OFFICE LEASE AGREEMENT
BALI III PARK BUILDING
MISSION LIFE INSURANCE COMPANY
Company Name
WORLDPORT COMMUNICATIONS, INC.
Date of Lease
April 15, 1997
Initial Initial
ii
OFFICE LEASE AGREEMENT
INDEX
ARTICLE I FUNDAMENTAL LEASE PROVISIONS: DEFINITIONS..................1
1.1 Fundamental Lease Provisions................................1
1.2 Certain Definitions.........................................2
1.3 Other Definitions...........................................2
ARTICLE II MONETARY PROVISIONS.........................................2
2.1 Base Rental.................................................2
2.2 Tenant's Share of Certain Costs.............................2
2.3 Personal Property Taxes.....................................3
2.4 Taxes for Leasehold Improvements............................3
2.5 Late Payments...............................................3
2.6 Security Deposit............................................3
ARTICLE III PREMISES, COMMON AREA, SERVICE AREAS.......................4
3.1 Required Condition of Premises..............................4
3.2 Minor Variations in Area....................................4
3.3 Ceilings, Walls, Floors.....................................4
3.4 Common and Service Areas....................................4
3.5 Delay.......................................................4
ARTICLE IV USE.........................................................4
4.1 Permitted Use...............................................4
4.2 Rules.......................................................4
4.3 Additional Covenants of Tenant..............................5
4.4 Control of Buildings and Common Areas.......................5
4.5 Minimization of Disruption..................................5
ARTICLE V SERVICE AND UTILITIES.......................................5
5.1 Services by Landlord........................................5
5.2 Tenant's Obligations........................................5
5.3 Tenant's Additional Service Requirement.....................5
5.4 Interruption of Utility Service.............................6
ARTICLE VI REPAIRS AND MAINTENANCE.....................................6
6.1 Landlord's Repair Obligations...............................7
6.2 Tenant's Obligations........................................7
6.3 Rights of Landlord..........................................7
6.4 Condition on Surrender......................................7
6.5 Alterations by Tenant.......................................7
6.6 Payment of Costs: Mechanic's Liens.........................8
ARTICLE VII LANDLORD'S RIGHT OF ENTRY...................................8
7.1 Entry.......................................................8
7.2 "For Rent" Signs............................................8
ARTICLE VIII INSURANCE, FIRE AND CASUALTY DAMAGE.........................8
8.1 Insurance on Building.......................................8
8.2 Casualty Covered by Insurance...............................8
8.3 Casualties Not Covered by Landlord's Insurance..............8
8.4 Tenant's Property Insurance.................................8
8.5 Mortgagee Requirements......................................9
8.6 Termination of Lease........................................9
8.7 Waiver of Subjugation.......................................9
Initial Initial
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ARTICLE IX INDEMNITY AND PUBLIC LIABILITY INSURANCE 9
9.1 Indemnity...................................................9
9.2 Liability Insurance.........................................9
9.3 Tenant's Failure to Maintain Insurance......................9
ARTICLE X CONDEMNATION 9
10.1 Total or Substantial Condemnation...........................9
10.2 Partial Condemnation........................................9
10.3 Disposition of Awards.......................................9
ARTICLE XI ASSIGNMENT, TRANSFER AND SUBLEASING BY TENANT 10
11.1 Landlord's Consent Required................................10
11.2 Transfer of Voting Interest................................10
11.3 No Release.................................................10
11.4 No Mortgage................................................10
11.5 Transfer of Landlord's Interest............................10
11.6 Bankruptcy.................................................10
ARTICLE XII HOLDING OVER...............................................11
ARTICLE XIII DEFAULT BY TENANT: LANDLORD'S REMEDIES....................11
13.1 Events of Default..........................................11
13.2 Remedies of Landlord.......................................11
13.3 Tenant's Liability for Landlord's Damages..................12
ARTICLE XIV BANKRUPTCY OR INSOLVENCY OF TENANT.........................13
14.1 Liquidation................................................13
14.2 Reorganization.............................................13
14.3 Subsequent Liquidation or Petition.........................13
14.4 Assignment.................................................14
14.5 Reasonable Charges.........................................14
14.6 Consent....................................................14
14.7 Intent.....................................................14
ARTICLE XV LIEN FOR RENT..............................................14
ARTICLE XVI SUBORDINATION AND ATTORNMENT...............................15
ARTICLE XVII TENANT ESTOPPEL LETTER.....................................15
ARTICLE XVIII QUIET ENJOYMENT............................................15
ARTICLE XIX NO IMPLIED WAIVER..........................................15
ARTICLE XX NOTICES....................................................15
20.1 Payments Due Landlord......................................15
20.2 Notices....................................................16
20.3 Change in Addresses........................................16
ARTICLE XXI SUBSTITUTION OF SPACE......................................16
21.1 Substitution Space.........................................16
21.2 Maximum Base Rental........................................16
21.3 Condition of Premises......................................16
21.4 Commencement of Rent.......................................16
21.5 Reimbursement of Expenses..................................16
ARTICLE XXII MISCELLANEOUS..............................................16
22.1 Attorney's Fees............................................16
22.2 Broker's Commission........................................16
22.3 Force Majeure..............................................16
22.4 Use of Language............................................16
22.5 Captions...................................................16
22.6 Successors.................................................17
22.7 Sublease...................................................17
22.8 Severability...............................................17
22.9 Charges for Services.......................................17
22.10 Personal Liability.........................................17
22.11 Damage From Certain Causes.................................17
22.12 Notice and Cure to Landlord and Mortgagee..................17
22.13 Governing Law..............................................17
Initial Initial
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22.14 No Reduction of Rental.....................................17
22.15 No Partnership.............................................17
22.16 No Oral Changes............................................18
22.17 Entirety: No Representations and Warranties...............18
22.18 Attachments................................................18
EXHIBIT "A" - Floor Plan of Premises
"B" - Legal Description of the Land
"C" - Operating Cost Computation
"D" - Rules
"E" - Guaranty - Purposely Omitted
"F" - Financing Statements - Purposely Omitted
"G" - Janitorial Services - Used for General Standarad
"H" - Sprecial Provisions
RIDER 101 _ - Work Letter
201 _ - Parking Agreement
301 _ - Option to Extend
Initial Initial
v
OFFICE LEASE AGREEMENT
STATE OF TEXAS ss.
COUNTY OF ▇▇▇▇▇▇ ▇▇.
THIS LEASE (herein so called, both in reference to this Agreement and
to the real estate transaction between Landlord and Tenant), made and entered
into by and between MISSION LIFE INSURANCE COMPANY , a Texas Corporation
("Landlord"), and Worldport Communications, Inc. , a Corporation (hereinafter
called "Tenant").
WITNESSETH:
Effective on the execution of this Lease (even if the Commencement Date
is a later date), Landlord hereby leases to Tenant, and Tenant hereby takes from
Landlord, the Demised Premises described in this Agreement, as depicted by the
floor plan attached as Exhibit "A", in the office building named as the
"Building" below, for the Term set forth in Section 1.1(m) and on the following
terms, conditions and covenants:
ARTICLE I
FUNDAMENTAL LEASE PROVISIONS: DEFINITIONS
The following list sets out the Fundamental Lease Provisions and
certain other definitions pertaining to the this Lease:
1.1 Fundamental Lease Provisions
(a) "Landlord": MISSION LIFE INSURANCE COMPANY
(b) Landlord's Mailing Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(c) "Tenant": WORLDPORT COMMUNICATIONS, INC.
(d) Tenant's Mailing Address:
(i) Before the Commence Date:
(ii) After the Commencement Date: ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ,▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(e) "Guarantor(s)" (if applicable, Guaranty attached as
Exhibit "E"):
(f) Guarantor's Street Address(es):
(g) "Building" (including street address ): Bali III Park
Building, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(h) "Premises": The portion of the Building to be
leased pursuant to this Lease, as shown on the
Attached Exhibit
"A", containing approximately 4,272
square feet of Rentable Area. The address of the
Premises is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ , ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇
(i) "Base Rental": SEE ATTACHED EXHIBIT "H" - SPECIAL
PROVISIONS
(j) "Security Deposit" $ 5,100.00
(k) "Anticipated Commencement Date": ▇▇▇▇▇ ▇, ▇▇▇▇
(▇) "Commencement Date": The date on which the Premises
are "ready for occupancy," as defined in Rider 101.
(m) "Term": The period of THREE ( 3 ) years beginning
with the first day after the Commencement Date (or
beginning on the Commencement Date if that date is
the first day of a calendar month).
(n) "Area of the Building": 45,500, the stipulated total
number of square feet of Rentable Area in the
Building.
(o) "Area of the Premises": 4,272, the stipulated number
of square feet of Rentable Area in the Premises.
(p) "Landlord's Operating Cost Contribution": $ 5.50 for
each square foot in the Area of the Building.
(q) "Broker": ▇▇▇▇▇ ▇▇▇▇▇
1.2 Certain Definitions
Initial Initial
1
(a) "Rentable Area": Area computed in accordance with the
current American National Standard adopted by the
Building Owners and Managers Association
International ("BOMA").
(b) "Tenant's Pro Rata Share": The Area of the Premises
divided by the Area of the Building.
(c) "Building Facilities": All equipment, machinery,
facilities and other personal property located in the
Building or on the Land (as hereinafter described)
and/or used or utilized solely in connection with the
operation and/or maintenance of the Building, or any
part thereof.
(d) "Land": The parcel of real property more particularly
described in Exhibit "B" attached hereto, on which
the Building is or will be constructed.
(e) "Project": The Land and the Building, parking related
thereto, all Building Facilities and all
appurtenances pertaining to the foregoing.
(f) "Common Area(s)": The portion of the Building which
is for the common use of all Tenants (and their
customers, clients, invitees, contractors), including
among other facilities, corridors, tunnels, elevator
foyers, rest rooms, mechanical rooms, janitorial
closets, electrical and telephone closets, vending
area, lobby area, drinking fountains, meeting rooms,
sidewalks, curbs, enclosed mall area, loading areas,
lighting facilities, delivery passages, decks and
other parking facilities, landscaping, and other
common rooms and common facilities.
(g) "Service Areas": "Service Areas" will refer to areas,
spaces, facilities and equipment serving the Building
(whether or not located within the Building) but to
which Tenant and other occupants of the Building will
not have access, including, but not limited to,
mechanical, telephone, electrical and similar rooms,
and air and water refrigeration equipment.
(h) "Lease Year": A period of Twelve consecutive calendar
months (during the Term beginning on January 1 and
ending on December 31, except that the first Lease
Year begins on the Commencement Date of this Lease
and ends on the next following December 31 and the
last Lease Year begins on January 1 of the calendar
year in which the Term ends and ends on the last day
of the Term.
(i) "Rules": The Rules for the Building attached as
Exhibit D" as modified from time-to-time in
accordance with Section 4.2.
1.3 Other Definitions Other terms defined in this Lease have the
meanings assigned to them elsewhere in this Lease.
ARTICLE II
MONETARY PROVISIONS
2.1 Base Rental. Tenant shall pay to Landlord, without offset or
deduction, Base Rental for the Premises in monthly
installments in advance. Rent begins to accrue hereunder on
the Commencement Date. One such monthly installment shall be
made on or before the date of execution of this Lease, and
alike monthly installment shall be made on or before the
Commencement Date and at the first day of each calendar month
during the Term, beginning with the second month. Rent for any
partial month shall be prorated on a per diem basis. Landlord
aquistion waive for Calendar 1997 escalation.
2.2 Tenant's Share of Certain Costs. In addition to other sums due
from Tenant under this Lease, Tenant shall pay to Landlord, in
the manner and at the times set forth below, Tenant's Pro Rata
Share of Operating Costs, including Energy Costs, for each
Lease Year with the exception of calendar year 1997 which
Landlord shall waive:
(a) Operating Costs. "Operating Costs" means all costs,
charges, and expense incurred by Landlord in connection with
owning, operating, maintaining, repairing, insuring and
managing the Building, and the Building's portion of the
Common Areas and Service Areas, computed on an accrual basis
and including, with limitation, costs, charges and expenses
incurred with respect to the items enumerated as "Operating
Cost Examples" in Paragraph A of Exhibit "C" to this Lease,
and including Energy Costs. Operating Costs do not include
those items enumerated as "Operating Cost Exclusions" in
Paragraph B of Exhibit "C" to this Lease. "Energy Costs" means
the cost incurred by Landlord for (i) any and all forms of
fuel or energy utilized in connection with the operation,
maintenance, and use of the Building, Common Areas and Service
Areas, (ii) sales, use, excise and other taxers assessed by
Governmental authorities on energy sources, and (iii) other
reasonable costs of providing energy to the Building, Common
Areas and Service Areas. If less than 95% of the Area of the
Building is occupied during a Lease Year, then for purposes of
determining the Operating Costs for that lease Year shall be
determined as if the Building had been occupied to that extent
for that Lease Year, taking into account the fixed or variable
nature of the particular costs and expenses.
(b) Tenant's Pro Rata Share of Operating Costs. Tenant's Pro
Rata Share of Operating Costs for any Lease Year is computed
by multiplying Tenant's Pro Rata Share times Excess Operating
Costs. "Excess Operating Costs" means the difference between
(i) the Operating Costs for as Lease Year minus (ii) the
product of (A) Landlord's Operating Cost Contribution
multiplied times (B) the area of the Building.
(c) Estimated Costs. Tenant's Pro Rata Share of Operating
Costs for the remainder of the first Lease Year and for each
subsequent Lease Year of the Term shall be estimated in good
faith by Landlord, and notice of the estimated amounts will be
given to Tenant as soon as reasonable before the Commencement
Date or the beginning of each Lease Year, as the case may be.
For each full Lease Year of the Term, Tenant shall pay to
Landlord each month, at the same time the monthly installment
of Base Rental is due, an amount equal to one-twelfth (1/12)
of the estimated Tenant's Pro Rata Share of Operating Costs
due for that year. If the first and last Lease Years are less
than full calendar years, then Tenant shall pay to Landlord,
each month for those Lease Years, at the same time the monthly
installment of Base Rental is due, an amount equal to the
amount of estimated Tenant's Pro Rata Share of Operating Costs
for the partial Lease Year divided by the number of full
calendar months of the partial year.
(d) Estimate Revisions. At any time and from time to time
during the Term, Landlord may, by giving notice to Tenant,
change the monthly amount then payable by Tenant for Tenant's
estimated Pro Rata Share of Operating Costs to reflect
Initial Initial
2
more accurately, in the reasonable judgment of Landlord,
Tenant's actual Pro Rata Share of Operating Costs for the then
current Lease Year. Tenant shall begin paying the revised
estimated amount together with the next monthly payment of
Base Rental due after receipt by Tenant of Landlord's notice.
(e) Annual Adjustments. Within 180 days of the end of the
Lease Year, or as soon as reasonably possible, Landlord will
prepare and deliver to Tenant a statement setting forth the
calculation of the actual Tenant's Pro Rata Share of Operating
Costs for the previous Lease Year. Within 30 days after
receipt of the statement of the actual Tenant's Pro Rate Share
of Operating Costs, Tenant shall pay to Landlord, or Landlord
will credit against the next rental or other payment or
payments due from Tenant, as the case may be, the difference
between the actual Tenant's Pro Rata Share of Operating Costs
for the preceding Lease Year and the estimated Tenant's Pro
Rata Share of Operating Costs paid by Tenant during that year.
(f) Final Partial Year. If the Term expires or this Lease
terminates before a final determination of the actual Tenant's
Pro Rata Share of Operating Costs, then the amount of
adjustment between the estimated Tenant's Pro Rata Share and
the actual Tenant's Pro Rata Share of Operating Costs payable
for the preceding Lease Year and/or the final partial Lease
Year of the term will be estimated by the Landlord based on
the best data available to Landlord at the time of the
estimate. Before the scheduled last day of the Term, or as
soon as possible after an earlier termination date, an
adjustment will be made between Landlord and Tenant. The
obligations set forth in the preceding sentence shall survive
expiration or earlier termination of this Lease.
2.3 Personal Property Taxes. Tenant shall pay, before delinquency,
all taxes, fees or charges, rates, duties and assessments that
are imposed, levied or assessed directly against Tenant, or
indirectly through Landlord, and payable during the Term
thereof, on Tenant's equipment, furniture, movable trade
fixtures and other personal property located in the Premises.
Tenant shall also pay, before delinquency, business and other
taxes, fees or charges, rates, duties and assessments imposed,
levied or assessed because of Tenant's occupancy of the
Premises or on the business or income of Tenant generated from
the Premises.
2.4 Taxes for Leasehold Improvements. If any authority levying
real and personal property taxes against the Building
includes, as a standard practice for determining the value of
the Building for tax purposes, a component for tenant
improvements or nonmovable trade fixtures of individual
tenants, Tenant shall pay to Landlord any portion of those
taxes which is attributable to the value of tenant
improvements or nonmovable trade fixtures in the Premises in
excess of the value (as of the first day of the Term or as of
the date of such levying, whichever date is used by the taxing
authority) of Building standard or existing improvements
(collectively, "above Standard Improvements"). On receipt of
any such tax statement, Landlord will compute Tenant's share
of taxes attributable to Above Standard Improvements, and
submit a statement to Tenant evidencing the method of
calculation. Tenant shall pay to Landlord together with the
next monthly installment of Base Rental due after the receipt
of Landlord's statement the entire amount due under this
Section 2.4. The method of calculation of the share of taxes
attributable to Above Standard Improvements will be subject to
adjustment by Landlord from time to time in order to reflect
the method currently utilized by taxing authorities to
calculate taxes for Above Standard Improvements. If Tenant is
assessed for taxes for Above Standard Improvements directly by
the taxing authorities, then Tenant shall pay them before
delinquency and deliver to Landlord copies of receipts for
payment of those taxes and assessments no later than ten (10)
days before the deadline for payment without imposition of
penalty.
2.5 Late Payments.
(a) Late Charge. If any amounts due under this Lease from
Tenant to Landlord are not received by Landlord by the tenth
(10th) calendar day after the date due, then the amount past
due is subject to a five percent 5%) late payment and service
charge, payable by Tenant immediately on demand by Landlord,
to be applied to defray Landlord's administrative and other
overhead expenses.
(b) Administrative Reimbursement. If Landlord performs
construction, maintenance, or repairs for Tenant under Section
6.3, 8.2, or 13.2 of this Lease, then Tenant shall reimburse
Landlord within five (5) days after receipt of an invoice from
Landlord for the cost of those items plus an amount equal to
fifteen percent (15%) of those costs ("Administrative
Reimbursement") to reimburse Landlord for administration and
overhead.
2.6 Security Deposit. On its execution of this Lease, Tenant shall
deposit with Landlord, in addition to the advance payment of
Base Rental described in Section 2.1, the Security Deposit.
The Security Deposit shall be held by Landlord without
interest as security for the performance of Tenant's
obligations under this Lease. The Security Deposit is not an
advance payment of rental or the full measure of liquidated
damages on a default by Tenant. On an Event of Default
(hereinafter defined), Landlord may, from time to time and
without prejudice to any other remedy provided herein or by
law, use the Security Deposit to cure the Event of Default.
After an application of the Security Deposit, Tenant shall pay
to Landlord, on demand, the amount necessary to replenish the
Security Deposit to its original amount. On the expiration or
termination of the Term, any remaining balance of the Security
Deposit shall be returned by Landlord to Tenant if Tenant is
not then in default.
Unless there has been a permitted assignment of this Lease
pursuant to Article XI, and in connection therewith Landlord
receives written notice of an assignment of the right to
receive the Security Deposit or the remaining balance thereof,
Landlord may return the Security Deposit to the original
Tenant, regardless of one or more assignments or Tenant's
interest in the Security Deposit. In this event, on the return
of the Security Deposit (or balance thereof) to the original
Tenant (or permitted assignee, as appropriate), Landlord has
no further liability with respect to the Security Deposit.
On a transfer of the Premises, this Lease or the Building,
Landlord may transfer the Security Deposit to the transferee,
after which Landlord is released from all liability for the
return of the Security Deposit, for which Tenant shall look
solely to the transferee.
ARTICLE III
PREMISES, COMMON AREAS, SERVICE AREAS
3.1 Required Condition of Premises. Except to the extent that
Landlord is obligated to construct improvements in the
Premises, and except for Landlord's agreement to complete or
correct construction items, as described in the second
paragraph of the Section 3.1, as provided on an exhibit
attached to this Agreement, the Premises are delivered to
Tenant and are being leased "AS IS" and "WITH ALL FAULTS," and
Landlord makes no representation or warranty of any kind,
expressed or implied, with respect to the
Initial Initial
3
condition of the Premises (including habitability, fitness or
suitability for particular purpose of the Premises, or that
the Building or the improvements to the Premises have been
constructed in a good and workmanlike manner). TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD HEREBY DISCLAIMS,
AND TENANT WAIVES THE BENEFIT OF, ANY AND ALL IMPLIED
WARRANTIES, INCLUDING IMPLIED WARRANTIES OF HABITABILITY,
FITNESS OR SUITABILITY FOR PURPOSE, OR THAT THE BUILDING OR
THE IMPROVEMENTS IN THE PREMISES HAVE BEEN CONSTRUCTED IN A
GOOD WORKMANLIKE MANNER. TENANT EXPRESSLY ACKNOWLEDGES THAT
LANDLORD DID NOT CONSTRUCT OR APPROVE THE QUALITY OF
CONSTRUCTION OF THE BUILDING.
The taking of possession of the Premises by Tenant
conclusively established that the Premises and the Building
were at that time in satisfactory order and condition except
for (i) minor matters of structural, mechanical, electrical,
and finish adjustment in the Premises (commonly referred to as
"punch list items") specified in reasonable detail on a list
delivered by Tenant to Landlord within fifteen (15) days after
the date on which Tenant takes possession of the Premises and
(ii) defects not discoverable on inspection and about which
Tenant notified Landlord within one (1) year after taking
possession of the Premises. Landlord neither makes nor offers
any other construction warranties of any kind or nature
whatsoever.
3.2 Minor Variations In Area. The Area of the Premises contained
Section 1.1(o) has been calculated in accordance with the
foregoing definitions and is agreed to be the Area of the
Premises regardless of minor variations resulting from
construction of the Building and/or tenant improvements.
3.3 Ceilings, Walls, Floors. Tenant acknowledges that pipes,
ducts, conduits, wires and equipment serving other parts of
the Building may be located above acoustical ceiling surfaces,
below floor surfaces or within walls in the Premises.
3.4 Common and Service Areas. Tenant is hereby granted a
non-exclusive right to use the Common Areas during the Term of
this Lease for their intended purposes, in common with others,
subject to the terms and conditions of this Lease, including,
without limitation, the Rules.
3.5 Delay. If the Premises are not ready for occupancy by Tenant
on the Anticipated Commencement Date, for any reason other
than a delay caused by Tenant, the obligations of Landlord and
Tenant shall nevertheless continue in full force and effect.
However, except as otherwise provided in Rider 101, the Term
of this Lease shall not begin and rent shall not begin to
accrue until the actual Commencement Date. The delay in
commencement of the Term and in the accrual of rent described
in the foregoing sentence constitutes full settlement of all
claims that Tenant might otherwise have by reason of the
Premises not being ready for occupancy on the Anticipated
Commencement Date.
If the Premises are not ready for occupancy by Tenant on the
Anticipated Commencement Date due to one or more delays caused
by Tenant, or anyone acting under or for the Tenant, or due to
any cause other than Landlord's fault, Landlord has no
liability and the obligations of Tenant under this Lease
(including, without limitation, the obligation to pay rent)
shall nevertheless begin as of the Commencement Date.
ARTICLE IV
USE
4.1 Permitted Use. The Premises shall be used and occupied only
for general office purposes, and not otherwise. The Premises
are being used by Tenant for commercial, business use and are
not residential property.
4.2 Rules. Tenant's use of the Premises and the Common Areas are
subject at all times during the Term to the Rules attached to
the Lease as Exhibit "D" and to any modifications of those
Rules and any additional Rules from time to time promulgated
by Landlord. Additional Rules will not become effective and a
part of this Lease until a copy of them has been delivered to
Tenant.
Landlord will use its best efforts to cause all tenants to
comply with the Rules however, the inability of Landlord to
cause another occupant of the Building to comply with the
Rules will neither excuse Tenant's obligation to comply with
the Rules or any other obligation of Tenant under this Lease
nor cause Landlord to be liable to Tenant for any damage
resulting to Tenant. Tenant shall cause Tenant's employees,
servants and agents to comply with the Rules.
4.3 Additional Covenants of Tenant.
(a) Laws, Statutes, Etc. Tenant shall, at Tenant's sole cost,
promptly comply with all laws, statutes, ordinances,
regulations, guidelines, restrictive covenants or requirements
now in force or hereafter enacted and with the requirements of
any governmental authority having jurisdiction over the
Building, board of fire underwriters, utility company serving
the Building or other similar body now or hereafter
constituted, relating to or affecting the condition, use or
occupancy of the Premises. The judgment of any court of
competent jurisdiction or the admission of Tenant in any
action against Tenant, whether Landlord is a party thereto or
not, that Tenant has violated any of the foregoing is
conclusive of that fact between Landlord and Tenant.
(b) Nuisance. Tenant shall not do or permit anything to be
done in or about the Premises which will in any way obstruct
or interfere with the operation of the Building or Common
Areas or with the rights of other tenants or occupants of the
Building or Common Areas or injure, disturb or annoy other
tenants or occupants of the Building or Common Areas.
(c) Building Reputation. Tenant shall not use or permit the
Premises to be used for any objectionable purpose or any
purpose which, in the reasonable opinion of the Landlord,
▇▇▇▇▇ or tends to harm the business or reputation of the
Landlord or Building or reflects unfavorably on the Building,
or any part of the building, or deceives or defrauds the
public.
(d) Fire Hazards. Tenant shall not cause, maintain or permit
anything to be done in the Premises nor keep anything in the
Premises which will, in the opinion of the Landlord, increase
the possibility of fire or other casualty or increase the then
existing premiums for or void the coverage of any insurance on
the Building or contents of the Building.
4.4 Control of Building and Common Areas. The Building and Common
Areas will be at all times under the exclusive control,
management and operation of Landlord. Landlord may from time
to time (i) alter or redecorate the Building (including the
Initial Initial
4
Common Areas or Service Areas) or construct additional
facilities adjoining or approximate to the Building; (ii)
close temporarily doors, entry ways, public spaces and
corridors and interrupt or suspend temporarily Building
services and facilities in order to perform any redecorating
or alteration or alteration in order to prevent the public
from acquiring prescriptive rights in the Common Areas; and
(iii) change the name of the Building.
4.5 Minimization of Disruption. Landlord will attempt not to
disrupt Tenant's operations in the Premises during the
exercise of Landlord's rights of Section 4.4 or 7.1, but is
not required to incur extra expenses in order to minimize the
disruption. Tenant hereby waives all claims for damages or
injuries or interference with Tenant's business, loss of
occupancy, or quiet enjoyment and any other loss resulting
from the exercise by Landlord of any right under Section 4.4
or 7.1. No exercise by Landlord of any right under Sections
4.4 or 7.1 constitutes actual or constructive eviction or
breach of any expressed or implied covenant for quiet
enjoyment.
ARTICLE V
SERVICES AND UTILITIES
5.1 Services by Landlord. So long as Tenant is not in default
under this Lease, and subject to the conditions and standards
contained in this Lease and to standards, limitations and
guidelines imposed by governmental authorities and utility
companies, Landlord will furnish or cause to be furnished,
while Tenant is occupying the Premises, the following services
and utilities:
(a) Water at the normal temperature of the supply of water to
the Building or lavatory and drinking purposes, through
fixtures installed by Landlord or by Tenant with Landlords
consent;
(b) Janitorial cleaning services to those portions of the
Premises used for office purposes, five (5) days per week
(except on holidays observed by the Building), in accordance
with the Specifications used in comparable properties to
obtain an acceptable condition.
(c) Heated and refrigerated air conditioning, at such
temperatures and in such quantities as Landlord determines are
reasonably necessary and stated as standard hours of operation
in "Exhibit "D" for the reasonably comfortable use and
occupancy of the Premises for general office purposes;
(d) Routine maintenance in the Common Areas;
(e) Electric current to the Premises for Building standard
office lighting and office machines that consume electric
current within the limits set forth in Sections 5.3(a)(i);
(f) Twenty-four (24) hour, non-exclusive, passenger elevator
service and, when scheduled through the Building management,
non-exclusive freight elevator service to the floors(s) on
which the Premises are located; and
(g) Replacement of Building standard light bulbs, and
fluorescent tubes in the Premises.
5.2 Tenant's Obligations. Tenant shall pay for, before
delinquency, all telephone charges and the cost or charge for
all other materials and services not expressly the obligation
of Landlord that are furnished to or used on, in or about the
Premises during the Term of this Lease.
5.3 Tenant's Additional Service Requirements.
(a) Additional Services Requiring Landlord's Consent. Except
as otherwise expressly provided elsewhere in this Lease
(including any exhibit attached to this Lease), Tenant shall
not, without Landlord's prior consent in writing, do the
following:
(i) Install or use special lighting beyond building
standard, or any equipment machinery, or device in
the Premises which requires a nominal voltage of more
than 120 volts, single phase, or which, in Landlords
reasonable judgment, exceeds the capacity of existing
feeders conductors, risers, or wiring in or to the
Premises or Building, or which requires amounts of
water in excess of that usually furnished or supplied
for use in office space or which will decrease the
amount or pressure of water or the amperage or
voltage of electricity that Landlord can furnish to
other occupants of the Building;
(ii) Install or use any heat or cold-generating
equipment, machinery, or device that affects the
temperature otherwise maintainable by the heat or air
conditioning systems of the Building;
(iii) Use portions of the Premises for special
purposes requiring greater or more difficult cleaning
work than office areas, such as, but without
limitation, kitchens, reproduction rooms, interior
glass partitions, and non-Building standard materials
or finishes; or
(iv) Accumulate refuse or rubbish (A) in excess of
that ordinarily accumulated in business office
occupancy, or (B) at times other than Building
standard cleaning times.
(b) Providing Additional Services. If, in the reasonable
opinion of Landlord, additional services to Tenant
are necessary, Landlord may:
(i) Require that Tenant cease the activity or remove
the item (or Landlord may refuse to permit the
activity or installation of the item), causing (or
which will cause) the need for the additional
service, if Landlord and Tenant are not able to agree
on a mutually satisfactory method for providing the
additional services, or in Landlord's reasonable
judgment, providing the additional service is not
operationally or economically feasible;
(ii) With respect to additional utility consumption,
install and maintain separate metering devices, or
cause periodic usage surveys to be prepared by an
engineer employed by Landlord for that purpose. Cost
Initial Initial
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of the additional utility consumption plus, if
Landlord installs and maintains separate meters,
the costs of the meters and of their installation,
maintenance and repair, or if Landlord orders usage
surveys, the cost of those surveys, is the obligation
of Tenant;
(iii) With respect to heat or cold-generating
equipment, furnish additional heat or air
conditioning to the Premises, or install
supplementary heating or air conditioning units in
the Premises of elsewhere in the Building, or modify
the existing heating or air conditioning system in
the Premises. The cost of additional heat or air
conditioning, supplementary units, or modifications
to the existing system is the obligation of Tenant;
(iv) With respect to lighting beyond Building
standard, purchase and replace, at Tenant's expense,
light bulbs and ballasts and/or fixtures; and/or
(v) With respect to additional cleaning work,
instruct Landlord's janitorial contractor to provide
the services, the cost of which is the obligation of
Tenant.
(c) After Hours Heat or Air Conditioning. Landlord shall, on
request and at Tenant's expense, provide after hours heat or
air conditioning. The cost of after hours heat or air
conditioning will be determined from time to time by Landlord
as calculated by an electrical engineer and, on request,
confirmed in writing to Tenant as Landlor's actual cost of
providing such service.
(d) Payment. Tenant shall pay to Landlord the cost of any
additional service and any other costs for which Tenant is
obligated under Section 5.3(b) or (c) within five (5) days
after receipt of an invoice from Landlord.
5.4 Interruption of Utility Service. Landlord will use its best
efforts to provide or cause to be provided the services
required of Landlord under this Lease. However, Landlord
reserves the right, without any liability to Tenant and
without affecting Tenant's covenants and obligations under
this Lease, to stop or interrupt or reduce any of the services
listed in Section 5.1 or to stop, interrupt or reduce any
other services required of Landlord under this Lease, whenever
and for so long as may be necessary, in Landlord's reasonable
judgment, by reason of (i) accidents or emergencies, (ii) the
making of repairs or changes that Landlord in good faith
considers necessary or which it is required or permitted by
this Lease or by law to make, (iii) difficulty in securing
proper supplies of fuel, water, electricity, labor or
supplies, (iv) the compliance by Landlord with governmental,
quasi-governmental or utility company energy conservation
measures, or (v) the exercise by Landlord of any right
contained Section 4.4. Landlord shall, on an interruption of a
utility service, use its best efforts it cause the service to
be resumed as soon as practicable. However, no interruption or
stoppage of any services shall be construed as an eviction of
Tenant nor will interruption or stoppage cause an abatement of
the rent payable under this Lease or in any manner relieve
Tenant from any of Tenant's obligations under this Lease.
Landlord is not liable for any interruption or stoppage of any
services or for any damage to persons or property resulting
from that stoppage. See Exhibit H, Special Provisions, Item 5,
Essential Services for exception.
ARTICLE VI
REPAIRS AND MAINTENANCE
6.1 Landlord's Repair Obligations. Landlord will, subject to the
casualty provisions of Article VIII, maintain the (i) Common
Areas and Service Areas, (ii) roof, foundation, exterior
windows and load-bearing items of the Building; (iii) exterior
(located outside the Premises) surfaces of walls; (iv)
plumbing, pipes and conduits located in the Common Areas or
Service Areas of the Building; and (v) the Building central
heating, Ventilation and air conditioning, electrical,
mechanical and plumbing systems. Landlord is not required to
make any repair in connection with or resulting from (1) any
alteration or modification to the Premises or to Building
equipment performed by, for or because of Tenant or to special
equipment or systems installed by, for or because of Tenant,
(2) the installation, use or operation of Tenant's property,
fixtures and equipment, (3) the moving of Tenant's property in
or out of the Building or in and about the Premises, (4)
Tenant's use or occupancy of the Premises in violation of
Article IV or in a manner not contemplated by the parties at
the time of execution of this Lease (e.g., subsequent
installation of special use rooms), (5) the acts or omissions
of Tenant and Tenant's employees, agents, invitees,
subtenants, licensees or contractors, or (6) fire or other
casualty, except as provided in Article VIII. Depending on the
nature of repairs undertaken by Landlord, the cost of the
repairs will be borne solely by Landlord or will be reimbursed
to Landlord either by a particular tenant or tenants or by all
tenants as an operating Cost.
6.2 Tenant's Obligations. Except for janitorial services provided
by Landlord and Landlord's obligations under Sections 3.1 and
6.1, Tenant, at Tenant's expense, shall maintain the Premises
in good order, condition and repair including, without
limitation, the interior surfaces of the windows, walls and
ceilings; floors; wall and floor coverings, window coverings;
doors; interior windows; and all switches, fixtures and
equipment in the premises. On receipt of reasonable notice
from Tenant, Landlord will perform, at the expense of Tenant,
all repairs and maintenance to plumbing, pipes and electrical
wiring located within walls, above ceiling surfaces and below
floor surfaces resulting from the use of the Premises by
Tenant. Tenant is not responsible for any plumbing, pipes and
electrical wiring, switches, fixtures and equipment located in
the Premises but serving another tenant or for portions of the
central heat, ventilation and air conditioning, electrical,
mechanical and plumbing systems of the Building which are
located in the Premises, except for (i) repairs resulting from
the acts of Tenant and Tenant's employees, agents, invitees,
subtenants, licensees or contractors, (ii) modifications made
to any of those systems by, for, or because of Tenant, and
(iii) special equipment installed by, for, or because of
Tenant.
6.3 Rights of Landlord. If Tenant fails, in Landlord's reasonable
judgment, to maintain the Premises in good order, condition
and repair, then Landlord may perform the maintenance,
repairs, refurbishing or repairing at Tenant's expense.
6.4 Condition on Surrender. On the expiration or earlier
termination of this Lease, or on the exercise by Landlord of
Landlord's right to re-enter the Premises without terminating
this Lease, Tenant shall surrender the Premises in the same
condition as received or as subsequently improved by Landlord
or Tenant, except for (i) ordinary wear and tear, and (ii)
damage by fire, earthquake, acts of God or the elements for
which damage Landlord has received all insurance proceeds, and
shall deliver to Landlord all keys for the Premises and
combinations to safes located in the Premises. Tenant shall,
at Landlord's option, remove, or cause to be removed, from the
Premises or the Building, at Tenant's expense and as of the
expiration or termination of this Lease, all signs, notices,
displays, millwork, nonmovable trade fixtures, or, subject to
Subsection 6.5(d) of this Lease, any non-Building standard
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tenant improvements placed in the Premises or the Building.
Tenant shall repair, at Tenant's expense, any damage to the
Premises or the Building resulting from the removal of any
item, including without limitation, repairing the floor and
patching and painting the walls where reasonably required by
Landlord. Tenant, however, has no obligation to remove any
improvements in place in the Premises at the Commencement Date
of this Lease. Tenant's obligations under this Section 6.4
shall survive the expiration or earlier termination of this
Lease. If Tenant fails to remove any item of property
permitted or required to be removed at the expiration or
earlier termination of the Term, Landlord may, at Landlord's
option, (a) remove that property from the Premises or Building
at Tenant's expense and sell or dispose of it in a manner that
Landlord considers advisable, or (b) place that property in
storage at Tenant's expense. Any property of Tenant remaining
in the Premises ten (10) days after the expiration or
termination of this Lease will be deemed to have been
abandoned by Tenant.
6.5 Alterations by Tenant.
(a) Approval Required. Tenant shall not make, or cause or
permit to be made, any additions, alterations, installations
or improvements in or to the Premises (collectively,
"Alterations"), without the prior written consent of Landlord.
Unless Landlord has waived the requirement in writing,
together with Tenant's request for approval of an Alteration,
Tenant must also submit details with respect to design
concept, plans and specifications, names of and financial and
other pertinent information about proposed contractors
(including without limitation, the labor organization
affiliation or lack of affiliation of any contractors),
certificates of insurance to be maintained by Tenant's
contractors, hours of construction, proposed construction
methods, details with respect to the quality of the proposed
work and reasonable evidence of security (such as payment and
performance bonds) to assure timely completion and payment of
the costs of the work by the contractor. With respect to an
Alteration that is visible from outside the Premises, the
Alteration must, in the opinion of Landlord, also be
architecturally and aesthetically harmonious with the
remainder of the Building.
(b) Complex Alterations. If the nature, volume or complexity
of any proposed Alteration will affect the basic heat,
ventilation and air conditioning or other Building Facilities
or systems or the Building, Tenant shall furnish to Landlord
information reasonably required by Landlord to insure Landlord
that the Alternation meet Landlord's reasonable requirements
so as not to adversely affect the Building or Building
Facilities or systems; otherwise, Landlord may require that
the work be designed by consultants designated by Landlord and
be performed by Landlord or Landlord's contractors.
(c) Standard or Work. All work to be performed by or for
Tenant pursuant hereto will be performed diligently and in a
first-class, workmanlike manner, and in compliance with all
applicable laws, ordinances, regulations and rules of any
public authority having jurisdiction over the Building and/or
Tenant and, so long as communicated in writing to Tenant,
Landlord's insurance carriers. Landlord has the right, but not
the obligation, to inspect periodically the work on the
Premises and may make required changes in the method or
quality of the work.
(d) Ownership of alterations. Except for Tenant's telephone
system and computer system, all Alterations made by or for
Tenant (other than Tenant's movable trade fixtures),
immediately become the property of Landlord, without and
cabinetry are considered improvements of the Premises and not
movable trade fixtures, regardless of how or where affixed. No
Alterations will be removed by Tenant from the Premises either
during or at the expiration or earlier termination of the
Term, and they shall be surrendered as a part of the Premises
unless the Alteration is not Building-standard and Landlord
has requested that Tenant remove it. Tenant may request at the
time of submission to Landlord of Tenant's information in
connection with a proposed Alteration that Landlord designate
which non-Building standard Tenant improvements resulting from
the Alteration are subject to removal at the end of the Term.
In the absence of such a request, all non-Building standard
improvements resulting from the Alteration are subject to
removal in accordance with the provisions of this Lease.
6.6 Payment of Costs: Mechanic's Liens. Except for costs that
Landlord agrees with Tenant in writing to pay (including in an
Exhibit or Rider attached to this Lease), Tenant shall pay for
all costs incurred or arising out of alterations, additions or
improvements in or to the Premises and shall not permit a
mechanic's or materialman's lien to be asserted against the
Premises. On Landlord's request, Tenant shall deliver to
Landlord proof of payment reasonably satisfactory to Landlord
of all costs incurred or arising out of any such alterations,
additions or improvements.
If Tenant contracts with a third party for the construction of
improvements in the Premises, or for the supply of materials
relating thereto, Tenant shall obtain validly executed and
acknowledged lien waivers from any party who might assert a
mechanic's or materialmen's lien as a result of Tenant's
contract, regardless of the probable or ultimate validity of
that lien. If a lien is filed against the Premises or any
interest of Landlord or Tenant in the Building, then Tenant
shall cause same to be discharged of record within ten (10)
days after its filing. If Tenant fails to obtain that
discharge, then, in addition to any other right or remedy of
Landlord, Landlord may (buy is not obligated to) discharge the
lien, either by paying the amount claimed to be due or by
procuring a bond, or by any other means. Any amount paid by
Landlord to obtain the discharge of the lien, with interest on
that amount at the lesser of eighteen percent (18%) per annum
or the highest lawful rate, from the date of Landlord's
payment to the date of repayment to Landlord, shall be paid by
Tenant to Landlord on demand.
ARTICLE VII
LANDLORD'S RIGHT OF ENTRY
7.1 Entry. In addition to its re-entry rights under Section 13.2,
Landlord and its authorized agents may, during reasonable
hours, enter the Premises (i) to inspect their general
condition and state of repair, (ii) to make repairs required
or permitted under this Lease, (iii) to show the Premises to
any prospective purchaser or mortgagee, or (iv) for any
other reasonable purpose. Landlord may show the Premises to a
prospective tenant only within the final 90 days of the Term.
7.2 "For Rent" Signs. During the final 90 days of the Term,
Landlord and its authorized agents may erect and maintain
on or about the Premises signs advertising the Building or
Premises for lease.
ARTICLE VIII
INSURANCE, FIRE AND CASUALTY DAMAGE
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8.1 Insurance on Building. Landlord shall maintain fire and
extended coverage insurance on the Building in an amount not
less than 80% (or such greater percentage as necessary to
comply with co-insurance requirements of the policy) of the
"replacement cost" thereof, as defined in a Replacement Cost
Endorsement to be attached thereto. Subject to the provisions
of Section 8.2 and 8.5 below, that insurance is for Landlord's
sole benefit and is under its sole control.
8.2 Casualty Covered by Insurance. If the Building, or any part
thereof, is damaged or destroyed by any peril covered by the
insurance described in Section 8.1, then Tenant shall give
immediate notice thereof to Landlord, and Landlord shall at
its sole costs and expense proceed with reasonable diligence
to rebuild and repair the damaged areas to substantially the
condition in which they existed before the damage or
destruction, except that Landlord is not required to rebuild,
repair or replace any part of the partitions, fixtures,
additions or other improvements placed in, on or about the
Premises by Tenant, nor is Landlord required in any event to
expend more than the amount of insurance proceeds actually
received by Landlord as a result of fire or other casualty.
Rental payable by Tenant under this Lease shall be abated to
the extent that the Premises are rendered uninhabitable by the
casualty.
8.3 Casualties Not Covered By Landlord's Insurance. If the
Premises, or any part thereof, are damaged or destroyed by a
casualty other than a peril covered by the insurance to be
provided by Landlord under Section 8.1, or if any other
improvements situated on the Premises are damaged or
destroyed, then Tenant shall at its sole cost and expense
proceed with reasonable diligence to rebuild and repair the
damaged improvements to substantially the condition in which
they existed before the damage or destruction, subject to
Landlord's approval of the plans and specifications for the
rebuilding and repairing.
8.4 Tenant's Property Insurance. Tenant shall maintain insurance
on all alterations, additions, partitions and improvements
erected by or on behalf of Tenant in, on or about the Premises
in an amount not less than 80% (or such greater percentage as
necessary to comply with co-insurance requirements of the
policy) of the "replacement cost" thereof, as defined in the
Replacement Cost Endorsement to be attached to the policy.
Written evidence of the required insurance coverage or
certified copies of policies and receipts evidencing payment
of the premiums therefor shall be delivered to Landlord before
the Commencement Date. Not less than ten (10) days before the
expiration date of any such policies, written evidence of
insurance or certified copies of renewals thereof (bearing
notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. All policies shall be procured by
Tenant from financially responsible insurance companies
acceptable secured by as mortgage or deed of trust covering
the Premises requires that the insurance proceeds be applied
to that indebtedness, then Landlord may terminate this Lease
by delivering written notice of termination to Tenant within
thirty (30) days after the requirement is made by the
lienholder, whereupon all further rights and obligations of
each party hereunder shall cease and terminate.
8.6 Termination of Lease. Notwithstanding anything contained to
the contrary in this Article VIII, if the Building or the
Premises is destroyed by a fire or other casualty to the
extent that, in Landlord's reasonable judgment, the Building
or the Premises cannot practically be rebuilt to its
pre-existing condition within one hundred twenty (120) days,
or in any event during the last twelve (12) months of the
Term, then Landlord may, at Landlord's sole option, terminate
this Lease within ninety (90) days from the date of
destruction, by delivering written notice thereof to Tenant,
in which case neither party hereto shall have any further
obligations hereunder to the other except for Landlord's
obligations under Section 2.6.
8.7 Waiver of Subrogation. Each of Landlord and Tenant waives any
and every claim in its favor against the other during the Term
of this Lease for any and all loss of, or damage to, any of
its property located within or upon, or constituting a part
of, the Premises, which loss or damage is covered by valid and
collectible fire and extended coverage insurance policies.
These mutual waivers are in addition to, and not in limitation
or derogation of, any other waiver or release contained in
this Lease with respect to any loss of, or damage to, property
of Tenant. Because the mutual waivers will preclude the
assignment of a claim by way of subrogation or otherwise to an
insurance company (or any other person), each party hereto
shall immediately give to each insurance company which has
issued to it policies of fire and extended coverage insurance,
written notice of the terms of the waiver, and shall cause
those insurance policies to be properly endorsed, if
necessary, to prevent the invalidation of insurance coverages
by reason of the waiver.
ARTICLE IX
INDEMNITY AND PUBLIC LIABILITY INSURANCE
9.1 Indemnity. Landlord is not liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person
whomsoever, for any injury to person or damage to property on
or about the Premises, if caused by the action or inaction of
Tenant, its agents, servants or employees, or of any other
person entering upon the Premises under the expressed or
implied invitation of Tenant, or caused by the Building or the
improvements located on the Premises becoming out of repair,
or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Premises, or due to any cause
whatsoever. Tenant hereby indemnifies Landlord and agrees to
hold it harmless from any loss, expense or claims, including
attorney's fees, arising out of any such damage or injury,
except injury to persons or damage to property the sole cause
of which is the gross negligence or wilful misconduct of
Landlord.
9.2 Liability Insurance. Tenant shall procure and maintain
throughout the Term at its sole cost and expense, a policy or
policies of comprehensive general liability insurance, for
bodily injury or death or property damage, insuring Landlord
and Tenant against all claims, demands, or actions relating to
the Premises on an occurrence basis with a minimum combined
single limit with policy limits of not less than $1,000,000
per occurrence for injury to persons (including death), and
for property damage or destruction, including loss of use. All
policies shall be procured by Tenant from financially
responsible insurance companies acceptable to Landlord, and
shall name Landlord, and any other party reasonably designated
by Landlord, as "additional insureds." Written evidence of the
required insurance coverage or certified copies of policies
and receipts evidencing payment of premiums therefor shall be
delivered to Landlord before the Commencement Date. Not less
than ten (10) days before the expiration date of any policies,
written evidence of insurance or certified copies of the
renewals thereof (bearing notations evidencing the payment of
renewal premiums) shall be delivered to Landlord. All policies
shall provide that not less than thirty (30) days' written
notice shall be given to Landlord before a policy may be
canceled.
Initial Initial
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9.3 Tenant's Failure to Maintain Insurance. If Tenant fails to
comply with the foregoing insurance requirements, then
Landlord may (in addition to having available to it all other
remedies provided herein on the occurrence of an Event of
Default) obtain such insurance, and Tenant shall pay to
Landlord on demand, as additional rent hereunder, the premium
cost thereof plus interest at the lesser of eighteen percent
(18%) per annum or the highest lawful rate, from the date of
payment by Landlord until payment by Tenant.
ARTICLE X
CONDEMNATION
10.1 Total or Substantial Condemnation. If all or a substantial
part of the Premises is taken for any public or quasi-public
use under any governmental law, ordinance or regulation or by
right of eminent domain, or is sold to the condemning
authority under threat of condemnation, then this Lease shall
terminate and the rent shall be abated during the unexpired
portion of the Term, effective from the date of taking of the
Premises by the condemning authority.
10.2 Partial Condemnation. If less than a substantial part of the
Premises is taken for public or quasi-public use under any
governmental law, ordinance or regulation, or by right of
eminent domain, or is sold to the condemning authority under
threat of condemnation, then Landlord, at its option, may be
written notice to Tenant terminate this Lease or shall
forthwith at its sole expense restore and reconstruct the
building in which the Premises are located and improvements
made by Tenant or any assignee, subtenant or other occupant of
the of the Premises) to make the same reasonably suitable for
the uses for which the Premises are leased, as provided in
Section 4.1.
10.3 Disposition of Awards. All awards arising from a total or
partial taking of the Premises, of Tenant's leasehold estate,
or a taking for temporary use shall belong to and be the
property of Landlord without any participation by Tenant.
Tenant hereby assigns to Landlord any share of any such award
that might otherwise be payable to Tenant. Tenant hereby
waives any rights it may have with respect to the loss of its
leasehold estate pursuant to this Lease and the Premises as a
result of
ARTICLE XI
ASSIGNMENT, TRANSFER AND SUBLEASING BY TENANT
11.1 Landlord's Consent Required.
(a) No Assignment or Subletting. Tenant shall not assign or in
any manner transfer this Lease or any estate or interest
therein, or sublet the Premises or any part thereof, or grant
any license, concession or other right of occupancy of any
portion of the Premises without the prior written consent of
Landlord. Consent by Landlord to one or more assignments or
sublettings shall not operate as a waiver of Landlord's right
to any subsequent assignments and sublettings. All assignments
and sublettings shall be subject to the use limitations stated
in Section 4.1.
(b) Required Information. If Tenant desires to assign this
Lease or to sublet all or part of the Premises, then Tenant
shall notify Landlord at least sixty (60) days in advance of
the date on which Tenant desires to make the assignment or
enter into the sublease. Tenant shall provide Landlord with a
copy of the proposed assignment or sublease, and sufficient
information concerning the proposed assignee or subtenant to
allow Landlord to make informed judgments as to the financial
condition, reputation, operations and general desirability of
the proposed assignee or subtenant.
(c) Landlord's Options. Within thirty (30) days after
Landlord's receipt of the documents and information described
in Section (b) above, Landlord has the following options:
(i) cancel the Lease as to all of the Premises if
Tenant proposes to assign the Lease or sublet more
than fifty percent (50%) of the Premises, or cancel
the Lease as to the portion of the Premises proposed
to be sublet if Tenant proposes to sublet less than
fifty percent (50%) of the Premises; or
(ii) consent to the proposed assignment or sublease,
subject to the other provisions contained in this
Article XI; or
(iii) refuse to consent to the proposed assignment or
sublease but allow Tenant to continue its search for
an assignee or subtenant that will be acceptable to
Landlord, which option will be deemed to have been
elected by Landlord unless Landlord gives Tenant
written notice to the contrary.
(d) Legal Fees and Other Expenses. To reimburse Landlord for
administrative and legal expenses associated with its review
and/or preparation of legal documents relating to a proposed
assignment or sublease, Tenant shall pay to Landlord the
amount of all reasonable legal fees and expenses incurred by
Landlord in connection with its review of Tenant's request,
plus any legal fees and disbursements incurred in the
preparation and review of any documentation. Tenant shall pay
these amounts within five (5) days after its receipt of an
invoice from Landlord, as additional rent.
11.2 Transfer of Voting Interest. If Tenant is a corporation or
partnership and if any time during the Term of this Lease
(including extensions, those persons who own a majority or
either the outstanding voting shares or all outstanding shares
of capital stock or the controlling partnership interests of
Tenant at the time of the execution of this Lease, cease to
own a majority of those shares or partnership interest (except
as the result of transfers by devise or descent ), then the
change in ownership of a majority of those shares or
partnership interests is deemed an assignment of this Lease by
Tenant and therefore subject in all respects to the provisions
of Section 11.1. The previous sentence shall not apply,
however, if at the time of the execution of this Lease the
outstanding voting shares of capital stock or partnership
interests of Tenant are listed on a recognized security
exchange or over-the-counter market.
11.3 No Release. Notwithstanding any assignment or subletting,
Tenant and any Guarantor of Tenant's obligations under this
Lease shall remain fully responsible and liable for the
payment of the rent herein specified and for compliance with
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9
all of Tenant's other obligations under this Lease (even if
future assignments and sublettings occur after the assignment
or subletting by Tenant, and regardless of whether or not
Tenant's approval has been obtained for those future
assignments and sublettings). Moreover, if the rental due
and payable by a sublessee (or a combination of the rental
payable for the sublessee plus any bonus or other
consideration relating thereto) exceeds the rental payable
under this Lease, or if with respect to a permitted
assignment, permitted license or other transfer by Tenant
permitted by Landlord, the consideration payable to
Tenant by the assignee, licensee or other transferee exceeds
the rental payable under this Lease, then Tenant shall pay to
Landlord the excess amounts within ten (10) days after receipt
thereof by Tenant. Finally, on an assignment or subletting, it
is understood and agreed that all rentals paid to Tenant by an
assignee of sublessee are received by Tenant in trust for
Landlord, to be forwarded immediately to Landlord without
offset or reduction of any kind. On Landlord's election, those
rentals shall be paid directly to Landlord as specified under
this Lease (to be applied as a credit against Tenant's accrued
rental obligations, with any excess being the sole property of
Landlord).
11.4 No Mortgage. Tenant shall not mortgage, pledge or otherwise
encumber its interest in this Lease or in the Premises.
11.5 Transfer of Landlord's Interest. On a transfer and assignment
by Landlord of its interest in this Lease, or all or part of
the Building, Landlord shall thereby be released from any
further obligations hereunder, and Tenant shall look solely to
the successor in interest of Landlord for performance of those
obligations. Any security given by Tenant to secure
performance oaf Tenant's obligations hereunder may be
transferred by Landlord to the successor in interest, and
Landlord shall thereby be discharged of any further obligation
relating thereto. On a transfer of its interest in the
Building or Premises, Landlord may become a mortgagee for
proposes of Article XIV.
11.6 Bankruptcy. If this Lease is assigned in connection with
a bankruptcy proceeding, the provisions of Article XIV apply.
oaf Tenant's obligations hereunder may be transferred by
Landlord to the successor in interest, and Landlord shall
thereby be discharged of any further obligation relating
thereto. On a transfer of its interest in the Building or
Premises, Landlord may become a mortgagee for proposes of
Article XIV.
11.6 Bankruptcy. If this Lease is assigned in connection with a
bankruptcy proceeding, the provisions of Article XIV apply.
ARTICLE XII
HOLDING OVER
Without in any way affecting Landlord's rights and remedies under this
Lease, if Tenant holds over after the expiration or termination of the Lease,
then Tenant shall pay as monthly rent during each month of the holdover period
an amount equal to 150% of the amount of monthly rent due for the last month of
the Term. No holding over by Tenant after the Term of this Lease, either with or
without the consent and acquiescence of Landlord, shall extend the Term for a
period longer than one month unless that Term is extended in a writing executed
by Landlord. Any holding over without the written consent of Landlord shall be
on a tenacy-at-sufferance basis. On an unauthorized holding over, Tenant shall
indemnify Landlord against all claims for damages with respect to any other
lessee or prospective lessee to whom Landlord has leased all or any part of the
Premises.
ARTICLE XIII
DEFAULT BY TENANT: LANDLORD'S REMEDIES
13.1 Events of Default. The following events (individually, an
"Event of Default," and collectively, "Events of Default")
constitute defaults under this Lease:
(a) Failure of Tenant to pay when due an installment of the
rent or any other amount payable to Landlord hereunder.
(b) Failure of Tenant to comply with any term, condition or
covenant of this Lease.
(c) Insolvency of, or the making of a transfer in fraud of
creditors or a general assignment for the benefit of creditors
by Tenant or a Guarantor of Tenant's obligations under this
Lease.
(d) Filing of a petition under any section or chapter of the
United States Bankruptcy Code, as amended, or under any
similar law or statute of the United States or any State
thereof, by Tenant or by a Guarantor of Tenant's obligations
under this Lease, or entry of an order for relief in a
bankruptcy proceeding against Tenant or a Guarantor.
(e) Appointment of a receiver, trustee or liquidator of Tenant
or of a Guarantor or for all or substantially all of the
assets of Tenant or of a Guarantor of Tenant's obligations
under this Lease.
(f) Abandonment by Tenant of any substantial portion of the
Premises or cessation of use of the Premises for the purpose
leased.
(g) Assignment of Tenant's interest in this Lease by operation
of law.
13.2 Remedies of Landlord. On the occurrence of an Event of Default
listed in Section 13.1, Landlord may pursue any one or more of
the following remedies after giving Tenanat seven (7) days
written notice of such event of default except as otherwise
indicated (and, further, Tenant is liable for damages as
provided in Section 13.3):
(a) Termination. Terminate this Lease by giving written notice
of termination to Tenant, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant
fails to so surrender the Premises, then Landlord may, without
prejudice to any other remedy it has for possession of the
Premises or arrearages in rent or other damages, re-enter and
take possession of the Premises and expel or remove Tenant and
any other person occupying the Premises or any part thereof,
by any lawful means.
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10
(b) Continuation of Lease: Reletting of Premises. Landlord may
continue this Lease in full force and effect, in which case
Tenant is liable for all rents and other amounts payable under
this Lease. Landlord may, nevertheless, re-enter and take
possession of the Premises, by any lawful means, without
terminating this Lease and without being liable for
prosecution or for any claim for damages therefor, and relet
the Premises and apply the rent received to the account of
Tenant. No reletting by Landlord is considered to be for its
own account unless Landlord has notified Tenant that this
Lease has been terminated. Landlord may relet the Premises for
a period or periods of time equal to, lesser or greater than
the remainder of the Term, and on whatever terms and
conditions Landlord, in its sole discretion, deems advisable.
Landlord's action under this subsection (b) is not considered
an acceptance of Tenant's surrender of the Premises unless
Landlord expressly so notifies or agrees with Tenant in
writing.
(c) Act for Tenant. Re-enter the Premises by any lawful means,
without terminating this Lease, and do whatever Tenant is
obligated to do under the terms of this Lease. Tenant shall
pay to Landlord, on demand, expenses incurred by Landlord in
effecting compliance with Tenant's obligations under this
Lease, plus interest thereon at the lesser of 18% per annum or
the highest lawful rate, from the date expended until repaid.
Landlord is not liable for any damages resulting to Tenant
from such action, whether caused by negligence of Landlord or
otherwise.
(e) Recapture of Advance Benefits. In addition to the remedies
set forth in Section 13.2(a)-(d), inclusive, on the occurrence
of an Event of Default by Tenant under this Lease with respect
to which Landlord elects either to terminate this Lease or,
without terminating this Lease, to terminate Tenant's
possession of the Premises, (i) Tenant shall pay to Landlord
in cash on demand an amount equal to all "Reimbursable Costs"
(as defined below) for which Tenant has not yet vested (as
defined below), and (ii) any remaining rental abatement and/or
other concessions that have not yet accrued under this Lease
shall terminate. As used herein, the "Reimbursable Costs"
means the total of (i) the aggregate dollar value of all
rental abatements that Tenant has received under this Lease;
(ii) any amount paid by Landlord for tenant leasehold
improvements in the Premises; and (iii) the aggregate dollar
amount which has been paid to or on behalf of Tenant under
this Lease, including, without limitation, any brokerage
commission paid and/or payable by Landlord in connection with
execution of this Lease. Because the Reimbursable Costs were
incurred by Landlord in reliance on Tenant's fully performing
Tenant's obligations under this Lease. Tenant hereby
acknowledges that Landlord will be damaged on a default by
Tenant in an amount equal to the aggregate dollar value of the
Reimbursable Costs for which Tenant has not yet vested, in
addition to (and not in lieu of) any other damages suffered by
Landlord. Tenant shall vest as to Reimbursable Costs at the
rate of (A) 100% divided by the number of months in the
initial Term for which Tenant is obligated to pay full rent,
(B) multiplied by the number of months for which Tenant has
paid full rent and is not otherwise in default hereunder. No
vesting shall occur with respect to any month for which Tenant
has not paid rent or in which Tenant is otherwise in default
hereunder. For example, if Tenant is obligated to pay full
rent for 50 months, then Tenant shall vest hereunder at the
rate of 2% for each month for which it pays full rent.
(f) Lease Remedies Not Exclusive: Lease Supersedes Property
Code. Pursuit of any of the foregoing remedies does not
constitute an irrevocable election of remedies nor preclude
pursuit of any other remedy provided elsewhere in this Lease
or by applicable law, and none is exclusive of another unless
so provided in this Lease or by applicable law. Likewise,
forbearance by landlord to enforce one or more of the remedies
available to it on an Event of Default does not constitute a
waiver of that default or of the right to exercise that remedy
later or of any rent, damages or other amounts due to Landlord
hereunder. In the case of a conflict, and to the extent that
Section 92 of the Texas Property Code applies to this Lease,
the terms of this Lease supersede and control the provisions
of Section 92 of the Texas Property Code.
13.3 Tenant's Liability For Landlord's Damages.
(a) In General. In all events, Tenant is liable for all
damages of whatever kind or nature, direct or indirect,
suffered by Landlord as a result of the occurrence of an Event
of Default. If Tenant fails to promptly pay Landlord for the
damages suffered, Landlord may pursue a monetary recovery from
Tenant. Included among those damages are all expenses incurred
by Landlord in repossessing the Premises (including, among
other expenses, increased insurance premiums resulting from
Tenant's vacancy), all expenses incurred by Landlord in
reletting the Premises (including, among other expenses, those
incurred for repairs, remodelling, replacements,
advertisements and brokerage fees), all concessions granted to
a new tenant on a reletting, all losses incurred by Landlord
as a result of Tenant's default (including, among other
losses, any adverse reaction by Landlord's mortgagee or by
other tenants or prospective tenants of the Building) and a
reasonable allowance for Landlord's administrative efforts,
salaries and overhead attributable directly or indirectly to
Tenant's default and Landlord's pursuit of the rights and
remedies provided under this Lease or by applicable law.
(b) Termination of Lease. If Landlord terminates this Lease
under Section 13.2(a), then Tenant shall pay to Landlord on
demand the amount of all loss and damage suffered by Landlord
by reason of the termination, to be determined by one or a
combination of the following measures of damages:
(i) Until Landlord is able, through good faith
efforts (the nature of which shall be at Landlord's sole
discretion), to relet the Premises, Tenant shall pay to
Landlord on or before the first day of each calendar month,
the amounts required to be paid by Tenant under this Lease.
After the Premises have been relet by Landlord, Tenant shall
pay to Landlord on the 20th day of each calendar month, the
difference between the amount required to be paid by Tenant
under this Lease for that calendar month and the amount
actually collected by Landlord for that month. If it becomes
necessary for Landlord to bring suit to collect a deficiency,
Landlord may allow the deficiency to accumulate and may bring
an action on several or all of the accrued deficiencies at one
time. No suit shall prejudice in any way Landlord's right to
bring a similar action for any deficiency or deficiencies that
arise later. Any amount collected by Landlord form subsequent
tenants for any calendar month which exceeds the amounts
required to be paid by Tenant under this Lease shall be
credited to reduce Tenant's liability for any calendar month
for which the amount collected by Landlord is less than the
amount required to be paid by Tenant, as Tenant's sole right
to that excess.
(ii) When Landlord desires to do so, including after
it has elected to proceed under subparagraph (i) immediately
above (that election not being exclusive under this Lease).
Landlord may demand a final settlement. On that demand,
Landlord is entitled to receive from Tenant the difference
between the total of all amounts required to be paid by Tenant
under this Lease for the remainder of the Term minus the
reasonable rental value of the Premises for that period, with
such difference to be discounted to a present value based on a
rate equal to the rate of interest allowed by law in Texas
Initial Initial
11
when the parties to a contact have not agreed on a particular
rate of interest (or, in the absence of such a stipulated
rate, at the rate of 10% per annum).
(iii) Landlord's election to proceed under subsection
(i) above shall not prejudice its right thereafter to cancel
that election in favor of the remedy described in subsection
(ii) above, so long as at the time of that cancellation,
Tenant is still in default.
(c) Continuation of Lease: Reletting of Premises. If Landlord
elects to continue this Lease in effect, then Tenant is liable
for the rent and other accounts due hereunder. If Landlord
relets the Premises for the account of Tenant, then the
amounts actually received by Landlord shall be credited to the
amounts owed by Tenant under this lease (including the amounts
described in Section 13.3(a)).
ARTICLE XIV
BANKRUPTCY OR INSOLVENCY OF TENANT
14.1 Liquidation. If Tenant becomes a debtor under Chapter 7 of the
federal Bankruptcy Code, 11 U.S.C. ▇▇.▇▇. 101 et seq. (the
"Bankruptcy Code"), and Tenant's trustee or Tenant elects to
assume this Lease for the purpose of assigning it, or
otherwise, then that election and assignment may be made only
if the provisions of Sections 14.2 and 14.4 are satisfied. If
Tenant or Tenant's trustee fails to elect to assume this Lease
within 60 days after an order for relief is entered against
Tenant, or such additional time as is provided by the court
within that 60-day period, then this Lease shall be deemed to
have been rejected. Immediately after that rejection, Landlord
may repossess the Premises without further obligation to
Tenant or Tenant's trustee and this Lease shall terminate, but
Landlord's right to be compensated for damages (including,
without limitation, liquidated damaged provided for under this
Lease) in any such proceeding shall survive.
14.2 Reorganization. If a petition for reorganization or adjustment
of debts is filed concerning Tenant under Chapter 11 of the
Bankruptcy Code, or a proceeding is filed under Chapter 7 of
the Bankruptcy Code and is converted to a Chapter 11 case,
then Tenant's trustee or Tenant, as debtor-in-possession, must
elect to assume this Lease within 120 days after an order for
relief is entered against Tenant, or Tenant's trustee or the
debtor-in-possession shall be deemed to have rejected this
Lease. If Tenant, Tenant's trustee or the debtor-in-possession
fails to perform all of Tenant's obligations under this Lease
within the time periods (excluding grace periods) required for
that performance, then no election by Tenant's trustee or the
debtor-in-possession to assume this Lease, whether under
Chapter 7 or Chapter 11, is effective unless each of the
following conditions has been satisfied.
(a) Defaults Cured. Tenant's trustee or the
debtor-in-possession cures all defaults under the Lease, or
provides Landlord with Assurance (as defined below) that it
will cure, (i) all defaults that can be cured by the payment
of money within 10 days from the date of such assumption and
(ii) all other defaults under this Lease that can be cured by
the performance of the act needed to effect the cure promptly
after the date of assumption.
(b) Compensation for Damages. Tenant's trustee or the
debtor-in-possession and, if this Lease has been guaranteed,
Guarantor compensates, or provides Landlord with Assurance
that within 10 days from the date of such assumption it will
compensate, Landlord for any actual pecuniary loss incurred by
Landlord arising from the default of Tenant, Tenant's trustee,
or the debtor-in-possession as indicated in any statement of
actual pecuniary loss sent by Landlord to Tenant's trustee or
the debtor-in-possession.
(c) Assurance of Future Performance. Tenant's trustee or the
debtor-in-possession provides Landlord with Assurance of the
future performance of the obligations of Tenant under the
Lease, Lessee's trustee or the debtor-in- possession, and if
that Assurance has been provided, Tenant's trustee or the
debtor-in-possession shall also (i) deposit with Landlord, as
security for the timely payment of rent under this Lease, an
amount equal to three (3) months' Base Rental, and (ii) pay in
advance to Landlord on the date that Base Rental is due and
payable, one-twelfth (1/12) of Tenant's annual obligations for
any other purpose (e.g., taxes and insurance) pursuant to this
Lease. The obligations imposed on Tenant's trustee or the
debtor-in-possession shall continue with respect to Tenant or
any assignee of this Lease after the completion of bankruptcy
proceedings.
(d) No Breach of Other Obligations. The assumption will not
breach or cause a default under any provision of any other
lease, mortgage, financing agreement or other agreement by
which Landlord is bound relating to the Premises or any larger
development of which the Premises are a part.
For purposes of this Article XIV, Landlord and Tenant
acknowledge that "Assurance" means no less than (i) Tenant's
trustee or the debtor-in-possession has and will continue to
have sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to assure
Landlord that sufficient funds will be available to fulfill
the obligations of Tenant under this Lease and there has been
deposited with Landlord, or the Bankruptcy Court has entered
an order segregating, sufficient cash payable to Landlord,
and/or Tenant's trustee or the debtor-in-possession shall have
been granted a valid and perfected first lien and security
interest and/or mortgage in property of Tenant, Tenant's
trustee or the debtor-in- possession, acceptable as to value
and kind to Landlord, to secure to Landlord the obligation of
Tenant, Tenant's trustee or the debtor-in-possession to cure
the defaults under this Lease, monetary and/or non-monetary,
within the time periods set forth above, and (if this Lease
has been guaranteed) (ii) Guarantor has cured all defaults
under this Lease that can be cured by the payment of money and
has undertaken to promptly cure all other defaults under this
Lease that can be cured by the performance of any act and, if
this Lease has been guaranteed, Landlord has received a duly
authorized and binding undertaking of Guarantor that Guarantor
remains obligated under its Guaranty to the same extent as if
the circumstances giving rise to the requirement that
Assurance be provided had not occurred, together with a
statement of Guarantor's certified public accountants
certifying that the net worth of Guarantor, on a consolidated
basis but exclusive of any net worth of Lessee, is in excess
of $250,000.00. For an individual Guarantor, there shall be
excluded from the Guarantor's net worth for purposes hereof
any equity in the Guarantor's principal residence. For a
non-individual Guarantor, there shall be excluded from that
Guarantor's net worth for purposes hereof its basis in its
fixed assets, including land and buildings.
Initial Initial
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14.3 Subsequent Liquidation or Petition. If this Lease is assumed
in accordance with Section 14.2 and thereafter Tenant is
liquidated or files a petition for reorganization or
adjustment of debts under Chapter 11 of the Bankruptcy Code,
Landlord may, at its option, terminate this Lease and all
rights of Tenant hereunder, by giving Tenant notice of its
election so to terminate within 30 days after occurrence of
either of such events.
Initial Initial
13
14.4 Assignment.
(a) Adequate Assurance of Future Performance. If Tenant's
trustee or the debtor-in-possession assumes this Lease
pursuant to the terms and provisions of Sections 14.1 or 14.2
for the purpose of assigning (or otherwise elects to assign)
this Lease to an assignee other than Guarantor, then this
Lease may be so assigned only if the proposed assignee
provides adequate assurance of future performance of all of
the terms, covenants and conditions of this Lease to be
performed by Tenant including, without limitation, the
obligation to pay Base Rental. As used herein, "adequate
assurance of future performance" means that no less than each
of the following conditions has been satisfied:
(i) The proposed assignee has furnished Landlord with
either (A) a current financial statement audited by a
certified public accountant indicating a net worth and working
capital in amounts that Landlord reasonably determines are
sufficient to assure the future performance by the assignee of
Tenant's obligations under this Lease or (B) a guaranty, or
guaranties, in form and substance satisfactory to Landlord
from one or more persons with a net worth and working capital
in amounts that Landlord reasonably determines are sufficient
to assure the future performance of Tenant's obligations under
this Lease.
(ii) The proposed assignment will not release or
impair any guaranty of the obligations of Tenant (including
Guarantor and the proposed assignee) under this Lease.
(iii) The proposed assignee and its guarantors have a
demonstrated financial condition and operating performance
similar or superior to that of Tenant and any Guarantor of
Tenant's obligations under this Lease at the date that Tenant
became a tenant hereunder.
(b) Any and all monies or other considerations payable or
otherwise to be delivered in connection with the assignment
referred to in subparagraph (i) next above shall be paid or
delivered to Landlord, shall be and remain the exclusive
property of Landlord and shall not constitute property of
Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence
not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and be promptly paid to or turned over
to Landlord.
(c) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be
deemed without further act or deed to have assumed all of the
obligations arising under this Lease on and after the date of
such assignment. Any such assignee shall on demand execute and
deliver to Landlord an instrument confirming the assumption.
14.5 Reasonable Charges. When, pursuant to the Bankruptcy Code,
Tenant's trustee or the debtor-in-possession is obligated to
pay reasonable use and occupancy charges for the use of the
Premises, the charges shall not be less than the Base Rental
and all other amounts payable to Tenant under this Lease.
14.6 Consent. Neither the whole nor any portion of Tenant's
interest in this Lease or its estate in the Premises shall
pass to any trustee, receiver, assignee for the benefit of
credits, or any other person or entity, or otherwise by
operation of law under the laws of any state having
jurisdiction of the person or property of Tenant unless
Landlord has consented to the transfer in writing. No
acceptance by Landlord of Base Rental or any other payments
from a trustee, receiver, assignee, person or other entity
shall be deemed to constitute such consent by Landlord, nor
shall it be deemed a waiver of Landlord's right to terminate
this Lease for transfer of Tenant's interest under this Lease
without such consent.
14.7 Intent. Landlord and Tenant acknowledge, for themselves and
for each of their successors and assigns, their intent to have
the applicable provisions of ss 365 of the Bankruptcy Code, or
any successor provision, apply to this Lease.
ARTICLE XV
LIEN FOR RENT
IN CONSIDERATION OF THE MUTUAL BENEFITS ARISING UNDER THIS LEASE,
TENANT HEREBY GRANTS TO LANDLORD A LIEN AND SECURITY INTEREST IN ALL PROPERTY OF
TENANT (INCLUDING, BUT NOT LIMITED TO, ALL FIXTURES, MACHINERY, EQUIPMENT,
FURNISHINGS, AND OTHER ARTICLES OF PERSONAL PROPERTY NOW OR HEREAFTER PLACED IN
OR ON THE PREMISES BY TENANT, TOGETHER WITH THE PROCEEDS FROM THE DISPOSITION OF
THE THOSE ITEMS) [THE "COLLATERAL"], NOW OR HEREAFTER PLACED IN OR UPON THE
PREMISES, AS SECURITY FOR PAYMENT OF ALL RENT AND OTHER SUMS AGREED TO BE PAID
BY TENANT HEREIN. THE PROVISIONS OF THIS ARTICLE XV CONSTITUTE A SECURITY
AGREEMENT UNDER THE TEXAS UNIFORM COMMERCIAL CODE, AND LANDLORD HAS AND MAY
ENFORCE A SECURITY INTEREST IN THE COLLATERAL. THE COLLATERAL SHALL NOT BE
REMOVED WITHOUT THE CONSENT OF LANDLORD UNTIL ALL ARREARAGES IN RENT AND OTHER
SUMS OF MONEY THEN DUE TO LANDLORD HEREUNDER HAVE BEEN PAID AND DISCHARGED. ON
OR BEFORE THE COMMENCEMENT DATE, TENANT SHALL EXECUTE, AS DEBTOR, TWO OR MORE
FINANCING STATEMENTS, IN THE FORMS OF EXHIBIT"F" ATTACHED HERETO, TO PERFECT
THIS SECURITY INTEREST PURSUANT TO THE TEXAS UNIFORM COMMERCIAL CODE. LANDLORD
MAY AT ITS ELECTION AT ANY TIME FILE A COPY OF THIS LEASE AS A FINANCING
STATEMENT. LANDLORD, AS SECURED PARTY, HAS ALL OF THE RIGHTS AND REMEDIES
AFFORDED A SECURED PARTY UNDER THE TEXAS UNIFORM COMMERCIAL CODE IN ADDITION TO
AND CUMULATIVE OF THE LANDLORD'S LIENS AND RIGHTS PROVIDED BY LAW OR BY THE
OTHER TERMS AND PROVISIONS OF THIS LEASE.
Initial Initial
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ARTICLE XVI
SUBORDINATION AND ATTORNMENT
Landlord may transfer, assign, mortgage and convey in whole or in part
the Building or the Land, and any and all of its rights under this Lease, and
noting herein shall be construed as a restriction on Landlord's right to do so.
Tenant hereby subordinates this Lease and all rights of Tenant hereunder to the
lien of any mortgage or deed of trust now or hereafter placed against the
Premises, and all renewals substitutions and extensions thereof, and all such
liens are superior to and prior to this Lease. If a mortgagee or other
lienholder acquires the Premises as a purchaser at a foreclosure sale (any such
mortgagee or other lienholder or purchaser at a foreclosure sale being each
hereinafter referred to as the "Purchaser at Foreclosure"), then Tenant shall
(at the sole and absolute election of the Purchaser at Foreclosure) thereafter
remain bound to the same effect as if a new and identical Lease between the
Purchaser at Foreclosure, as Landlord, and Tenant, as Tenant, had been entered
into for the remainder of the Term of the ▇▇▇▇▇▇ in effect at the time of
foreclosure. Tenant shall, on request, execute any certificate or instrument
necessary desirable further to effect the subordination of this Lease to the
mortgage or deed of trust liens, or to confirm a lienholder's election to
continue the Lease in effect after foreclosure, as above provided. Tenant shall
attorn and pay rent to the Purchaser at Foreclosure as if that party were a
signatory to this Agreement. Tenant hereby constitutes and appoints Landlord as
Tenant's attorney-in-fact to execute any such certificate or instrument time to
subordinate its lien to this Lease and to Tenant's rights hereunder such that a
foreclosure of that lien will result in the purchase of the affected property
subject to the rights of Tenant hereunder, and Tenant has no right or ability to
unilaterally prevent that result. On an act or omission by Landlord which might
allow Tenant to terminate this Lease or to claim a partial or total eviction,
Tenant shall not exercise any such right until (i) it has given written notice
to the holder of any mortgage, deed of trust or other lien on the Premises, of
the act or omission, and (ii) a reasonable period for remedying the act or
omission has elapsed following the giving of notice.
ARTICLE XVII
TENANT ESTOPPEL LETTER
On the request of Landlord made from time-to-time with at least five
(5) business days' notice, Tenant shall execute and deliver to Landlord, or to a
mortgagee or prospective purchaser as directed by Landlord, a statement in
writing certifying that, among other things, (i) all of the construction work in
or relating to the Premises has been satisfactorily completed, (ii) Tenant has
accepted the work in or relating to, and is in possession of, the Premises,
(iii) the Lease is in full force and effect and has not been amended, modified
or superseded, (iv) there is no existing default on Landlord's or Tenant's part,
(v) rent has begun to accrue but has not been paid more than one month in
advance, (vi) Tenant has no knowledge of any pledge or assignment by Landlord of
the Lease or rentals due thereunder, except for the assignment to Landlord's
lenders. If any of the foregoing matters is not true at the time that Landlord
requests the written statement, then Tenant shall specify in detail any
differences.
ARTICLE XVIII
QUIET ENJOYMENT
Landlord has neither made nor authorized any other person (including
Broker or any other brokers) to make any representations, covenants or
warranties with respect to the Premises except as expressly set forth in this
Lease. Landlord warrants that it has full right and power to execute and perform
this Lease and to grant the estate demised herein and that Tenant, on payment of
the rent and performance of the covenants herein contained, shall peaceably and
quietly have, hold and enjoy the Premises during the full Term of the Lease,
subject to the rights of lienholders under Article XVI and if, Landlord is the
lessee under a ground lease, to the rights of a lessor under a ground lease.
ARTICLE XIX
NO IMPLIED WAIVER
Landlord's failure to insist at any time on the strict performance of
any covenant or agreement, or its failure to exercise any option, right, power
or remedy contained in this Lease, shall not be construed as a waiver or a
relinquishment thereof for the future. The waiver of or redress for any
violation of any term, covenant, agreement, or condition contained in this Lease
shall not prevent a subsequent act being a violation. Landlord shall be
considered to have waived a provision of this Lease only if specifically
expressed in a writing signed by Landlord. No expressed waiver shall affect any
matter other than the one specified in the waiver and only for the time and in
the manner specifically stated. Landlord's receipt of rent with knowledge of the
breach of a covenant or agreement contained in this Lease shall not be deemed a
waiver of the breach. No payment by Tenant or acceptance by Landlord of a lesser
amount than the monthly installment of rent due under this Lease shall be
considered other than on account of the earliest rent due hereunder, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction. Landlord may accept a
check or payment without prejudice to Landlord's right to recover the balance of
the rent due or to pursue any other remedy provided in this Lease.
ARTICLE XX
NOTICES
Each provision of this Lease or any applicable governmental laws,
ordinances, regulations, and other requirements with reference to the sending,
mailing or delivery of any notice, communication, request, reply or advice
(hereinafter severally and collectively called "notice"), or with reference to
the making of any payment by Tenant to Landlord, shall have been complied with
when and if the following steps are taken:
20.1 Payments Due Landlord. All rent and other payments required to
be made by Tenant to Landlord hereunder shall be payable to
Landlord in the County in which the Building is located, at
the address set out in Section 1.1, or at such other address
as Landlord specified from time to time. All such payments
shall, for the purposes of this Lease, notwithstanding the
provisions of Section 20.2 be deemed paid only when actually
received by Landlord. Except as may be provided otherwise in
this Lease, all amounts payable under this Lease shall be
payable in coin or currency of the United States of American
which at the time of payment is legal tender for public and
private debts.
Initial Initial
15
20.2 Notices. Any notice or document required to be delivered
hereunder, or any notice given by either party hereto to the
other party, shall be deemed to be delivered if actually
received or, whether or not received, on deposit in the United
States mail, postage prepaid, certified or registered mail
(with or without return receipt requested), addressed to the
appropriate party at its respective address set out in Section
1.1 or at such other address as that party has theretofore
specified in accordance with Section 20.3. Notice given in any
other manner is effective only if and when received by the
party to be notified. If a party intentionally avoids receipt
of notice, then notice is deemed received given by any means
by which services of process can be effected under applicable
law.
20.3 Change in Addresses. The parties hereto and their respective
heirs, successors, legal representatives, and assigns may from
time to time change their respective addresses by giving at
lease fifteen (15) days' written notice to the other party,
delivered in compliance with this Article XX.
ARTICLE XXI
SUBSTITUTION OF SPACE
21.1
ARTICLE XXII
MISCELLANEOUS
22.1 Attorney's Fees. If, as a result of any breach or default by
Tenant of its respective obligations under this Lease,
Landlord employs an attorney to enforce or defend any of its
right or remedies hereunder, and if Landlord prevails, than
Tenant shall pay to Landlord the reasonable attorney's fees
incurred by Landlord.
22.2 Broker's Commission. Tenant and Landlord hereby indemnify each
other, and shall hold each other harmless from and against,
all liabilities arising from any claim for a "broker's or
leasing agent's" commission, other than with respect to the
commissions which the indemnified party has agreed, in
writing, to pay, including any agreed to be paid to the
Broker(s) named in Section 1.1(q).
22.3 Force Majeure. If the performance by Landlord of any provision
of this Lease is delayed or prevented by any act of God,
strike, lockout, shortage of material or labor, restriction by
any governmental authority, civil riot, flood, and other cause
not within the control of Landlord, then the period for
Landlord's performance of the provision shall be automatically
extended for the same amount of time that Landlord is so
delayed or hindered.
22.4 Use of Language. Words of any gender used in this Lease
include any other gender, and words in the singular include
the plural, unless the context otherwise requires.
22.5 Captions. The captions or headings of paragraphs in this
Lease are inserted for convenience only, and shall not be
considered in construing the provisions hereof if any question
of intent arises.
22.6 Successors. The terms, conditions and covenants contained in
this Lease inure to the benefit of, and are binding on, the
parties hereto and their respective successors in interest,
assigns and legal representatives, except as otherwise herein
expressly provided. All rights, powers, privileges,immunities
and duties of Landlord under this Lease, including without
limitation, notices required or permitted to be delivered by
Landlord to tenant hereunder, may, at Landlord's option, be
exercised or performed by Landlord's agent attorney.
22.7 Sublease. If this Lease is in fact a sublease, then Tenant
accepts this Lease subject to all of the terms and conditions
of the lease under which Landlord holds the Premises as
lessee. Tenant shall do no act or thing that would constitute
a violation by Landlord of its obligation under such lease.
Initial Initial
16
22.8 Severability. If any provision of this Lease is finally held
by a court of competent jurisdiction to be invalid or
unenforceable, then the invalid or unenforceable provision
shall be deemed severed from this Lease and the validity and
enforceability of the remaining provisions of this Lease shall
be unaffected.
22.9 Charges For Services. Any amount payable by Tenant to Landlord
hereunder is considered to be rent due and shall be included
in any lien for rent. The non-payment of any such amounts due
is an Event of Default hereunder giving rise to Landlord's
exercise of any remedies available hereunder or at law.
22.10 Personal Liability. Landlord's liability to Tenant for any
default by Landlord under this Lease is limited to Landlord's
interest in the Building and the Land, and Tenant agrees to
look solely to Landlord's interest therein for the recovery of
any judgment against Landlord, it being intended that neither
Landlord nor any of its partners, shareholders, agents,
affiliates, officers or directors shall be personally liable
for any judgment or deficiency.
22.11 Damage From Certain Causes. Landlord is not liable or
responsible to Tenant for any loss or damage to any property
or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order,
requisition, or order of governmental body or authority, or
for any damage or inconvenience that may arise through repair
or alteration of any part of the Land, the Building or the
Premises, or a failure to make any such repairs.
22.12 Notice And Cure to Landlord and Mortgagee. On any act or
omission by Landlord which might give, or which Tenant claims
or intends to claim gives. Tenant the right to damages from
Landlord or the right to terminate this Lease by reason of a
constructive or actual eviction from all or part of the
Premises, or otherwise, Tenant shall not ▇▇▇ for damages or
attempt to terminate until it has given written notice of the
act or omission to Landlord and to the holder(s) of the
indebtedness or other obligations secured by any mortgage or
deed of trust affecting the Premises, and a reasonable period
of time for remedying the act or omission has elapsed
following the giving of the notice, during which time Landlord
and the lienholder(s), or either of them, their agents or
employees, may enter upon the Premises and do therein whatever
is necessary to remedy the act or omission. During the period
after the giving of notice and during the remedying of the act
or omission, the Base Rental payable by Tenant shall not be
abated and apportioned except to the extent that the Premises
are untenantable.
22.13 Governing Law. This Lease and the rights and obligations of
the parties hereto shall be interpreted, construed, and
enforced in accordance with the local laws of the State of
Texas.
22.14 No Reduction of Rental. Except as otherwise expressly and
unequivocally provided in this Agreement, Tenant shall not for
any reason withhold or reduce the amounts payable by Tenant
under this Lease, it being understood that the obligations of
Landlord hereunder are independent of Tenant's obligations. In
this regard, if Landlord commences any proceedings against
Tenant for nonpayment of rentals or any other sum due and
payable by Tenant under this Lease, Tenant shall not interpose
a counterclaim or other claim against Landlord of claim
against Landlord in such proceedings, then in addition to any
other lawful remedy of Landlord, on motion of Landlord the
counterclaim or other claim asserted by Tenant shall be
severed out of the proceedings instituted by Landlord and
those proceedings may proceed to final judgment separately and
apart from and without consolidation with or reference to the
status of the counter claim or any other claim asserted by
Tenant. Furthermore, if Landlord is required by a governmental
authority to reduce energy consumption, to impose a parking or
similar charge with respect to the Building, to restrict the
hours of operation of, limit access to or reduced parking
spaces available at the Building, or take other limiting
actions, then Tenant is not entitled to rent abatement or to
terminate this Lease.
22.15 No Partnership. Notwithstanding the fact that a portion of the
rent reserved under this Lease may be a percentage of Tenant's
Gross Sales, and notwithstanding anything else to the
contrary, Landlord is not and under no circumstances shall it
be considered to be a partner of Tenant or engaged in a joint
venture with Tenant.
22.16 No Oral Changes. This Lease may not be changed or terminated
orally, but only in writing executed by both parties hereto.
22.17 ENTIRETY: NO REPRESENTATIONS AND WARRANTIES. THIS LEASE,
INCLUDING ONLY THE ATTACHMENTS HERETO SPECIFIED IN SECTION
22.18, EMBODIES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND
SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, INCLUDING
ANY LETTERS OF INTENT, IF ANY, RELATING TO THE SUBJECT MATTER
HEREOF. LANDLORD HAS NOT MADE, AND TENANT MAY NOT RELY ON, ANY
REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE BUILDING,
PREMISES OR OTHERWISE, EXPRESSED OR IMPLIED, EXCEPT AS STATED
IN THIS LEASE. IN PARTICULAR, LANDLORD HAS NOT AUTHORIZED ANY
AGENT OR BROKER TO MAKE A REPRESENTATION OR WARRANTY
INCONSISTENT WITH THE TERMS OF THIS LEASE AND TENANT MAY NOT
RELY ON ANY SUCH INCONSISTENT REPRESENTATION OR WARRANTY.
[THIS SPACE INTENTIONALLY LEFT BLANK]
22.18 Attachments. If the box next to any of the following documents
is marked, then the document is attached to this Lease, and
it, as well as all drawings and documents prepared pursuant
thereto, are a part of this Lease:
Exhibit "A" - Floor Plan
Exhibit "B" - Legal Description
Exhibit "C" - Operating Cost Computation
Exhibit "D" - Rules
Exhibit "E" - Guaranty of Lease Agreement PURPOSELY OMITTED
Exhibit "F" - Financing Statements PURPOSELY OMITTED
Exhibit "G" - Janitorial Services USED FOR GENERAL STANDARD
Exhibit "H" - Special Provisions
Initial Initial
17
Rider 101 - Work Letter
Rider 201 - Parking Agreement
Rider 301 - Option to Extend
THIS LEASE is executed and effective this 15th day of April, 1997.
LANDLORD: MISSION LIFE INSURANCE COMPANY
a Texas Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President & C.E.O.
TENANT: WORLDPORT COMMUNICATIONS, INC.
an Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President & CEO
Initial Initial
18
RIDER 101
ATTACHED TO AND MADE A PART OF
OFFICE LEASE AGREEMENT
Work Letter
Landlord shall have the carpet cleaned and the paint touched up as needed in the
Leased Premises described herein, not to exceed fifty cents ($ .50) per net
rentable square foot of lease area.
RIDER 101A-1
Initial Initial
RIDER 201A
ATTACHED TO AND MADE A PART OF
OFFICE LEASE AGREEMENT
PARKING AGREEMENT
1. (a) Parking Spaces - Tenant's Obligation. Landlord shall permit
Tenant to use, and Tenant shall pay Landlord for, at all times during
the term of this Lease, parking spaces associated with the Building in
the following quantities and for the Basic Parking Charge (herein so
called ) set forth below for each parking space:
Reserved
Number of Spaces Basic Parking
Charge per Space
ONE ( 1 ) $ -0- per month
-------------------------------- --------------- ----------------
and
THREE ( 3 ) $ 25.00 per month
-------------------------------- ---------------- -------------------
(b) Parking Spaces - Tenant's Option. In addition to the parking
spaces, if any, that Tenant is obligated to pay for under paragraph (a)
above, Landlord shall permit Tenant to use, at its option, additional
spaces such that the total number of spaces available to Tenant from
time to time equals one space for each 429 square feet of Area of the
Premises. Tenant shall pay the Basic Parking Charge for each parking
space used by it pursuant to this paragraph (b).
2. Basic Parking Charge. Tenant shall pay to Landlord during the term of
this Lease, as additional rental hereunder, the Basic Parking Charge
specified above for each of the parking spaces (i) required to be paid
for pursuant to paragraph 1(a) above, and (ii) actually used by Tenant
pursuant to paragraph 1(b), such amount to be payable monthly advance
on the first day of each and every calendar month during the term of
this Lease. The applicable Basic Parking Charge may be adjusted
periodically (but no more often than every six (6) months throughout
the Term of this Lease beginning on the first day of January of the
first Lease Year after the date on which this Lease commences (and on
the first day of each July and January thereafter) to equal the then
prevailing market rate for parking spaces. In no event shall any
adjustment in the prevailing market rate decrease the Basic Parking
Charge below that in effect in the immediately preceding Lease Year.
A pro rata portion of the Basic Parking Charge shall be payable for the
first partial calendar month if the Term of this Lease commences on a
date other than the first day of a calendar month. Default by Tenant in
the payment of any Basic Parking Charge is a default in the payment of
rent, giving to Landlord all rights and remedies available to it in
such event.
3. Other Parking Provisions.
(a) Landlord may, at its option, provide a reasonable means of
controlling access to the Parking Areas.
(b) Landlord may relocate any parking areas or spaces from time to
time, and may also use portions of the Parking Area outside of the
designated areas for free, visitor, or other parking needs of the
Landlord.
(c) Landlord may made, modify and enforce rules and regulations
relating to the parking of automobiles in the Parking Area, and Tenant
shall observe those rules and regulations. Landlord also may change the
size of the Parking Area.
(d) Tenant is responsible for ensuring that its employees and agents do
not park their automobiles in visitor parking areas or spaces, if any,
established by Landlord, or in parking spaces or areas, if any,
reserved or designated by Landlord for the use of other tenants of the
Building, or for other purposes (such as for retail tenants) so long as
such designation does not result in there being fewer than the number
of spaces in the Parking Area specified in paragraph 1(b) above
available for Tenant's use. Tenant shall furnish to Landlord the state
automobile license numbers of automobiles of Tenant and its employees
who will occupy Tenant's parking spaces from time to time, within five
(5) days from Tenant's receipt of written notice from Landlord
requesting the information.
(e) Landlord is not liable or responsible for any loss of or to any
automobile or vehicle or equipment or other property therein, or damage
to property or injury to person, unless the loss, damages, or injury is
proximately caused by the gross negligence of Landlord or its
employees.
(f) Landlord may, in its sole discretion form time to time, designate
parking spaces in any parking areas for exclusive use of specified
tenants of the Building. The location and the number of those spaces
shall be determined by Landlord in its sole discretion, and Landlord
may from time to time change the location and number of those spaces.
(g) This Parking Agreement is not deemed to create a bailment between
the parties, it being agreed and understood that the relationship
created between Landlord and Tenant with regard to the parking spaces
and Parking Area is that of licensor and licensee, respectively.
(h) If fifty percent (50%) or more of the Parking Area is damaged by
fire or other casualty, or if the insurance proceeds payable as a
result of the casualty to the Parking Area are applied by Landlord's
mortgagee to Landlord's mortgage debt against the Building and/or
Parking Area, or if there is a material, uninsured loss to the Parking
Area, then Landlord may, at its option, terminate this Parking
Agreement by notifying Tenant in writing of the termination within
thirty (30) days of the date of the casualty. If this Parking Agreement
is not so terminated by Landlord, then Landlord shall either (i)
proceed to restore the Parking Area and provide Tenant with alternative
parking during the restoration, or (ii) not restore the Parking Area,
but provide Tenant with alternate parking throughout the remainder of
the Term of this Parking Agreement.
RIDER 201A-1
Initial Initial
RIDER 301A
ATTACHED TO AND MADE A PART OF
OFFICE LEASE AGREEMENT
Option to Extend
Tenant has ONE ( -1- ) option(s) (the "Option") to renew and to extend
the Term of this Lease for twenty-four ( 24 ) months each [(the "Renewal
Term")], that Option(s) to follow consecutively on the expiration of the Term of
this Lease, provided that at the time that the Option to renew is exercised,
this Lease is in full force and effect and Tenant is not in default hereunder.
The Option shall be exercised by Tenant's giving to Landlord written notice of
its intention to renew and extend the Term of this Lease at least six (6 months)
before the expiration date of the initial Term [or Renewal Term, as
appropriate,] of this Lease. The renewal and extension of this Lease for the
Renewal Term shall be on and under the same covenants, agreements, terms,
provisions, and conditions as are contained herein for the initial Term of the
Lease, including those providing for adjustments to the rent during the Renewal
Term; provided, however, that the Base Rental for the first year of the renewal
Term shall be at $14.00 per net rentable square foot per year and the second
year at $15.00 per net rentable square foot per year. Any assignment or
subletting by Tenant in violation or breach of Section 11.1 of this Lease shall
terminate the Option(s) of Tenant set forth herein. Any termination of this
Lease during the initial Term shall terminate all rights of renewal and
extension set forth in this Rider 301A.
At any time up to five (5) business days before the date by which
Tenant is required to exercise a renewal Option, Tenant may request in writing a
quote from Landlord of the Base Rental, and other amounts payable as described
in Section 1.2. that will be applicable for the next Renewal Term. Landlord
shall respond to a timely written request by providing Tenant a written quote of
the Base Rental within three (3) business days after Landlord's receipt of
Tenant's request. In addition, Landlord, may (but is not obligated to) provide
to Tenant at any time a quote of the Base Rental for a Renewal Term.
RIDER 301A-1
Initial Initial
EXHIBIT "A"
ATTACHED TO AND MADE A PART OF
OFFICE LEASE AGREEMENT
Floor Plan of Premises
[MAP]
EXHIBIT "B"
ATTACHED TO AND MADE A PART OF
OFFICE LEASE AGREEMENT
Legal Description of the Land
1.5175 acres of land (66,102 square feet), more or less, being Lot Two (2) of
BALI PARK SUBDIVISION, recorded in Volume 224, Page 50 of the ▇▇▇▇▇▇ County Map
Records, Hedwig Village, ▇▇▇▇▇▇, Texas ; being more particularly described by
metes and bounds as follows, to wit:
BEGINNING at a 5/8 inch iron rod marking the Northwest corner of the BALI PARK
SUBDIVISION, being the Northwest corner of the herein described tract, on the
South line of Katy Freeway (I.H. 10) right-of-way;
THENCE South 89 degrees 22 minutes, 26 seconds, East, 148.97 feet along the
North line of BALI PARK SUBDIVISION and the South line of Katy Freeway
right-of-way to a 5/8 inch iron rod found for the Northeast corner of Lot 2,
also being the Northwest corner of Lot 1;
THENCE South 00 degrees 13 minutes, 20 seconds, East 444.83 feet along the
common line for Lot 1 and Lot 2 being the centerline of a private street known
as Bali Chase to a 5/8 inch iron rod marking the Southeast corner of Lot 2 and
the Southwest corner of Lot 1 being on the North line of Lot 3;
THENCE North 89 degrees 22 minutes, 26 seconds, West, 148.28 feet along the
common line between Lot 2 and Lot 3 to a 5/8 inch iron rod marking the Northwest
corner of Lot 3 and the Southwest corner of Lot 2;
THENCE North 00 degrees 18 minutes, 40 seconds, West, 444.84 feet along the West
boundary of BALI PARK SUBDIVISION to the POINT OF BEGINNING.
EXHIBIT B-2
Initial Initial
EXHIBIT "C"
ATTACHED TO AND MADE A PART OF
OFFICE LEASE AGREEMENT
Operating Cost Computation
A. Operating Cost Examples. The following are, without limitation,
examples of costs included in the computation of Operating Costs:
(1) all taxes, assessments, and other governmental charges, whether
federal, state, county or municipal, and whether they be by taxing
districts or authorities presently taxing the Premises and Building or
by others, subsequently created or otherwise, and any other taxes and
assessments levied or assessed against the Land, the Building and other
associated improvements situated on the Land, and the Building
Facilities, including interest on installment payments, and including
all costs and fees (including attorney's fees) incurred by Landlord in
contesting or negotiating with taxing authorities;
(2) all reasonable costs and expenses of operating, maintaining and
repairing (including replacing components of) Building Facilities,
including elevators, escalators, heat, ventilation, and air
conditioning systems, and all other mechanical or electrical systems
serving the Building;
(3) all reasonable costs and expenses incurred in cleaning the
Building;
(4) costs of all utilities for the Project, including without
limitation, the cost of water and power, heating, lighting, air
conditioning, ventilating and sewer rents or charges for the Project;
(5) all supplies and materials reasonably used in the operation and
maintenance of the Project;
(6) costs of all insurance relating to the Project, including the cost
of casualty and liability insurance applicable to the Project and
Landlord's personal property used in connection therewith;
(7) amortization of costs of or rental expenses for any machinery,
equipment or other improvements installed by Landlord to conform to any
law, ordinance, rule, regulation, or order of any governmental
authority having jurisdiction over the Project which was enacted or
promulgated after construction on the Project began, or for the purpose
and in reasonable anticipating or reducing energy costs in the Project
or other Operating Costs;
(8) expenses and fees (including attorney's fees) incurred in
contesting the validity or applicability of any governmental enactments
that may affect Operating Costs;
(9) general maintenance costs and expenses reasonably incurred in
connection with the Project (including, but not limited to, security,
maintenance of all exterior and interior landscaping, garbage and other
waste removal, non-tenant alterations and decorations, heating and air
conditioning repairs and all labor utilized and supplied consumed with
respect to any general Project maintenance);
(10) janitorial service and window cleaning for the Building, including
the Common Areas and Service Areas (including materials, supplies,
Building standard light bulb, equipment and tools therefor and rental
and appreciation costs related to the foregoing), or contracts with
third parties to provide the same;
(11) the cost of providing security to the Building and Parking Area;
(12) reasonable management costs of the Project (including, but not
limited to, any management fee payable by Landlord with respect to the
Project, audit and accounting expenses and legal fees), and Landlord's
overhead expenses directly attributable to Project management; and
13) wages, salaries, fees, pension benefits, taxes, unemployment and
disability insurance, worker's compensation insurance, social security
benefits and any other expenses reasonably incurred with respect to all
personnel engaged in the operation, maintenance, leasing or security of
the Project. The term "personnel" shall include, but not be limited to,
employees such as superintendents, engineers, electricians, clerks,
mechanics,helpers, security officers. ▇▇▇▇▇▇, cleaners, window washers,
as well as contract laborers performing services with respect to the
Project.
B. Operating Cost Exclusions. The following are, without limitation,
examples of costs excluded from the computation of Operating Costs:
(1) leasing commissions, attorney's fees, costs and disbursements
and other expenses incurred in leasing, renovating or
improving space for tenants or prospective tenants of the
Building;
(2) costs incurred by Landlord in the discharge of its obligations
under the Work Letter;
(3) costs (including permit, license and inspection fees) incurred
in renovating or otherwise improving or decorating, painting
or redecorating space for tenants of vacant space;
(4) Landlord's costs of any services sold to tenants for which
Landlord is entitled to be reimbursed by such tenants as an
additional charge or rental over and above the Base Rental and
Operating Costs payable under the lease with the tenant or
other occupant;
(5) any depreciation and amortization on the Building, except as
expressly permitted herein;
(6) interest on debt or amortization payments on any mortgages or
deeds of trust or any other debt for borrowed money;
(7) all items and services for which Tenant reimburses Landlord
outside of Operating Costs or pays third person or which
Landlord provides selectively to one or more tenants or
occupants of the Building (other than Tenant) without
reimbursement;
(8) advertising and promotional expenditures; and
EXHIBIT C-2
Initial Initial
(9) repairs or other work occasioned by fire, windstorm or other
work paid for through insurance or condemnation proceeds.
b:\▇▇▇▇▇.▇▇ EXHIBIT C-2
Initial Initial
EXHIBIT "D"
ATTACHED TO AND MADE A PART OF
OFFICE LEASE AGREEMENT
Rules
1. Tenant, its agents, servants,and employees shall not block or obstruct
any of the entries, passages, doors, hallways or stairways of the
Building, or place, empty or throw any rubbish, litter, trash or
material of any nature into those areas, or permit those areas to be
used at any time except for ingress and egress of Tenant, its agents,
servants, employees, visitors or invitees. No tenant and no employee,
agent or invitee of a tenant shall go onto the roof of the Building.
2. Tenant shall refer all contractors, contractor's representatives and
installation technicians rendering any service to Tenant to Landlord
for Landlord's supervision, approval and control before performance of
any contractual service. This provision applies to all work performed
in the Building, including, without limitation, installation of
telephones, telegraph equipment, electrical devices and attachments and
installations of any nature affecting floors, walls woodwork, trim,
windows, ceilings, equipment or any other physical portion of the
Building.
3. Movement in and out of the Building of furniture, office equipment or
other bulky materials, or movement through Building entrances or
lobbies, or dispatch or receipt by Tenant of any merchandise or
materials which requires use of elevators or stairways shall be
restricted to reasonable hours designated by Landlord. All such
movement shall be under the supervision of Landlord and in the manner
agreed between Tenant and Landlord by prearrangement before performance
of any movement. Prearrangement initiated by Tenant shall include
determination by Landlord, and subject to Landlord's decision and
control, of the time, method and routing of movement, and limitations
imposed by safety or other reasonable concerns which may prohibit any
article, equipment or any other item from being brought into the
Building. Tenant shall assume all risk as to damage to articles moved
and injury to persons or public engaged or not engaged in the movement,
including equipment, property and personnel of Landlord if damaged or
injured as a result of acts by Tenant or Tenant's employees, agents or
contractors in connection with carrying out this service for Tenant
from the time of entering property to completion of work; and Landlord
is not liable for any such act, or any damage or loss to any of the
property or persons resulting from any such act in connection with such
service performed for Tenant, and Tenant hereby agrees to indemnify,
defend and hold Landlord, harmless from and against any and all such
damage, injury or less, including attorney's fees arising with respect
thereto.
4. No signs, advertisements or notices are allowed in any form on windows
or doors inside or outside the Premises or any other part of the
Building, and no signs except in uniform location and uniform styles
fixed by Landlord are permitted on exterior identification pylons, if
any, in the public corridors or on corridor doors or entrances to the
Premises. All signs shall be contracted for by Landlord for Tenant at
the reasonable rate fixed by Landlord form time to time, and Tenant
shall be billed and pay for such service accordingly on demand.
Following move-in, no nails, hooks or screws shall be driven or
inserted in any part of the Building (other than for the handling of
pictures, diplomas or other items of a like nature), except by the
maintenance personnel of the Building, nor shall any part be defaced by
tenants.
5. No draperies, shutters, or other window coverings shall be installed on
exterior windows or walls or windows and doors facing public corridors
without Landlord's written approval. Landlord may require installation
and continued use of uniform window coverings for such windows.
6. No portion of the Premises or any other part of the Building may at any
time be used or occupied as sleeping or lodging quarters.
7. Tenant shall not place, install or operate in the Premises or in any
other part of the Building any engine, stove or machinery, or conduct
mechanical operations or ▇▇▇▇ thereon or therein (except for coffee
machines, microwave ovens and other breakroom appliances of a
residential nature), or place or use in or about the Premises any
explosive, gasoline, kerosene, oil, acids, caustics or any other
inflammable, explosive or hazardous materials, fluid or substance
without the prior written consent of Landlord. The preceding sentence
does not prohibit the storage of photocopier or other typical office
supplies within the Premises.
8. Any directory of the Building provided by Landlord shall be exclusively
for the display of the name and location of tenants in the Building,
and Landlord may exclude any other names therefrom and may limit the
number of listings per tenant. Tenant shall pay Landlord's standard
charge for Tenant's listing thereon and for any changes by Tenant.
9. Landlord is not responsible for lost or stolen personal property,
equipment, money or any article taken from the Premises or the
Building, whether or not any such area is locked against entry.
10. Tenant shall keep, and shall cooperate with Landlord and Landlord's
employees and agents in keeping, the Premises in a clean and tidy
condition at all times.
11. No curtains, blinds or screens may be attached to or hung, or used in
connection with, any window or door of the Premises without the prior
written approval of Landlord as to the quality, type, design, color and
manner of attaching the same. No protective screen, grating, shade or
other enclosing device may be used on the portion of the Premises
abutting the Common Areas, courts, atria or public corridors without
Landlord's prior written approval as to the quality, type, design,
color and manner of attaching the same, to the end that all storefronts
facing those Common Areas shall be compatible in appearance. Tenant
shall regularly clean, repair and, if necessary in Landlord's
reasonable judgment, replace any awnings, used in connection with the
Premises, so that such awnings always convey the image of a first-class
establishment.
12. Tenant, its agents, servants or employees shall not bring into the
Building or the Premises or keep on the Premises any dog, bird or
animal. Tenant, its agents, servants or employees shall not bring into
the Building or keep on the Premises any bicycle or other vehicle
without the prior written consent of Landlord.
13. No additional locks shall be placed on any door in or providing access
to the Premises without the prior written consent of Landlord. A
reasonable number of keys to the Premises and security access cards for
the Building (if that method is used) will be furnished by Landlord and
neither Tenant, its agents, servants, or employees, shall have any
duplicate keys made. Landlord may at all times keep a pass key to the
Premises. All keys shall be returned to Landlord promptly on
termination of this Lease. Tenant shall pay a reasonable amount fixed
by Landlord from time to time for each key and security access card
issued by Landlord in replacement of one previously issued.
EXHIBIT D-2
Initial Initial
14. Tenant shall give Landlord prompt notice of all accidents to or defects
in air conditioning equipment, plumbing, electrical facilities or any
part of appurtenance of the Premises.
15. Landlord will not permit entrance to Tenant's offices by use of pass
keys controlled by Landlord to any person at any time without
permission by Tenant, except employees, contractors, or service
personnel directly supervised by Landlord or employees of the United
States Postal Service.
16. Employees of Landlord shall not receive or carry messages for or to any
Tenant or other person, and shall not contract with or render free or
paid services to any Tenant or Tenant's agents, employees or invitees.
If Landlord's employees perform any such services, then those employees
are solely the agents of Tenant regardless of whether or how payment is
arranged for services, and Landlord is expressly relieved form any all
liability in connection with any such services and any associated
injury or damage to person or property.
17. Landlord may exclude or expel from the Building any person who, in the
judgment of the Landlord, is intoxicated or under the influence of
liquor or drugs, or who in any manner acts in violation of the Rules of
the Building.
18. Tenant shall not use the plumbing facilities of the Premises for any
purpose other than that for which they were constructed. Tenant shall
not dispose of any substances in such facilities which may clog, erode,
or damage the plumbing pipes, lines, or conduits of the Building
whether through the utilization of "garbage disposal" units or
otherwise. Tenant shall pay for all damages resulting to any fixtures
or appliances from misuse by Tenant, or Tenant's agents or employees,
and Landlord is in no way responsible therefor.
19. Landlord may prescribe the weight and position of safes, computers and
other heavy equipment which shall, in all cases, in order to distribute
their weight, stand on supporting devices approved by Landlord. All
damage done to the Premises or to the Building by placing in or taking
out any property of Tenant unless caused by the negligence or wilful
misconduct of Landlord or Landlord's employees or agents, or done by
Tenant's property while in the Premises or the Building, shall be
repaired immediately at the sole expense of Tenant.
20. To ensure orderly operation of the Building, no ice, minerals other
water, towels, newspapers, etc. shall be delivered to the Premises
except by persons approved by Landlord in advance in writing.
21. Landlord may refuse admittance to the Building from 7 p.m. to 7 a.m.
daily, or on Sundays or on legal holidays, to any person or persons who
cannot furnish satisfactory identification, or to any person or persons
who, for any other reason in Landlord's judgment, should be denied
access to the Premise. Landlord, for the protection of the tenants and
their effects, may prescribe hours and intervals during the night, on
Sundays and holidays, when all persons entering and departing the
Building are required to enter their names, the offices to which they
are going or form which they are leaving, and the time of entrance or
departure in a register provided for that purpose by Landlord.
22. Canvassing, soliciting and peddling in the Building are prohibited, and
each Tenant shall cooperate to prevent the same.
23. Alternations and miscellaneous job orders shall at all times be
directed to the Building manager's office to facilitate the orderly and
otherwise proper processing of that work in accordance with any
covenants of the Lease applicable thereto.
24. Landlord may waive any one or more of these Rules for the benefit of
any particular tenant or tenants, but no waiver by Landlord shall be
construed as a waiver of such Rules in favor of any other tenant or
tenants, or prevent Landlord form thereafter enforcing all Rules
against any or all of the tenants of the Building.
25. Landlord may rescind or amend any of these Rules and make other and
further reasonable rules as in its judgment are from time to time
necessary and desirable.
26. These Rules are in addition to, and shall not be construed to in any
way modify, alter, or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of Premises in the Building.
27. Standard Hours of Operation are: Monday - Friday 7:00am - 6:00pm,
Saturday 8:00am - 1:30pm, closed on all Federal Holidays.
EXHIBIT D-2
Initial Initial
EXHIBIT "G"
ATTACHED TO AND MADE A PART OF
OFFICE LEASE AGREEMENT
Janitorial Services
I. PREMISES
A. The following GENERAL cleaning shall be performed nightly:
1. Empty and wipe clean waste basket and remove
contents to disposal area.
2. Empty and clean all ash trays.
3. Vacuum all rugs and carpeted areas.
4. Dust furniture, files, fixtures and all low reach
areas.
5. Remove marks and smudges from vertical surfaces.
6. Clean all water fountains.
7. Sweep all private stairways; vacuum if carpeted.
8. Damp mop spillage in office and public areas as
required.
9. Dust all telephones as necessary.
10. Clean doors, door knobs, light switches and other
door areas of frequent usage.
B. The WASH ROOMS shall be cleaned nightly as follows:
1. Damp mop.
2. Scrub floors as necessary.
3. Clean all mirrors, bright work and enameled surfaces.
4. Wash and disinfect all fixtures.
5. Empty all receptacles and remove refuse for disposal.
6. Fill toilet issue, soap and towel dispensers.
7. Clean flushometers and other metal work as required.
8. Wash and polish all wall partitions, tile walls, and
enamel surfaces from trim to floor as required.
9. Vacuum all louvers and ventilating grilles, and dust
light fixtures as required.
C. The FLOORS shall be cleaned with the frequency indicated:
1. Sweep and buff ceramic tile, marble or terrazzo
floors nightly and wash or scrub as necessary, not
less than monthly.
2. Sweep vinyl asbestos floors and bases nightly.
3. Wax and buff tile floors monthly and strip as
necessary but not less frequently than annually.
D. GLASS shall be cleaned as follows:
1. Clean all perimeter windows as required, but no less
than three times a year, inside and out.
2. Wipe clean all metal during this cleaning.
E. HIGH DUSTING shall be performed every four months, as follows:
1. Dust and wipe clean all closet shelving when empty.
2. Dust all picture frames, charts, graphs, etc.,
monthly.
3. Damp dust all air conditioning diffusers.
4. Dust the exterior surfaces of lighting fixtures.
5. Dust venetian blinds as necessary.
F. The following shall be done DAILY:
1. Check all washrooms for toilet tissue and sanitary
napkins replacements.
2 Clean all "Security Rooms" (those rooms used for
storage of confidential material which cannot be
opened with a Building master key) as necessary.
It is understood that no services of the character herein provided for shall be
performed on Saturdays, Sundays or holidays.
II. OTHER AREAS OF THE BUILDING
A. Entrance Lobby and Public Areas:
1. Sweep and wash lobby and entrance vestibule floors
nightly and machine scrub floors as necessary. Wax,
buff, apply sealer or finished as directed by
building manager, but not less than once a week.
2. Clean sweep public, elevator lobby, and corridor
flooring nightly. Wash stone, ceramic tile, marble or
terrazzo flooring once per week (machine scrub floors
as necessary). Resilient flooring shall be maintained
once vacuumed nightly and shampooed as necessary.
3. Wipe down all metal surfaces in the lobby, building
exterior and polish as required once a month at a
minimum.
4. Dust all lobby and public corridor walls nightly and
wash as required.
5. High dust and wash all electrical and air
conditioning fixtures at least once per month in
elevator lobbies, corridors, and entrance lobby.
6. Dust mail depository and clean mail chute glass
throughout the Building, nightly. Telephone booths
shall be swept daily and the glass cleaned nightly.
7. Clean cigarette urns, screen sand and supply sand as
necessary on a daily basis.
EXHIBIT G-2
Initial Initial
8. Clean entrances and lobby doors at least once per
day. On the first rental floor, clean all office
doors as necessary to remove dirt and finger marks.
9. Wash all rubber mats and clean wool or nylon runner
nightly as necessary if used during the day.
B. Elevators
1. Clean saddles, doors and frames of elevator lobby
nightly.
2. Clean saddles and frames on floors above lobby once
per week and vacuum dirt from door tracks nightly.
3. Clean inside surfaces of elevators cabs nightly.
4. Clean elevator pits weekly.
5. Wash and wax resilient floor in elevators nightly.
NOTE: If carpets are installed, regular carpet care shall be provided in lieu
of item 5. Shampoo elevator carpets as necessary including spares.
C. Public Stairwells
1. Check all public stairwells throughout the Building
and keep in clean condition, sweep daily and mop as
necessary, but at least once per week.
2. Inspect and keep clean fire hoses, extinguishers and
similar equipment and report any discrepancies to the
Building Manager and enter in log book.
3. Dust all railings, etc., weekly and high dusting
quarterly.
D. Building Service Areas
1. Hose all ramps, loading docks, truck, areas, etc.,
daily and scrub if necessary, or as instructed by
Building Manager.
2. Clean mechanical equipment areas, electric and
telephone closets as often as necessary, or as
instructed by Building Manager.
3. Keep elevator areas in a neat, clean condition at all
times. Keep wastepaper, cardboard and rubbish, etc.,
stored in an approved area. Clean the floors, walls
and doors, etc., as necessary.
E. Exterior Cleaning
Maintain entire building exterior, including metal work,
entrance doors, building trim and exterior window frames and
mullions. Clean standpipes, and sprinkler connections and hose
bibs.
F. Sidewalk Areas
1. Sweep sidewalk daily, weather permitting.
2. Maintain sidewalks in a safe condition.
3. Keep in clean condition and water daily all planting
areas.
G. Window Cleaning
1. Clean all windows on the outside and inside from main
floor to the roof as required, but not less than
three times a year as directed by Building Manager.
Wipe clean window frames and associated metal at the
same time.
2. Clean directory glass daily.
3. Clean all mail chute glass as required.
4. Reports of areas cleaned shall be turned in to the
Building manager's office daily.
H. Pest Control
1. The public spaces throughout the Building shall be
kept under pest control treatment at least monthly.
2. All service shall be rendered by licensed Board of
Health operators, with special emergency calls on
request at no extra charge.
EXHIBIT G-2
Initial Initial
EXHIBIT "H"
ATTACHED TO AND MADE A PART OF
OFFICE LEASE AGREEMENT
SPECIAL PROVISIONS
1. BASE RENTAL.
Lessee shall pay monthly installments of Base Rental as outlined in the
following shcedule:
Months Monthly Base Rental Square Feet/NRA
4/97 $1,466.67 4,272 (Based on 22 days)
5/97 - 7/97 $2,000 4,272
8/97 - 10/97 $3,000 4,272
11/97 - 3/98 $3,916 4,272
4/98 - 3/99 $4,094 4,272
4/99 - 3/00 $4,628 4,272
Lessor shall have the option to increase the Base Market Rental to a
fair market rental as reasonably determined by Lessor in its sole
discretion (Market Adjustment to Base Rental) at any time during this
lease Term by providing Lessee with written notice ("Notice").
If Lessor exercises this adjustment to Base Rental, Lessor shall
compensate Lessee for such adjustment by paying to Lessee
simultaneously with the Notice, an amount equal to the amount of the
difference between (a) the increased Base Rental over the remainder of
the term, and (b) the negotiated rental rate contained in this Lease,
which payment shall be made simultaneously with the delivery of the
Notice.
2. RIGHT OF FIRST REFUSAL.
Tenant shall have the continuing right of first refusal on the
contiguous space(s) remaining in suite 200, approximately 1,558 net
rentable square feet, and suites 270, 260, and 260a (as shown on H-1
attached). Landlord also agrees not to market the 1,558 square feet in
suite 200 and/or suite 270 prior to 7/1/97 in order to allow Tenant
immediate availability of such space for its intended expansion. Should
Landlord have a bonafide offer to lease any of the suites denoted on
H-1, Landlord shall notify Tenant by written notice, including the
terms of such offer, and Tenant shall have five (5) business days to
elect to exercise its right of first refusal on said space under the
same terms and conditions of such bonafide offer. Should Tenant elect
to exercise this right, Landlord shall prepare the necessary lease
documentation and Tenant shall execute same within thirty (30) days of
its election.
3. APPROVED ASSIGNEE/SUBLESSEE
Tenant shall have the right without consent of Landlord, to sublease
all or any portion of the Premises or to assign its right under this
Lease, including all renewal options, expansion options, preferential
rights and rights pertaining to parking (i) to any Affiliate of Tenant,
(ii) to any successor entity to Tenant created by merger,
consolidation, liquidation or reorganization, or (ii) to any entity
which acquires ownership of all or substantially all of the assets of
Tenant, whether or not there is a change in Tenant's name. Tenant shall
give Landlord immediate written notice of any such sublease or
assignment. For the purpose of definition in this area, Affiliate shall
mean any of the following which have a financial strength equal to or
greater than Tenant; (i) a subsidiary of Tenant in which Tenant owns
directly at least fifty-one percent (51%) of the voting securities and
voting interest, (ii) a corporation, partnership, personal estate,
trust, or any combination of the foregoing, which own at least
fifty-one percent (51%) directly or indirectly of the voting securities
and voting interests in Tenant ("Tenant's Parent Company"), and (iii) a
subsidiary of Tenant's Parent Company, if any, in which Tenant's Parent
Company owns at least fifty-one percent (51%) directly or indirectly of
the voting securities and voting interests thereof.
4. PROPRIETARY FILES
Notwithstanding the Landlord's rights as outlined in Article XV,
Landlord shall exempt certain files ("Proprietary Files") pertaining to
information specific to Tenant's clients and computers and business
records. This information must be kept separate from other
administrative files belonging to Tenant at all times to be classified
as Proprietary Files.
5. ESSENTIAL SERVICES
Subject to Casualty and/or Condemnation, which shall control in the
circumstances described therein, Landlord and Tenant agree that there
are certain building services without which Tenant cannot occupy the
Premises for the purpose for which it was originally leased. The
services are heating, ventilation, air conditioning, electrical
service, elevator service, water and plumbing services (the "Essential
Services"). Provided that such interuption or malfunction was not
caused by the intentional act, omision, negligence or willful
misconduct of Tenant or its contractors or the circumstances set forth
in Casualty and Condemnation hereof, should Landlord fail to provide
any one or more of the Essential Services for a continuous period of
five (5) business days or longer after written notice to Landlord,
then, to the extent that Landlord's failure to provide any of the
Essential Services causes Tenant to be unable to use all or a portion
of the Premises for the purpose for which it was originally leased,
rent shall ▇▇▇▇▇ in proportion to the portion of the premises not
usable until the Essential Service or Services are restored.
6. COMMISSIONS
▇▇▇▇▇▇▇ ▇▇▇▇, Inc. or its Assignee, agrees to pay ▇▇▇▇▇ ▇▇▇▇▇
("Tenant's Broker") a commission of 4% at closing. If ▇▇▇▇▇▇▇ ▇▇▇▇,
Inc.
EXHIBIT H-1
Initial Initial
does not successfully complete the closing of Escrow, Dated February
13, 1997 betwen Mission Life Insurance and ▇▇▇▇▇▇▇ ▇▇▇▇, Inc. Tenant
will receive free rent from Mission Life Insurance equivalent to the
commission due Tenant's broker through the initial rental period (April
9th thru March '00). In which event Worldport would then pay Tenant's
Broker the Commission in lieu of rent. As an example, if Worldport does
not occupy more than 4,272 sq. ft. during the initial term the
commission due would be $140,710.67 X 4% = $5,628.43. This amount
$5,628.43/$2,000=2.81 months of free rent.
7. TENANT IMPROVEMENTS
The cost of Tenant Improvements specified in Rider 101, if any, would
be handled in the same way as in item 6. ▇▇▇▇▇▇▇ ▇▇▇▇, Inc. or its
assignee agree to paint where necessary and clean the carpets. This
cost will not exceed $.50 per square foot of occupied area.
EXHIBIT H-1
Initial Initial
EXHIBIT H-1
RIGHT OF FIRST REFUSAL SPACE
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