (plus all applicable taxes).
Tenant's rights under this Exhibit shall terminate
if(l) this Lease or Tenant's right to possession of the
Premises is terminated, (2) Tenant assigns any of its interest
in this Lease or sublets any portion of the Premises, (3)
Tenant fails to timely exercise its option under this Exhibit,
time being of the essence with respect to Tenant's exercise
thereof, or (4) Landlord determines, in its sole but reasonable
discretion, that Tenant's financial condition or
creditworthiness has materially deteriorated since the date of
this Lease Basic Rent shall be conditionally abated during the
first 60 days of the Term. Commencing with the 61st day of the
Term, Tenant shall make Basic Rent payments as otherwise
provided in the Lease. Notwithstanding such abatement of Basic
Rent (a) all other sums due under the Lease, including
Additional Rent and Tenant's share of Taxes shall be payable as
provided in the Lease, and (b) any increases in Basic Rent set
forth in the Lease shall occur on the dates scheduled therefor.
The abatement ofEasic Rent provided for in this Exhibit is conditioned
upon ▇▇▇▇▇▇'s full and timely performance of all of its obligations under the
Lease. If at any time during the Term an Event of Default by Tenant occurs, then
the abatement of Basic Rent provided for in this Exhibit shall immediately
become void, and Tenant shall promptly pay to Landlord, in addition to all other
amounts due to Landlord under this Lease, the full amount of all Basic Rent
herein abated.
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attomment
Agreement (this "AQreement"), is entered into as of August 18,
1999, by and between INSTITUTIONAL EQUITY HOLDINGS, INC., a
Nevada corporation ("Tenant"), having an office at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and
BANKERS TRUST COMPANY (successor-in-interest to Bankers Trust
Company of California, N.A. and together with its successors
and assigns, "Lender"), as Trustee under that certain Trust and
Servicing Agreement dated as of November 1, 1994, for ▇▇▇▇▇▇
Peabody Mortgage Acceptance Corp. I, Mortgage Pass-Through
Certificates, Series 1994-C3, by and through GMAC Commercial
Mortgage Corporation, its Master Servicer under said Pooling
and Servicing Agreement, having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNIESSETH:
▇▇▇▇▇▇ is now the owner and holder of a deed of trust
or mortgage (the "Mort~a~e"), covering, among other things, the
real property commonly known and described as Premier Place,
and further described on Exhibit A attached hereto and made a
part hereof for all purposes, and the building and improvements
thereon (collectively, the "Mort~a~ed Pronerty"), securing the
payment of a loan (the "Loan") made by Lender to Landlord; and
Tenant is the owner of the lessee's or tenant's
interest under that certain Lease Agreement dated August 18,
1999 (the "Lease"), by and between Tenant and PRIEMIPLACE
LIMITED PARTNERSHIP, a Delaware limited partnership
("Landlord"), as landlord, covering 7,059 square feet of
rentable area (the "Premises") in the improvements constituting
a part of the Mortgaged Property; and
▇▇▇▇▇▇ and Lender desire to enter into the following
agreements with respect to the priority of the Lease and
Mortgage; and
NOW, THEREFORE, for and in consideration of the
premises and mutual covenants hereinafter set forth, Lender and
Tenant hereby agree as follows:
1. Defined Terms. Capitalized terms used herein but
not defmed herein shall have the meanings given to such terms
------- -----
in the Lease.
2. Subordination. Tenant covenants and agrees with
Lender that, except as hereinafter set forth, all of Tenant's
rights, title and interest in and to the Mortgaged Property,
the Premises, the Lease and the leasehold estate created
thereunder are and shall be subject, subordinate and inferior
to the lien and security interests of the Mortgage and to any
and all increases, renewals, modifications, extensions and
substitutions thereof.
3. Non-disturbance. In the event of any foreclosure under the
Mortgage, or if conveyance or transfer of the Mortgaged
Property shall be made in lieu of foreclosure (any such
foreclosure or conveyance or transfer in lieu of foreclosure
being herein collectively referred to as "Foreclosure"), then
the Lease shall not be terminated as a result of such
Foreclosure, but rather shall continue in full force and effect
in accordance with the provisions thereof, and the rights of
Tenant under the Lease shall not be interfered with or
disturbed by any party owning the Mortgaged Properly or an
interest therein as a result of such Foreclosure, or by such
party's successors and assigns (any such party and its
successors and assigns being herein called "Such Owner");
provided, that Such Owner shall not be (a) liable for any act
or omission of, or subject to any rights or setoff, claims or
defenses otherwise assertable by Tenant against, any prior
owner of the Mortgaged Property (including, without limitation,
Landlord), (b) obligated to complete the construction of any
improvements under the Lease, (c) bound by any rents paid more
than one month in advance to any prior owner, (d) liable for
any security deposit not paid over to Such Owner by Landlord,
or (e) bound by any modification, amendment, extension or
cancellation of the Lease not consented to in writing by
▇▇▇▇▇▇; and further provided, that nothing herein shall negate
the right of Such Owner to exercise the rights and remedies,
including termination of the Lease, of Landlord under the Lease
upon the occurrence of an Event of Default by Tenant under the
Lease and in accordance therewith and as to any Event of
Default by Tenant under the Lease existing at the time of
Foreclosure, such Foreclosure shall not operate to waive or
▇▇▇▇▇ any action initiated by Landlord under the Lease to
terminate the same on account of such Event of Default.
4. Attorument. ▇▇▇▇▇▇ agrees that in the event of
Foreclosure, Tenant will attorn to Such Owner, and Tenant
affirms its obligations under the Lease to Such Owner and
agrees to pay all rentals and charges then due, or to become
due, under the Lease to Such Owner, all without change in the
terms or provisions of the Lease. Upon request by Such Owner or
Tenant, Such Owner and Tenant shall execute and deliver an
instrument or instruments confirming the non-disturbance and
attomment herein provided for. ▇▇▇▇▇▇ agrees that,
notwithstanding any contrary provisions of the Lease, the
liability of Such Owner and any successor or assign of Such
Owner shall be limited to his or its interest in the Mortgaged
Property, and no other assets of Such Owner other than his or
its interest in the Mortgaged Properly, shall be affected by
reason of any liability which Such Owner or his or its
successor in interest may have under the Lease.
5. Notices.
-------
(a) Tenant covenants and agrees with Lender
that Tenant shall send to Lender at the address set forth below
a copy of any notice of default, notice of intention to
terminate or notice of termination given by Tenant to Landlord
under the Lease, and, in the case of a notice of default,
Lender shall have the right to cure any such default on the
part of Landlord within the same period granted to Landlord
under the Lease. Tenant agrees to accept any such cure by
▇▇▇▇▇▇ to the same extent as if such cure had been tendered or
performed by Landlord.
(b) All notices, demands, requests, consents
and approvals which may or are required to be given by either
party to the owner under this Agreement shall be in writing and
shall be deemed given, delivered and received either (1) when
hand delivered (including by a recognized delivery service
providing a receipt therefor) or when received pursuant to any
delivery by telex, telefax, telecopier, telegram or overnight
mail service, or (2) the next business day following the date
deposited in the United States mail, certified or registered
mail, postage prepaid, addressed in either case as follows:
If to Lender: Bankers Trust Company
c/o GMAC Commercial Mortgage Corporation ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice President - Servicing Administration
If to Tenant: Prior to the Term Commencement Date:
-----------------------------------
Institutional Equity Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇, III
Telephone: _________________________ Telecopy: __________________________
After the Term Commencement Date:
----- --------------------- ----
Institutional Equity Holdings, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇, Ill
Telephone: ____________________________ Telecopy: ___________________________
Each party may designate such other parties or addresses to which such notices
may be sent by providing notice of the same in writing to the other party,
effective 15 days from the date of such party or address change notice is given
in accordance with this paragraph.
6. Payment of Rents. If the Lender notifies the Tenant of a default
under the Mortgage and demand is made that Tenant pay its rent and all other
sums due under the Lease to Lender, Tenant shall honor such demand and pay its
rent and all other sums due under the Lease directly to Lender or such other
person as it is directed pursuant to such notice. In connection therewith, the
Landlord, by its execution of this Agreement hereby acknowledges and agrees that
in the event of a default under the Mortgage, the Tenant may pay all rents and
all of the sums due under the Lease directly to the Lender or such other person
upon such notice from the Lender that the Landlord is in default. If the Tenant
shall make payments to the Lender or such other person following receipt of
notice that the Landlord is in default, the Landlord hereby waives any claims
against the Tenant for the amount of such payments made by the Tenant to the
Lender or such other person.
7. Landlord's Consent. ▇▇▇▇▇▇▇▇ is joining herein solely for the
purpose of consenting hereto and agreeing that Tenant may rely upon any and all
notices from Lender or Such Owner relating to the rights of ▇▇▇▇▇▇ or Such Owner
hereunder or under the Mortgage or any related assignment of leases in favor of
▇▇▇▇▇▇.
8. Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns. Upon request by Such Owner or Tenant, Such Owner and Tenant shall
execute and deliver an instrument or instruments further confirming the
nondisturbance and attornment provided for in this Agreement.
9. Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the state
--------- ---
in which the Mortgaged Property is located.
IN WITNESS WHEREOF, the parties day and year firm above written.
TENANT:
hereto have caused this Agreement to be duly executed the
INSTITUTIONAL EQUITY HOLDINGS, INC.,
a Nevada corporation
By:
Name:
Title:
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
BANKERS TRUST COMPANY, as Trustee
By: GMAC COMMERCIAL MORTGAGE CORP., as
Master Servicer
By:.
Name:
Title:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: KPAC 1994 - C3 (QRP)
The foregoing Paragraph 7 thereof.
LANDLORD:
Agreement is hereby consented and agreed to by the undersigned as set forth in
PREMPLACE LIMITED PARTNERSHIP
By: New Premplace Corp., its general partner
By:
Name:
Title:
COMMONWEALTH OF PENNSYLVANIA ss.
ss.
COUNTY OF ▇▇▇▇▇▇▇▇▇▇ ▇▇.
Notary Public in and for the State of. My Commission Expires:
This instrument was acknowledged before me on ______________, 1999, by
_____________________ ___________ Vice President of GMAC Commercial Mortgage
Corporation, a California corporation, in its capacity as Master Servicer for
________________________, on behalf of said corporation.
Notary Public in and for the
Commonwealth of Pennsylvania
My Commission Expires:
March 3. 2000
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Institutional Equity Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Suite 1480
Dallas, Texas 75206
Dear ▇▇▇▇▇▇▇:
Enclosed please find one (1) copy of the final Tenant Improvement Tracking Sheet
for the Iiistitutional Equity project that itemizes the cost for Construction,
Space Plans, Engineering, and Management Fees. As shown, the remaining balance
is $17,145.60.
Upon review and approval please forward a check to BT-PREMIPLACE at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ by March 10 2000.
In addition, I have not received the Acceptance of Premises or the Estoppel
Certificate that was delivered to your office in January. Please forward this
pertinent information with the construction check to may attention for the
Landlord file. After both Exhibits have been fully executed 1 will return one to
you for your records.
Should you have any questions please contact me at ▇▇▇-▇▇▇-▇▇▇▇.
Very trul yours,
▇▇▇▇ ▇▇▇▇▇▇
Assistant General Manager
Leasing and Management
▇▇▇▇▇ ▇▇▇▇ LaSalle Americas, Inc.
[GRAPHIC OMITTED][GRAPHIC OMITTED]
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ARCHON GROUP, L.P.
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ITenant Improvements - Payment Requests Tracking Sheet
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Portfolio: ARCHON GROUP, L.P. Tenant Name: INSTITUTIONAL EQUITY
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Asset Number: Suite Number: 1480
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Property Name: PREMIER PLACE Request Date: 03-Mar-DO
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Property Manager: ▇▇▇▇ ▇▇▇▇▇▇ General ▇▇▇▇▇▇▇ & Associates
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Asset Manager:
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CommentsCheck Request Attached? YES
1.1. ALLOWANCE 7,509 rsf x $14.00=
Invoice Copies Attached? YES $ 105,126.OO
▇▇▇▇ ▇▇▇▇▇▇▇ Attached? NO
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W-9 Attached? NO (Old Vendor)
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Description Invoice Amount Tenant Balance Remaining
Overage
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$ 105,126.00
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Interprise 40443 09/03/$9 75.00 $ 105,051,00
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Interprise 41391 11/03/$9 5,729.76 $ 99,321.24
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Schmidt&Stacy 15903dt 11/0$/99 2,134.69 $ 97,156.55
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Interprise 41699 11/29/$9 289.20 $ 96,897.35
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▇▇▇▇▇▇▇ 4188 11/29/$9 102,830.00 $ (5,932.65)
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▇▇▇▇▇▇▇ 5009 12/28/$9 1219.00 $ (7,151.65)
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▇▇▇▇▇▇▇ 5017 01/06/$000 11,561.00 $ (18,712.65)
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Interprise 42172 01/06$2000 1,260.66 $ (19,973.31)
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▇.▇. ▇▇▇▇▇ 43 01/18 $ 291.33 $ (20,264.64)
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Credit for abandoned cable $ $ (19,014.64)
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Change order - ▇▇▇▇▇▇▇ Add Bun Warmer $ 766.00 $ (19,780.64)
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Change order - ▇▇▇▇▇▇▇ Misc Electrical $ 337.00 $ $ (20,117.64)
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Management Fees $ 6,262.18 $ (26,379.82)
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Less Check Paid $ 9,234.22
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Balance amount Payable $ (17,145.60)
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