EXHIBIT 10.50
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ALLIANZ FINANCIAL CENTRE
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OFFICE LEASE AGREEMENT
Between
BEVERLY HILLS CENTER LLC
as Landlord
and
PREMIERE COMMUNICATIONS, INC.
as Tenant
Dated
May 12, 1996
TABLE OF CONTENTS
Page
Paragraph 1. DEFINITION AND BASIC PROVISIONS.............................. 1
Paragraph 2. GRANTING CLAUSE.............................................. 2
Paragraph 3. EARLY OCCUPANCY.............................................. 2
Paragraph 4. RENTAL....................................................... 2
Paragraph 5. USE.......................................................... 2
Paragraph 6. SERVICES TO BE PROVIDED BY LANDLORD.......................... 2
Paragraph 7. REPAIR AND MAINTENANCE....................................... 4
Paragraph 8. FIRE OR OTHER CASUALTY....................................... 4
Paragraph 9. COMPLIANCE WITH LAWS AND USAGE............................... 5
Paragraph 10. LIABILITY AND INDEMNITY...................................... 5
Paragraph 11. ADDITIONS AND FIXTURES....................................... 6
Paragraph 12. ASSIGNMENT AND SUBLETTING.................................... 6
Paragraph 13. SUBORDINATION................................................ 7
Paragraph 14. OPERATING EXPENSES........................................... 8
Paragraph 15. EMINENT DOMAIN............................................... 10
Paragraph 16. ACCESS BY LANDLORD........................................... 10
Paragraph 17. LANDLORD'S LIEN.............................................. 10
Paragraph 18. DEFAULTS..................................................... 10
Paragraph 19. NONWAIVER.................................................... 12
Paragraph 20. HOLDING OVER................................................. 12
Paragraph 21. COMMON AREA.................................................. 12
Paragraph 22. RULES AND REGULATIONS........................................ 12
Paragraph 23. TAXES........................................................ 12
Paragraph 24. INSURANCE.................................................... 12
Paragraph 25. PARKING...................................................... 13
Paragraph 26. PERSONAL LIABILITY........................................... 13
Paragraph 27. NOTICE....................................................... 13
Paragraph 28. LANDLORD'S MORTGAGE.......................................... 13
Paragraph 29. BROKERAGE.................................................... 13
Paragraph 30. PREPAID RENTAL............................................... 13
Paragraph 31. SPRINKLERS................................................... 13
Paragraph 32. LICENSE FOR MICROWAVE DISH ANTENNA........................... 13
Paragraph 33. INTERCONNECTION RIGHTS....................................... 14
Paragraph 34. EMERGENCY GENERATOR.......................................... 15
Paragraph 35. SUPPLEMENTAL HVAC............................................ 15
Paragraph 36. TENANT FINISH................................................ 16
Paragraph 37. RIGHT OF FIRST REFUSAL....................................... 17
Paragraph 38. RENEWAL OPTION............................................... 18
Paragraph 39. MISCELLANEOUS................................................ 19
Paragraph 40. ENTIRE AGREEMENT AND BINDING EFFECT.......................... 21
EXHIBIT A LEASED PREMISES AND ROFR AREA
EXHIBIT B LAND
EXHIBIT C RULES AND REGULATIONS
EXHIBIT D EMERGENCY GENERATOR AND HVAC LOCATIONS
EXHIBIT E NON-DISTURBANCE AND ATTORNMENT AGREEMENT
OFFICE LEASE AGREEMENT
1. DEFINITIONS AND BASIC PROVISIONS.
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A. Date of Lease: _____________, 1996.
B. "Landlord": Beverly Hills Center LLC
C. Address of Landlord:
2323 Bryan Street, Suite 2020
Lock Box 120
Dallas, Texas 75201
D. "Tenant": Premiere Communications, Inc.
E. Address of Tenant: 3399 Peachtree Road
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Suite 400
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Atlanta, 6A 30326
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F. "Building": The structure commonly known as the allianz Financial
Centre and which is located on the 0.8437 acre tract of land (the "Land")
described by metes and bounds on Exhibit B attached hereto and made a part
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hereof all purposes.
G. "Leased Premises": Approximately 6,952 square feet of rentable area on
the eighth (8th) floor of the Building, as outlined and hatched on the floor
plan attached hereto as Exhibit A and made a part hereof for all purposes.
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Tenant acknowledges that Tenant has had the opportunity to measure the Leased
Premises and that there has been applied to the usable square footage of the
Leased Premises a common area factor to arrive at the rentable square footage of
the Leased Premises. Therefore, Landlord and Tenant hereby stipulate that
notwithstanding anything herein to the contrary, the Leased Premises shall be
deemed to consist of 6,952 rentable square feet, and that no shortage or overage
in the rentable square feet of the Leased Premises purported by either party
shall be the basis for changing the number of rentable square feet herein
stipulated.
H. "Project": The Building, the parking facilities, parking garage, the
Skybridge and other structures, improvements, landscaping, fixtures,
appurtenances and other common areas now or hereafter, constructed or erected on
the Land.
I. "Rentable area in the Building" shall be 464,542 square feet of
rentable area, unless modified as provided herein.
J. "Commencement Date": August 1, 1996, or Tenant's Cutover Date (as
hereinafter defined), whichever shall first occur. As used herein, the term
"Tenant's Cutover Date" shall mean the date on which the telephone switch is
installed in the Leased Premises and substantially performing according to all
material specifications as verified by the manufacturer's standard testing
procedures. Upon request of either party hereto, Landlord and Tenant agree to
execute and deliver a written declaration in recordable form expressing the
Commencement Date hereof.
K. "Term": Commencing on the Commencement Date and ending five (5) years
after the Commencement Date, plus any partial calendar month following the
Commencement Date, unless sooner terminated as provided herein.
L. "Base Rental" $118,184.00 per year for the first five (5) years of the
Term of this Lease, payable in equal monthly installments of $9,848.67 each;
each such monthly installment shall be due and payable on the first day of each
calendar month, monthly in advance without demand and without setoff or
deduction whatsoever. Subject to the terms of Paragraph 33, Tenant may install
two (2) 4-inch and one (1) 3-inch conduits or equivalent cable runs in the riser
facilities of the Building and Tenant's rental obligations with respect thereto
shall be abated during the first five (5) years of the Term. In the event at
Tenant's request Landlord permits Tenant to install additional conduits or
equivalent cable runs, Tenant shall pay an additional Riser Fee with respect to
such additional installations in an amount equal to the then prevailing market
riser fee rate.
M. "Prepaid Rental": $9,848.67, to be applied to the first accruing
monthly installments of rental.
N. "Security Deposit": $ -0-.
O. "Permitted Use": The Leased Premises shall be used only for office
purposes and for a telecommunications facility.
P. "Common Area": That part of the Project designated by Landlord from
time to time for the common use of all tenants, including among other
facilities, the Skybridge, sidewalks, service corridors, curbs, truckways,
loading areas, private streets and alleys, lighting facilities, mechanical and
electrical rooms, janitors' closets, halls, lobbies, delivery passages,
elevators, drinking fountains, meeting rooms, public toilets, parking areas and
garages, decks and other parking facilities, landscaping and other common rooms
and common facilities.
Q. "Prime Rate": The rate announced as such from time to time by Chase
Manhattan Bank, N.A., or its successors, at its principal office.
R. "Broker": Trammell Crow Company/COMPASS Management and Leasing, Inc.
S. "Parking": Four (4) parking spaces, subject, however, to the payment
of prevailing market rental established from time to time for similar parking
spaces and further subject to the other terms, covenants and conditions
specified in Paragraph 25 hereof. Notwithstanding the foregoing or anything in
Paragraph 25 to the contrary, Tenant's rental obligations during the first five
(5) years of the Term of the Lease with respect to such four (4) parking
spaces shall be $120.00 (plus applicable taxes) per month per parking space used
for the parking of vehicles and $250.00 (plus applicable taxes) per month per
parking space used for the placement of equipment.
T. "Base Operating Expenses Rate": The Actual Operating Expenses Rate for
the 1996 calendar year.
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U. "Skybridge": The aerial walkway connecting the Building with the
Plaza of the Americas, together with any alterations, improvements and/or
replacements thereof.
Each of the foregoing definitions and basic provisions shall be
construed in conjunction with the references thereto contained in the other
provisions of this Lease and shall be limited by such other provisions. Each
reference in this Lease to any of the foregoing definitions and basic provisions
shall be construed to incorporate each term set forth above under such
definition or provision.
2. GRANTING CLAUSE. Landlord, in consideration of the covenants and
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agreements to be performed by Tenant and upon the terms and conditions
hereinafter stated, does hereby lease, demise and let unto Tenant, and Tenant
does hereby lease from Landlord, the Leased Premises specified in Paragraph 1.G.
hereof to have and to hold for the Term of this Lease, as specified in Paragraph
1.K. hereof.
3. EARLY OCCUPANCY. Any occupancy of the Leased Premises by Tenant prior
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to the Commencement Date shall be subject to all of the terms and provisions of
this Lease excepting only those requiring the payment of rental and other
charges.
If this Lease is executed before the Leased Premises becomes vacant,
or if any present tenant or occupant of the Leased Premises holds over and
Landlord cannot acquire possession thereof prior to the Commencement Date, then
Landlord shall not be deemed in default hereunder, and Tenant agrees to accept
possession of the Leased Premises at such time as Landlord is able to tender the
same and, in such event, the date of such tender by Landlord shall be deemed to
be the Commencement Date, and Landlord hereby waives the payment of rental and
other charges covering any period prior to the date of such tender.
4. RENTAL. As rental for the Lease and use of the Leased Premises, Tenant
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will pay Landlord or Landlord's assigns, at the address of Landlord specified in
Paragraph 1.C. hereof, without demand and without deduction, abatement or setoff
(except as otherwise expressly provided for herein in Paragraph 8 hereof and
Paragraph 15 hereof), the Base Rental in the manner specified in Paragraph 1.L.
hereof, in lawful money of the United States. If the Term of this Lease does not
commence on the first day of a calendar month, Tenant shall pay to Landlord in
advance a pro rata part of such sum as rental for such first partial month.
Tenant shall not pay any installment of rental more than one (1) month in
advance. All past due installments of rental or other payment specified herein
shall bear interest at the highest lawful rate per annum from the date due until
paid.
If Tenant fails to timely pay two (2) consecutive installments of Base
Rental, or other payment specified herein, or any combination thereof after ten
(10) days notice to Tenant of such failure, in each case, and Tenant fails to
make the required payment within such ten (10) day period, Landlord may require
Tenant to pay (in addition to any interest) Base Rental and other payments
specified herein (as estimated by Landlord, if necessary) quarterly in advance,
and, in such event, all future payments shall be made on or before the due date
in cash or by cashier's check or money order, and the delivery of Tenant's
personal or corporate check shall no longer constitute payment thereof. Any
acceptance of Tenant's personal or corporate check thereafter by Landlord shall
not be construed as a waiver of the requirement that such payments be made in
cash or by cashier's check or money order. Any amount so estimated by Landlord
and paid by Tenant shall be adjusted promptly after actual figures become
available and paid or credited to Landlord or Tenant, as the case may be.
5. USE. Tenant shall use the Leased Premises solely for the Permitted Use
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specified in Paragraph 1.0 hereof and for no other business or purpose without
the prior written consent of Landlord.
6. SERVICES TO BE PROVIDED BY LANDLORD.
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A. Subject to the rules and regulations hereinafter referred to,
Landlord shall furnish Tenant, at Landlord's expense, while Tenant is occupying
the Leased Premises and is not in default hereunder, the following services
during the Term of this Lease:
(1) Air conditioning and heating in season, at such times as Landlord
normally furnishes such services to other tenants in the Building, and at
such temperatures and in such amounts as are considered by Landlord to be
standard, but such service on Saturday afternoons, Sundays and holidays to
be furnished only upon the request of Tenant, who shall bear the cost
thereof. Tenant acknowledges that such service and temperature may be
subject to change by local, county, state or federal regulation. Whenever
machines or equipment that generate abnormal heat are used in the Leased
Premises which affect the temperature otherwise maintained by the air
conditioning system, Landlord shall have the right to install supplemental
air conditioning in the Leased Premises, and the cost thereof, including
the cost of installation, operation, use and maintenance, shall be paid by
Tenant to Landlord as additional rental upon demand.
(2) Water at those points of supply provided for general use.
(3) Janitor service in and about the Building, and the Leased
Premises, as may in the reasonable judgment of Landlord be required for
Tenant's use of the Leased Premises; however, Tenant shall pay the
additional costs attributable to the cleaning of improvements within the
Leased Premises other than building standard improvements.
(4) Elevators for ingress to and egress from the Building as may in
the judgment of Landlord be reasonably required. Landlord may reasonably
limit the number of elevators in operation after usual and customary
business hours and on Saturday afternoons, Sundays and legal holidays.
(5) Replacement of fluorescent lamps in the building standard ceiling
mounted fixtures installed by Landlord and incandescent bulb replacement in
all public areas.
8. Landlord shall provide or cause to be provided to the Leased
Premises all electrical current required by Tenant in the normal use and
occupancy of the Leased Premises. Without Landlord's prior written consent,
Tenant shall not install any equipment which would result in Tenant's connected
load exceeding 3.0 watts per square foot of rentable area within the Leased
Premises or which would generate sufficient heat to affect the temperature
otherwise maintained in the Leased Premises by the normal operation of the
Building air conditioning equipment serving the
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Leased Premises. The obligation of Landlord to provide or cause to be provided
electrical service shall be subject to the rules and regulations of the supplier
of such electricity and of any municipal or other governmental authority
regulating the business of providing electrical utility service. Landlord shall
not be liable or responsible to Tenant for any loss, damage or expense which
Tenant may sustain or incur if either the quantity or character of the electric
service is changed or is no longer available or no longer suitable for Tenant's
requirements. At any time when Landlord is furnishing electric current to the
Leased Premises pursuant to this Paragraph 6.B., Landlord may, at its
option, upon not less than thirty (30) days prior written notice to Tenant,
discontinue the furnishing of such electric current. If Landlord gives such
notice of discontinuance, Landlord shall make all reasonably necessary
arrangements with the public utilities supplying the electric current to the
Project with respect to connecting electric current to the Leased Premises, but
Tenant shall contract directly with such public utility with respect to
supplying such service. Landlord shall have the right to measure electrical
usage in the Leased Premises (1) by installing a submeter, (2) by periodic
determinations by Landlord's engineers or other competent consultants selected
by Landlord, or (3) by any combination of such methods. The cost of purchase and
installation of a submeter in the Leased Premises shall be borne by Tenant.
C. Tenant shall be obligated to pay to Landlord, as additional
rental, (1) Tenant's proportionate share of all electrical service to the Common
Area (collectively, "Common Area Electrical Service") and (2) the cost of
electrical service to the Leased Premises. Tenant's proportionate share of the
cost of Common Area Electrical Service shall be equal to the cost of such
service times a fraction in which the numerator is the rentable area of the
Leased Premises and the denominator is the rentable area of the Building. In
the event the electrical service to the Leased Premises is submetered or
otherwise measured in accordance with the provisions of Paragraph 6.B., Tenant
shall pay to Landlord the cost of such electrical service based upon rates
determined by Landlord from time to time (which shall not exceed the amount
Tenant would have been charged for such service by the local utility company
furnishing such service). In the event electrical service to the Leased
Premises is not measured by a submeter or periodic determination by Landlord's
engineers or other competent consultants selected by Landlord (or a combination
of such methods), then, Tenant shall pay to Landlord Tenant's proportionate
share of the cost of all electrical service to tenants in the Building which
does not exceed Building standard consumption as established from time to time
by Landlord. Such proportionate share shall be based upon the statements
therefor received by Landlord from the electrical utility company providing
such service, adjusted as Landlord determines appropriate to eliminate
over-standard consumption, and shall be determined by multiplying the cost of
such service times a fraction (the "Leased Premises Electrical Expense
Percentage") the numerator of which is the rentable area of the Leased Premises
and the denominator of which is the rentable area of the Building. In the event
that other tenants of the Building pay directly either to Landlord or third
parties for electricity supplied to their respective premises (e.g. separately
metered electricity), then Landlord may, at its sole option, adjust the Leased
Premises Electrical Expenses Percentage by excluding from the denominator
thereof the rentable area of all tenants making such payments. The cost of
electrical service shall include without limitation all fuel adjustment charges,
demand charges and taxes. If, during any period of time, the Building is not
fully leased, then, for purposes of this Paragraph 6.C., the area of the
Building shall be deemed to mean and include that portion of the Building which
is occupied (calculated on the basis of rentable area).
D. Prior to the Commencement Date, Landlord shall deliver to Tenant
a statement which sets forth the Estimated Monthly charge (as hereinafter
defined) due and payable by Tenant under the terms of Paragraph 6.C. hereof for
electrical service each month during the Term. Tenant shall pay to Landlord on
the first day of each calendar month during the Term, commencing with the
Commencement Date, as additional rental, the Estimated Monthly Charge. In the
event the Commencement Date occurs on a day other than the first day of a
calendar month, the Estimated Monthly Charge payable in respect of the month in
which the Commencement Date falls shall be prorated and the Estimated Monthly
charge, as so prorated, shall be due and payable on or before the Commencement
Date. Thereafter, as the actual amounts owed by Tenant for Tenant's
proportionate share of Common Area Electrical Service and electrical service to
the Leased Premises are determined, Landlord shall deliver to Tenant a statement
setting forth the electrical service utilized during the period in question and
the actual amount owed by Tenant under the terms of Paragraph 6.C. hereof in
respect of such electrical service. If the Estimated Monthly Charge previously
paid by Tenant is less than the amount owed by Tenant based upon Landlord's
actual utility bills (for the period covered in such bills), Tenant shall pay to
Landlord the amount of the deficiency for such period within ten (10) days after
receipt of Landlord's statement. In the event the Estimated Monthly Charge
exceeds Tenant's proportionate share of such costs, the excess payment shall be
credited against subsequent amounts due from Tenant for electrical service. From
time to time Landlord shall review the Estimated Monthly Charge and make such
adjustments as may appear to be appropriate in the discretion of Landlord.
Landlord shall have the right to revise the Estimated Monthly Charge at any time
and from time to time in the exercise of Landlord's reasonable judgment upon at
least ten (10) days prior written notice to Tenant. All payments due under this
paragraph 6.D. after the expiration of such ten (10) day period shall be
increased or decreased as may be required to make such payments consistent with
such revised Estimated Monthly Charge. As used in this Paragraph 6.D., the term
"Estimated Monthly Charge" shall mean Landlord's estimate of the amount due and
payable by Tenant each month during the Term with respect to Tenant's
proportionate share of Common Area Electrical Service and electrical service to
be provided to the Leased Premises.
E. If Tenant's connected load for electrical design exceeds 3.0
watts per square foot, Tenant shall pay as a surcharge a proportionate part of
all electrical service costs which are attributable to the aggregate over-
standard electrical consumption by all tenants in the Building. Such proportion
shall be equal to the product of the aggregate cost of all over-standard
electrical consumption in the Building (as determined by Landlord) times a
fraction in which the numerator is Tenant's electrical design load in excess of
3.0 watts per square foot and the denominator is the aggregate of the total
electrical design load of all tenants in the Building in excess of 3.0 watts per
square foot. Tenant's proportionate share of such sums shall be due within ten
(10) days after the date of receipt of a statement therefor from Landlord
setting forth the amount of the charges involved and calculating Tenant's
proportionate share thereof.
F. No interruption or malfunction of any of such services shall
constitute an eviction or disturbance of Tenant's use and possession of the
Leased Premises or the Building or a breach by Landlord of any of Landlord's
obligations hereunder to render Landlord liable for damages or entitle Tenant to
be relieved from any of Tenant's obligations hereunder (including the obligation
to pay rental) or grant Tenant any right of setoff or recoupment. In the event
of any such interruption, however, Landlord shall use reasonable diligence
during normal business hours to restore such service or cause same to be
restored in any circumstances in which such restoration
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is within the reasonable control of Landlord and the interruption was not caused
in whole or in part by Tenant's fault. Notwithstanding the foregoing, in the
event that an interruption of any of those services to be provided by Landlord
under this Paragraph 6 shall render the Leased Premises untenantable, such
interruption was not caused by any act or omission of Tenant or Tenant's
employees, agents or contractors and such interruption shall continue for a
period in excess of fifteen (15) consecutive days, then Tenant's Base Rental
obligations under the Lease shall abate for such period which exceeds fifteen
(15) consecutive days; provided, however, that such rental abatement shall be on
a pro rata basis to reflect only that portion of the Leased Premises affected by
the interruption of services. The abatement of rent provided for in this
paragraph shall not be applicable in the case of any interruption of malfunction
resulting from a reduction or elimination of electrical service to the Building
from the electrical utility company or governmental agency providing such
electrical service or change in quality of such service, nor shall such
abatement be applicable in the event of any interruption or malfunction of
services due to regulations of any government or governmental authority or any
utility company providing electrical service provided such interruption or
malfunction is not due to the failure of Landlord to make payment for such
service or the failure to comply or perform its contractual obligations or
Landlord's failure to comply with existing applicable rules or regulations.
G. Should Tenant desire any additional services beyond those
described in this Paragraph 6 hereof or rendition of any of such services
outside the normal times of Landlord for providing such service, Landlord may
(at Landlord's option), upon reasonable advance notice from Tenant to Landlord,
furnished such service, and Tenant agrees to pay Landlord such charges as may be
agreed on between Landlord and Tenant, but in no event at a charge less than
Landlord's actual cost plus overhead for the additional services provided.
H. Notwithstanding anything in this Paragraph 6 to the contrary,
Landlord shall provide 400 amp electrical service to the Leased Premises. Any
additional electrical requirements of Tenant shall be provided at Tenant's sole
cost and expense. In addition, notwithstanding anything in this Paragraph 6 to
the contrary, Tenant's electrical service in the Leased Premises shall be
measured by a separate meter, installed at Tenant's sole cost and expense.
Tenant may use any unused Finish Allowance to pay for such meter.
7. REPAIR AND MAINTENANCE.
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A. Landlord shall, at Landlord's own cost and expense, except as may
be provided elsewhere herein, make necessary repairs of damage to the Building
corridors, lobby, structural members of the Building and equipment used to
provide the services referred to in Paragraph 6 hereof, unless any such damage
is caused in whole or in part by acts of omission or Tenant, or Tenant's agents,
employees or invitees, in which event Tenant shall bear the cost of such
repairs. Tenant shall promptly give Landlord notice of any damage in the Leased
Premises requiring repair by Landlord, as aforesaid.
B. Tenant shall not in any manner deface or injure the Leased
Premises or the Building but shall maintain the Leased Premises, including,
without limitation, all fixtures installed by Tenant and all plate glass, walls,
carpeting and other floor covering placed or found therein, in a clean,
attractive, first-class condition and in good repair, except as to damage
required to be repaired by Landlord, as provided in Paragraph 7.A. hereof. Upon
the expiration of the Term of this Lease, Tenant shall surrender and deliver up
the Leased Premises with all improvements located thereon (except as provided in
Paragraph 11.B. hereof) to Landlord broom-clean and in the same condition in
which they existed at the commencement of the Lease, excepting only ordinary
wear and tear and damage arising from any cause not required to be repaired by
Tenant, failing which Landlord may restore the Leased Premises to such
condition, and Tenant shall pay the cost thereof.
C. This Paragraph 7 shall not apply in the case of damage or
destruction by fire or other casualty which is covered by insurance maintained
by Landlord on the Building (as to which Paragraph 8 hereof shall apply), or
damage resulting from an eminent domain taking (as to which Paragraph 15 hereof
shall apply).
8. FIRE AND OTHER CASUALTY.
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A. If at any time during the Term of this Lease, the Leased Premises
or any portion of the Building shall be damaged or destroyed by fire or other
casualty, then Landlord shall have the election to terminate this Lease or to
repair and reconstruct the Leased Premises and the Building to substantially the
same condition in which they existed immediately prior to such damage or
destruction, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures and other improvements which may
have been installed by Tenant or other tenants within the Building. In the
event that the Leased Premises are damaged or destroyed by fire or other
casualty, or a portion of the Building is damaged or destroyed by fire or other
casualty so as to materially impair the use and occupancy by Tenant of the
Leased Premises, then Landlord shall be obligated to provide written notice (the
"Restoration Notice") to Tenant within sixty (60) days of such event of casualty
stating a good faith estimate, certified by an independent architect, of the
period of time (the "Stated Restoration Period") which shall be required for the
repair and restoration of the Leased Premises and/or the Building. Tenant shall
have the right, at its election, to terminate the Lease if either (i) the Stated
Restoration Period shall be in excess of ninety (90) days following the event of
casualty and Tenant terminates this Lease with written notice thereof to
Landlord within ten (10) days following delivery of the Restoration Notice, or
(ii) Landlord shall fail to substantially complete the repair and restoration of
the Leased Premises or the Building within the Stated Restoration Period
(subject to extension as provided in Paragraph 39.T of this Lease) and Tenant
delivers written notice of such termination to Landlord within ten (10) days
following the expiration of the restoration deadline.
B. In any of the aforesaid circumstances, rental shall abate
proportionately during the period and to the extent that the Leased Premises are
unfit for use by Tenant in the ordinary conduct of Tenant's business. If Tenant
does not elect, or does not have the right to elect, to terminate the Lease, and
Landlord has elected to repair and restore the Leased Premises, this Lease shall
continue in full force and effect and such repairs shall be made within a
reasonable time thereafter, subject to delays arising from shortages of labor or
material, acts of God, war or other conditions beyond Landlord's reasonable
control. In the event that this Lease is terminated as herein permitted,
Landlord shall refund to Tenant the prepaid rental (unaccrued as of the date of
damage or destruction) less any sum then owing Landlord by Tenant. If Tenant
does not elect, or does not have the right to elect, to terminate the Lease, and
Landlord has elected to repair and reconstruct the Leased Premises, then the
Term of this Lease shall be extended by a period of time equal to the period of
such repair and reconstruction. Any insurance which may be carried by Landlord
or Tenant against loss or damage to the Building or to the Leased Premises
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shall be for the sole benefit of the party carrying such insurance under its
control, and it is understood that Landlord shall in no event be obligated to
carry insurance on Tenant's contents.
9. COMPLIANCE WITH LAWS AND USAGE. Tenant, at Tenant's own expense, (a)
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shall comply with all federal, state, municipal fire underwriting and other
laws, ordinances, orders, rules and regulations applicable to the Leased
Premises and the business conducted therein by Tenant, (b) shall not engage in
any activity which would cause Landlord's fire and extended coverage insurance
to be cancelled or the rate therefor to be increased (or, at Landlord's option,
Tenant shall pay any such increase to Landlord immediately upon demand as
additional rental in the event of such rate increase by reason of such
activity), (c) shall not commit, and shall cause Tenant's agents, employees and
invitees not to commit, any act which is a nuisance or annoyance to Landlord or
to other tenants, or which might, in the exclusive judgment of Landlord, damage
Landlord's goodwill or reputation, or tend to injure or depreciate the Building,
(d) shall not commit or permit waste in the Leased Premises or the Building, (e)
shall comply with rules and regulations from time to time promulgated by
Landlord applicable to the Leased Premises and/or the Building, (f) shall not
paint, erect or display any sign, advertisement, placard or lettering which is
visible in the corridors or lobby of the Building or from the exterior of the
Building without Landlord's prior written approval, and (g) shall not occupy or
use, or permit any portion of the Leased Premises to be occupied or used, for
any business or purpose other than the Permitted Use specified in Paragraph 1.0.
hereof. If a controversy arises concerning Tenant's compliance with any federal
state, municipal or other laws, ordinances, orders, rules or regulations
applicable to the Leased Premises and the business conducted therein by Tenant,
Landlord may retain consultants of recognized standing to investigate Tenant's
compliance. If it is determined that Tenant has not complied as required, Tenant
shall reimburse Landlord on demand for all consulting and other costs incurred
by Landlord in such investigation. Landlord shall comply with all federal,
state, municipal, fire underwriting and other laws, ordinances, orders, rules
and regulations applicable to the Common Area of the Building and the business
conducted therein by Tenant. Landlord and Tenant acknowledge that, in accordance
with the provisions of the Americans with Disabilities Act and the Texas
Elimination of Architectural Barriers Act, each as amended from time to time,
and all regulations and guidelines issued by authorized agencies with respect
thereto (collectively, the "ADA" and the "EAB", respectively), responsibility
for compliance with the terms and conditions of Title III of the ADA and the EAB
may be allocated as between Landlord and Tenant. Notwithstanding anything to the
contrary contained in the Lease, Landlord and Tenant agree that the
responsibility for compliance with the ADA and the EAB shall be allocated as
follows: (i) Tenant shall be responsible for compliance with the provisions of
Title III of the ADA and the EAB with respect to the Leased Premises, including
restrooms within the Leased Premises, and (ii) Landlord shall be responsible
for compliance with the provisions of Title III of the ADA and with the EAB with
respect to the exterior of the Building, parking areas, sidewalks and walkways,
and any and all areas appurtenant thereto, together with all common areas of the
Building not included within the Leased Premises. The allocation of
responsibility for ADA and EAB compliance between Landlord and Tenant, and the
obligations of Landlord and Tenant established by such allocations, shall
supersede any other provisions of the Lease that may contradict or otherwise
differ from the requirements of this paragraph.
In the event Tenant delivers to Landlord on or before May 10, 1996 written
evidence from Tenant's architect ("Architect's Evidence") that such architect
has determined in good faith that the cost to cause the leasehold improvements
(which exist in the Leased Premises as of the date of this lease and which will
remain in the Leased Premises after the Tenant Finish Work (as defined in
Paragraph 36) has been performed) to comply with the ADA and/or the EAB will
exceed $30,000.00, Tenant may terminate this Lease by delivering written notice
("Tenant's ADA Termination Notice") thereof to Landlord simultaneously with
Tenant's delivery of the Architect's Evidence to Landlord. Tenant's failure to
timely deliver the Architect's Evidence and/or Tenant's ADA Termination Notice
shall automatically extinguish Tenant's foregoing right to terminate this Lease.
Until the foregoing termination right is extinguished or waived in writing by
Tenant, Landlord shall not be obligated to pay to Tenant any portion of the
Finish Allowance. In the event Tenant exercises the foregoing termination right,
notwithstanding anything in this Lease to the contrary, Landlord shall not be
obligated to pay the Finish Allowance to Tenant, and Tenant shall, at its sole
cost and expense, promptly surrender the Leased Premises to Landlord in the same
condition as they existed upon Landlord's tendering of possession thereof to
Tenant.
10. LIABILITY AND INDEMNITY.
-----------------------
A. Tenant agrees to indemnify and save Landlord harmless from all
third-party claims (including costs and expenses of defending against such
claims) arising or alleged to arise from any negligent act or omission or
willful misconduct of Tenant or Tenant's agents, employees, or contractors.
Landlord agrees to indemnify and save Tenant harmless from all third-party
claims (including costs and expenses of defending against such claims) arising
or alleged to arise from any negligent act or omission or willful misconduct of
Landlord or Landlord's agents, employees or contractors.
B. Notwithstanding any provision in this Lease to the contrary,
Landlord and Tenant each hereby waives any and all rights of recovery, claim,
action, or cause of action, against the other, its agents, officers, or
employees, for any loss or damage that may occur to the Leased Premises, or any
improvements thereto, or the Building of which the Leased Premises are apart, or
any improvements thereto, or any personal property of such party therein, by
reason of fire, the elements, or any other cause which is or would be insured
against under the terms of the property insurance policies carried or required
to be carried under the terms of this Lease by the respective parties hereto,
regardless of cause or origin, including negligence of the other party hereto,
its agents, officers, or employees, and covenants that no insurer shall hold any
right of subrogation against such other party (and all such insurance policies
shall be amended or endorsed to reflect such waiver of subrogation). This waiver
of subrogation provision shall be effective to the full extent, but only to the
extent that it does not impair the effectiveness of insurance policies of
Landlord and Tenant.
C. Tenant, to the extent permitted by law, waives all claims Tenant
may have against Landlord, and against Landlord's agents and employees for
injury to person or damage to or loss of property sustained by Tenant or by any
occupant of the Leased Premises, or by any other person, resulting from any part
of the Building or any equipment or appurtenances becoming out of repair, or
resulting from any accident in or about the Building or resulting directly or
indirectly from any act or neglect of any tenant or occupant of any part of the
Building or of any other person, unless such damage is a result of the
negligence of Landlord's agents or employees or Landlord's default in the
performance of its obligations under this Lease. If any damage results from any
act or neglect of Tenant and if the cost of repair of such damage would not be
covered by a fire and extended coverage insurance policy maintained by Landlord
on the Project, then Landlord may, at Landlord's option, repair such damage, and
Tenant shall thereupon pay to Landlord the
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total cost of such repair. All personal property belonging to Tenant or any
occupant of the Leased Premises that is in or on any part of the Building shall
be there at the risk of Tenant or of such other person only, and Landlord,
Landlord's agents and employees shall not be liable for any damage thereto or
for the theft or misappropriation thereof unless such damage, theft or
misappropriation is a result of the negligence of Landlord or Landlord's agents
or employees.
11. ADDITIONS AND FIXTURES.
----------------------
A. Tenant will make no alteration, change, improvement, repair,
replacement or physical addition in or to the Leased Premises without the prior
written consent of Landlord, such consent not to unreasonably withheld or
delayed; provided, however, that Landlord shall be deemed to have reasonably
withheld its consent if Landlord withholds its consent because any such
alteration, change, improvement, repair, replacement or addition negatively
impacts the structure of the Building or any system of the Building including,
without limitation, the Building's floor load-bearing requirements and its
mechanical, electrical, plumbing and HVAC systems. If such prior written
consent of Landlord is granted, the work in such connection shall be at Tenant's
expense but by workmen of Landlord or by workmen and contractors approved in
advance in writing by Landlord and in a manner and upon terms and conditions and
at times satisfactory to and approved in advance in writing by Landlord. In any
instance where Landlord grants such consent, Landlord may grant such consent
contingent and conditioned upon Tenant's contractors, laborers, materialmen and
others furnishing labor or materials for Tenant's job working in harmony and
not interfering with any labor utilized by Landlord, Landlord's contractors or
mechanics or by any other tenant or such other tenant's contractors or
mechanics; and if at any time such entry by one (1) or more persons furnishing
labor or materials for Tenant's work shall cause disharmony or interference for
any reason whatsoever without regard to fault, the consent granted by Landlord
to Tenant may be withdrawn at any time upon written notice to Tenant.
B. Tenant, if Tenant so elects, may remove Tenant's trade fixtures,
office supplies and movable office furniture and equipment not attached to the
Building provided (i) such removal is made prior to the expiration of the Term
of this Lease, (ii) Tenant is not in default of any obligation or covenant under
this Lease at the time of such removal, and (iii) Tenant promptly repairs all
damage caused by such removal. All other property at the Leased Premises and any
alteration or addition to the Leased Premises (including wall-to-wall carpeting,
paneling or other wall covering) and any other article attached or affixed to
the floor, wall or ceiling of the Leased Premises shall become the property of
Landlord shall be in good condition, normal wear and tear excepted, and shall
remain upon and be surrendered with the Leased Premises as part thereof at the
expiration of the Term of this Lease, Tenant hereby waiving all rights to any
payment or compensation therefor. If, however, Landlord so requests in writing,
Tenant will, prior to the termination of this Lease, remove in a good and
workmanlike manner any and all alterations, additions, fixtures, equipment and
property placed or installed by Tenant in the Leased Premises and will repair
any damage occasioned by such removal.
12. ASSIGNMENT AND SUBLETTING
-------------------------
A. Neither Tenant nor Tenant's Legal representatives or successors
in interest by operation of law or otherwise shall assign this Lease or sublease
the Leased Premises or any part thereof or mortgage, pledge or hypothecate its
Leasehold interest or grant any concession or license within the Leased Premises
without the prior express written permission of Landlord, which permission shall
not be unreasonably withheld or delayed, and any attempt to do any of the
foregoing without the prior express written permission of Landlord shall be void
and of no effect. In determining whether to grant permission to Tenant's request
to assign this lease or sublease the Leased Premises, Landlord may consider any
reasonable factor. Landlord and Tenant agree that any one of the following
factors, or any other reasonable factor, will be reasonable grounds for deciding
Tenant's request:
(i) The business reputation of the proposed assignee or
subleasee must be in accordance with generally acceptable commercial
standards and consistent with B class A office building environment;
(ii) The use of the Leased Premises by the proposed assignee or
sublessee must be for general office use or for a telecommunications
facility only;
(iii) The proposed assignee or sublessee may not be a tenant or
occupant in the Building; and
(iv) The use of the Leased Premises by the proposed assignee or
sublessee shall not violate any other agreements affecting the Leased
Premises, the Building, Landlord or other tenants.
Notwithstanding any provision in this Lease to the contrary, the undersigned
Tenant may, without Landlord's prior written consent, assign its rights
hereunder to any bona fide purchaser of substantially all of the undersigned
Tenant's assets or all of the corporate stock of the undersigned Tenant, or to
an entity with which the undersigned Tenant enters into a bona fide merger or
consolidation (collectively, a "Permitted Assignee"); provided, however, that
(i) the undersigned Tenant shall remain liable for the performance of all
covenants, duties and obligations under the Lease, irrespective of any such
assignment or sublease, (ii) the use of the Leased Premises by the Permitted
Assignee may not violate any other agreements affecting the Leased Premises,
the Building, Landlord or other tenants, and (iii) use of the Leased Premises by
the Permitted Assignee shall conform with the uses permitted by this Lease.
Tenant shall notify Landlord, in writing, of any such assignment or sublease
within thirty (30) days of its occurrence and shall provide Landlord with all
such reasonable information as Landlord may request regarding the identity and
status of such assignee or sublessee. In the event Tenant requests Landlord's
prior express permission as to any assignment of the Lease (other than to a
Permitted Assignee), Landlord shall have the right and option, (but no
obligation), to cancel and terminate this lease by giving Tenant ten (10) days'
prior written notice; provided, however, that Landlord's right to counsel and
terminate shall not apply if Tenant withdraws its request within such 10-day
period. In the event of any attempted assignment or attempted sublease without
the prior express written permission of Landlord, or should Tenant, in any other
nature of transaction, permit or attempt to permit anyone to occupy the Leased
Premises (or any portion thereof) without the prior express written permission
of Landlord, Landlord shall thereupon have the right and option to cancel and
terminate this Lease effective upon ten (10) days' notice to Tenant given by
Landlord at any time thereafter either as to the entire Leased Premises or as to
only the portion thereof which Tenant shall have attempted to assign or sublease
or otherwise permitted some other party's occupancy without Landlord's prior
express written permission, and if Landlord elects to cancel and terminate this
Lease as to the aforesaid portion of the Leased Premises, then the rental and
other charges payable hereunder shall thereafter be proportionately reduced.
This prohibition against assignment or subletting
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shall be construed to include a prohibition against any assignment or subletting
by operation of law.
B. Notwithstanding that the prior express written permission of Landlord
to any of the aforesaid transactions may have been obtained, the following shall
apply:
(1) In the event of an assignment, contemporaneously with the granting of
Landlord's aforesaid consent, Tenant shall cause the assignee to expressly
assume in writing and agree to perform all of the covenants, duties and
obligations of Tenant hereunder, and such assignee shall be jointly and
severally liable therefor along with Tenant; Tenant shall further cause such
assignee to grant Landlord and express first and prior contract lien and
security interest in the manner hereinafter stated as applicable to Tenant;
(2) A signed counterpart of all instruments relative thereto (executed by
all parties to such transactions with the exception of Landlord) shall be
submitted by Tenant to Landlord prior to or contemporaneously with the
request for Landlord's prior express written permission thereto (it being
understood that no such instrument shall be effective without the prior
express written permission of Landlord);
(3) [Intentionally Deleted.]
(4) No usage of the Leased Premises different from the usage herein
provided to be made by Tenant shall be permitted, and all other terms and
provisions of this Lease shall continue to apply after any such transaction;
(5) In any case where Landlord consents to an assignment, sublease, grant
of a concession or license or mortgage, pledge or hypothecation of the
Leasehold, the undersigned Tenant will nevertheless remain directly and
primarily liable for the performance of all of the covenants, duties and
obligations of Tenant hereunder (including, without limitation, the
obligation to pay all rental and other sums herein provided to be paid), and
Landlord shall be permitted to enforce the provisions of this Lease against
the undersigned Tenant and/or any assignee, sublessee, concessionaire,
licensee or other transferee without demand upon or proceeding in any way
against any other person; and
C. If Tenant is a corporation, then any transfer of this Lease from
Tenant by merger, consolidation or dissolution or any change in ownership or
power to vote a majority of the voting stock in Tenant outstanding at the time
of execution of this Lease shall constitute an assignment for the purpose of
this Lease; provided, however, that acquisition of all stock of a corporate
tenant by any corporation, the stock of which is registered pursuant to the
Securities Act of 1933 or the merger of a corporate tenant into such a
corporation, the stock of which is so registered, shall not itself be deemed to
be a violation of Paragraph 12.A. For purposes of this Paragraph 12.C., the term
"voting stock" shall refer to shares of stock regularly entitled to vote for the
election of directors of the corporation involved.
If Tenant is a general partnership having one (1) or more corporations as
partners of if Tenant is a limited partnership having one (1) or more
corporations as general partners, the provisions of the preceding paragraph of
this Paragraph 12.C. shall apply to each of such corporations as if such
corporation alone had been the Tenant hereunder.
If Tenant is a general partnership (whether or not having any corporations
as partners) or if Tenant is a limited partnership (whether or not having any
corporations as general partners), the transfer of the partnership interest or
interests constituting a majority shall constitute an assignment for the
purposes of this Lease.
D. Consent by Landlord to a particular assignment or sublease or other
transaction shall not be deemed a consent to any other or subsequent
transaction. If this Lease is assigned, or if the Leased Premises are subleased
(whether in whole or in part), or in the event of the mortgage, pledge or
hypothecation of the leasehold interest or grant of any concession or license
within the Leased Premises without the prior express written permission of
Landlord, which permission as stated in Paragraph 12.A. above shall not be
unreasonably withheld or delayed, or if the Leased Premises are occupied in
whole or in part by anyone other than Tenant without the prior express written
permission of Landlord, then Landlord may nevertheless collect rental and other
charges from the assignee, sublessee, mortgagee, pledgee, party to whom the
leasehold interest was hypothecated, concessionaire or licensee or other
occupant and apply the net amount collected to the rental and other charges
payable hereunder, but no such transaction or collection of rental and other
charges or application thereof by Landlord shall be deemed a waiver of these
provisions or a release of Tenant from the further performance by Tenant of
Tenant's covenants, duties and obligations hereunder.
13. SUBORDINATION. Tenant accepts this lease subject and subordinate to
-------------
any ground lease, mortgage, deed of trust or other lien presently existing or
hereafter placed upon the Leased Premises or upon the Building or any part
thereof, and to any renewals, modifications, extensions and refinancings
thereof, which might now or hereafter constitute a lien upon the Building or any
part thereof, and to zoning ordinances and other building and fire ordinances
and governmental regulations relating to the use of the Leased Premises, but
Tenant agrees that any such ground lessor, mortgagee and/or beneficiary of any
deed of trust or other lien ("Landlord's Mortgagee") and/or Landlord shall have
the right at any time to subordinate such ground lease, mortgage, deed of trust
or other lien to this Lease on such terms and subject to such conditions as such
Landlord's Mortgagee may deem appropriate in its discretion. Upon demand Tenant
agrees to execute such further instruments subordinating this Lease, as Landlord
may request, and such nondisturbance and attornment agreements, as any such
Landlord's Mortgagee shall request, in form satisfactory to Landlord's
Mortgagee. In the event that Tenant shall fail to execute any such instrument
within ten (10) business days after requested, Tenant hereby irrevocably
constitutes
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Landlord as Tenant's attorney-in-fact to execute such instrument in Tenant's
name, place and stead, it being stipulated by Landlord and Tenant that such
agency is coupled with an interest in Landlord and is, accordingly, irrevocable.
Upon foreclosure of the Building or upon acceptance of a deed in lieu of such
foreclosure, Tenant hereby agrees to attorn to the new owner of such property
after such foreclosure or acceptance of a deed in lieu of foreclosure, if so
requested by such new owner of the Building. Notwithstanding any contrary
provision contained herein, Landlord shall use reasonable efforts to obtain from
the current Landlord's Mortgagee a duly executed non-disturbance and attornment
agreement providing Tenant with substantially the same protection as to Tenant's
use and enjoyment of Tenant's leasehold estate, use, possession, tenancy and
other rights hereunder as is afforded Tenant under the form instrument attached
hereto as Exhibit E. In the event that Landlord fails to obtain such
---------
non-disturbance and attornment agreement from Landlord's Mortgagee within
fifteen (15) business days of following the date of this Lease, then Tenant
shall have the option, as Tenant's sole and exclusive right and remedy, to
terminate this Lease by delivering written notice to Landlord of the exercise of
such right of termination on or before twenty-five (25) business days following
the date of this Lease. Tenant's failure to timely deliver such written notice
shall automatically extinguish Tenant's right to terminate this Lease as set
forth herein. Until the foregoing termination right is extinguished or is waived
in writing by Tenant, Landlord shall not be obligated to pay any portion of the
Finish Allowance to Tenant. In the event Tenant timely exercises the foregoing
termination right, notwithstanding anything in this Lease to the contrary,
Landlord shall not be obligated to pay any portion of the Finish Allowance to
Tenant, and Tenant shall immediately surrender the Leased Premises to Landlord.
In addition, notwithstanding any contrary provision contained herein, the
subordination of this Lease to any mortgage, deed of trust or other lien
hereafter placed upon the Leased Premises or the Building or any part thereof
and Tenant's agreement to attorn to the holder of such mortgage, deed of trust
or other lien as provided in this Paragraph 13 shall be conditioned upon such
holder's entering into a non-disturbance and attornment agreement providing
Tenant with substantially the same protection as to Tenant's use and enjoyment
of Tenant's leasehold estate, use, possession, tenancy and other rights
hereunder as is afforded Tenant under the form instrument attached hereto as
Exhibit E.
- - ---------
14. OPERATING EXPENSES.
------------------
A. For purposes of this Paragraph 14, the following definitions and
calculations shall apply:
(1) The term "Operating Expenses" shall mean all expenses, costs and
disbursements of every kind and nature which Landlord shall pay or become
obligated to pay because of or in connection with the ownership, operation,
maintenance, repair, replacement, protection and security of the Project,
determined on an accrual basis in accordance with generally accepted
accounting principles, including, without limitation, the following:
(i) Salaries and wages of all employees (at the level of
property manager and below) engaged in the operation, maintenance and
security of the Project, including taxes, insurance and benefits
(including pension, retirement of fringe benefits) relating thereto;
(ii) Cost of all supplies and materials used in the operation,
maintenance and security of the Project;
(iii) Cost of all water and sewage service supplied to the
Project;
(iv) Cost of all maintenance and service agreements for the
Project and the equipment therein, including, without limitation,
alarm service, parking facilities, security (both on-site and off-
site), janitorial service, landscaping, fire protection, sprinklers,
window cleaning and elevator maintenance;
(v) Cost of all insurance relating to the Project, including
the cost of casualty, rental and liability insurance applicable to the
Project and Landlord's personal property used in connection therewith;
(vi) All taxes, assessments and governmental charges (foreseen
or unforeseen, general or special, ordinary or extraordinary) whether
federal, state, county or municipal and whether levied by taxing
districts or authorities presently taxing the Project or by others
subsequently created or otherwise, and any other taxes and assessments
attributable to the Project or its operation, and all taxes of
whatsoever nature that are imposed in substitution for or in lieu of
any of the taxes, assessments or other charges herein defined;
provided, however, Operating Expenses shall not include taxes paid by
tenants of the Project as a separate charge on the value of their
leasehold improvements, death taxes, excess profits taxes, franchise
taxes and state and federal income taxes;
(vii) Cost of repairs and general maintenance, including,
without limitation, reasonable depreciation charges applicable to all
equipment used in repairing and maintaining the Project, but
specifically excluding repairs and general maintenance paid by
proceeds of insurance or by Tenant or by other third parties;
(viii) Cost of capital improvement items, including installation
thereof, which are acquired primarily for the purpose of reducing
Operating Expenses;
(xi) Reasonable management fees paid by Landlord to third
parties or to management companies owned by, or management divisions
of, Landlord, not to exceed the then prevailing market rate for the
management of high quality class A office buildings comparable to the
Project; and
(x) Any and all increases in ground rental and/or mortgage
debt service requirements on the Project in accordance with the terms
and conditions of any ground leases, mortgages or deeds of trust now
or hereafter encumbering the Project; excluding, however, any and all
increases in debt service caused by a refinancing which enables
Landlord to net any proceeds or additional debt placed upon the
Project to finance additional capital improvements, additions or
alterations.
Notwithstanding anything herein to the contrary, the following
shall not be included in Operating Expenses:
(a) Brokerage commissions, attorneys' fees, advertising costs or
other related expenses incurred by Landlord in connection with the leasing
of space to individual tenants in the Building;
-8-
(b) Legal fees and other expenses incurred in connection with
disputes with tenants or other occupants of the Building or associated
with the enforcement of the terms of any leases with tenants;
(c) Any cost of capital improvements or other costs which are
capital costs under generally accepted accounting principles, except
as provided in Paragraph 14.A.(1)(viii);
(d) Depreciation and amortization allowance or expense, except
as otherwise provided Paragraph 14.A.(1)(vii);
(e) Legal and auditing fees, other than those legal and auditing
fees necessarily incurred in connection with the maintenance and
operation of the Project;
(f) Legal or accounting fees incurred in connection with any
debt or equity financing of the Project or in connection with any
reports, returns or other financial or tax reporting or accounting
performed for the benefit of investors, partners or affiliates of
Landlord;
(g) Marketing and advertising expenses incurred in connection
with the leasing of the Building;
(h) Interest, fines and penalties to the extent caused by the
negligence or willful misconduct of Landlord; and
(i) The cost of removing asbestos or hazardous substances from
the Project.
To the extent that any Operating Expenses are attributable to the
Project and other projects of Landlord, a fair and reasonable allocation of such
Operating Expenses shall be made between the Project and such other projects.
(2) The term "Operating Expenses" shall exclude the cost of
electrical energy supplied to the Project and to tenants of the Building.
(3) The term "Base Operating Expenses Rate" is stipulated to be the
rate specified in Paragraph 1.?. hereof per square foot or rentable area in
the Leased Premises.
(4) The term "Actual Operating Expenses" shall mean, with respect to
each calendar year during the Term of this Lease, the actual Operating
Expenses for such year. The term "Actual Operating Expenses Rate" shall
mean, with respect to each calendar year during the Term of this Lease, the
Actual Operating Expenses attributable to each square foot of rentable
area in the Building, and shall be calculated by dividing the Actual
Operating Expenses by the total number of square feet of rentable area in
the Building, as specified in Paragraph 1.I. hereof. The term "Tenant's
Proportionate Share of Actual Operating Expenses" shall mean, with respect
to each calendar year during the Term of this Lease, an amount equal to the
product of (i) the positive difference (if any) obtained by substracting
the Base Operating Expenses Rate from the Actual Operating Expenses Rate,
multiplied by (ii) the weighted average number of square feet of rentable
area in the Leased Premises in such year; provided, however, if the Actual
Operating Expenses Rate is determined on the basis of a partial calendar
year, then in making the foregoing calculation, the Base Operating Expenses
Rate shall be multiplied by a fraction, the numerator of which is the
number of days in such partial calendar year and the denominator of which
is 365, and the foregoing weighted average shall be calculated only on the
basis of the portion of such calendar year covered by the Term of this
Lease.
For example, if the Actual Operating Expenses Rate for a calendar
year is $3.20 and the Base Operating Expenses Rate is $3.00, and the Leased
Premises contains 19,000 square feet of rentable area during the entire
calendar year, Tenant's Proportionate Share of Actual Operating Expenses is
$3,800.00, calculated as follows: ($3.20 - $3.00) x 19,000 = $3,800.00.
B. If the Actual Operating Expenses Rate during any calendar year is
greater than the Base Operating Expenses Rate, Tenant shall be obligated to pay
to Landlord as additional rental an amount equal to Tenant's Proportionate Share
of Actual Operating Expenses. To implement the foregoing, Landlord shall provide
to Tenant within ninety (90) days (or as soon thereafter as reasonably possible)
after the end of the calendar year in which the Commencement Date occurs, a
statement of the Actual Operating Expenses for such calendar year, the Actual
Operating Expenses Rate for such calendar year, and Tenant's Proportionate Share
of Actual Operating Expenses. If the Actual Operating Expenses Rate for such
calendar year exceeds the Base Operating Expenses Rate, Tenant shall pay to
Landlord, within thirty (30) days after Tenant's receipt of such statement, an
amount equal to Tenant's Proportionate Share of Actual Operating Expenses for
such calendar year.
C. Beginning with the Commencement Date of this Lease (or as soon
thereafter as reasonably possible), Landlord shall provide to Tenant a statement
of the projected annual Operating Expenses per square foot of rentable area in
the Project (the "Projected Operating Expenses Rate"). Tenant shall pay to
Landlord on the first day of each month an amount (the "Projected Operating
Expenses Installment") equal to one-twelfth (1/12) of the product of (i) the
positive difference (if any) obtained by subtracting the Base Operating Expenses
Rate from the Projected Operating Expenses Rate for such calendar year,
multiplied by (ii) the number of square feet of rentable area in the Leased
Premises on the first day of the prior month. Until Tenant has received the
statement of the Projected Operating Expenses Rate from Landlord, Tenant shall
continue to pay Projected Operating Expenses Installments to Landlord in the
same amount (if any) as required for the last month of the prior calendar year.
Upon Tenant's receipt of such statement of the Projected Operating Expenses
Rate, Tenant shall pay to Landlord, or Landlord shall pay to Tenant (whichever
is appropriate), the difference between the amount paid by Tenant prior to
receiving such statement and the amount payable by Tenant as set forth in such
statement. Landlord shall provide Tenant a statement, prepared by a certified
public accountant (who may be an employee of Landlord), within ninety (90) days
(or as soon thereafter as reasonably possible) after the end of each calendar
year, showing the Actual Operating Expenses Rate as compared to the Projected
Operating Expenses Rate for such calendar year. If Tenant's Proportionate Share
of Actual Operating Expenses for such calendar year exceeds the aggregate of the
Projected Operating Expenses Installments collected by Landlord from Tenant,
Tenant shall pay to Landlord, within thirty (30) days following Tenant's receipt
of such statement, the amount of such excess. If Tenant's Proportionate Share of
Actual Operating Expenses for such calendar year is less than the aggregate of
the Projected Operating Expenses Installments collected by Landlord from Tenant,
Landlord shall pay to Tenant, within thirty (30) days following Tenant's receipt
of
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such statement, the amount of such excess. Landlord shall have the right from
time to time during each calendar year to revise the Projected Operating
Expenses Rate and provide Tenant with a revised statement thereof, and
thereafter Tenant shall pay Projected Operating Expenses Installments on the
basis of the revised statement. If the Commencement Date of this Lease is not
the first day of a calendar year, or the expiration or termination date of this
Lease is not the last day of a calendar year, then Tenant's Proportionate Share
of Actual Operating Expenses shall be prorated. The foregoing adjustment
provisions shall survive the expiration or termination of the Term of this
Lease.
D. Notwithstanding any other provision herein to the contrary, it is
agreed that if the Project is not fully occupied during any calendar year an
adjustment shall be made in computing the Actual Operating Expenses for such
year so that the Actual Operating Expenses are computed as though the Project
had been fully occupied during such year.
E. Landlord agrees to keep books and records reflecting the Operating
Expenses of the Project in accordance with generally accepted accounting
principles. Tenant, at its expense, shall have the right, within six (6) months
after receiving Landlord's statement of Actual Operating Expenses for a
particular year, to audit Landlord's books and records relating to the Operating
Expenses for such year if the Actual Operating Expenses Rate exceeds the Base
Operating Expenses Rate; or, at Landlord's sole option, Landlord may provide
such audit prepared by a certified public accountant selected by Landlord. If
within such six (6) month period Tenant does not give Landlord written notice
stating in reasonable detail any objection to the statement of Actual Operating
Expenses, Tenant shall be deemed to have approved such statement in all
respects.
F. Notwithstanding any provision of the Lease to the contrary, for the
purpose of calculating Tenant's Proportionate Share of Actual Operating Expenses
each year during the first five (5) years of the Term of the Lease, the items
of Actual Operating Expenses which are reasonably subject to the control of
Landlord ("Controllable Expenses") shall be deemed not to increase more than
eight percent (8%) per calendar year (determined on a cumulative compounding
basis throughout the Term of the Lease) for each calendar year from and after
January 1, 1997; provided, however, that no item of Actual Operating Expenses
other than Controllable Expenses shall be subject to the foregoing limitation.
Controllable Expenses shall not include, without limitation, (i) insurance, (ii)
taxes, assessments and governmental charges, as specified in Paragraph 14.A.(1)
(vi) above, and (iii) utilities.
15. EMINENT DOMAIN. If there shall be taken by exercise of the power of
--------------
eminent domain during the Term of this Lease any part of the Leased Premises or
the Building, Landlord may elect to terminate this Lease or to continue same in
effect. If there shall be taken by exercise of the power of eminent domain any
part of the Leased Premises or the Building which materially interferes with
Tenant's ability to conduct its operations in the Leased Premises, then Tenant
shall have the right to terminate this Lease upon thirty (30) days' written
notice to Landlord following such taking. If this Lease continues, the rental
shall be reduced in proportion to the area of the Leased Premises so taken, and
Landlord shall repair any damage to the Leased Premises or the Building
resulting from such taking. All sums awarded or agreed upon between Landlord and
the condemning authority for the taking of the interest of Landlord, whether as
damages or as compensation, will be the property of Landlord. Tenant shall
present its own claim for damages against the condemning authority on account of
the unamortized cost of leasehold improvements paid for by Tenant taken by the
condemning authority and for damages to, or condemnation of, furniture, trade
fixtures and equipment and such other installations as Tenant shall be unable to
remove from the Leased Premises (but only to the extent that the terms and
provisions of this Lease provide that such items will remain the property of
Tenant upon the termination of this Lease), and the reimbursement of Tenant's
cost in moving and relocating such furniture, trade fixtures and equipment and
other installations to which Tenant shall be entitled and is able to remove
from the Leased Premises and such other claims Tenant may have against the
condemning authority, but only to the extent Tenant's claim does not diminish
Landlord's claim against the condemning authority. If this Lease should be
terminated under any provision of this Paragraph 15, rental shall be payable up
to the date that possession is taken by the condemning authority, and Landlord
will refund to Tenant any prepaid unaccrued rental less any sum then owing by
Tenant to Landlord.
16. ACCESS BY LANDLORD. Landlord, Landlord's agents and employees shall
------------------
have access to and the right to enter upon any and all parts of the Leased
Premises at any reasonable time after reasonable prior notice, which notice may
be oral or written (except in cases of emergency, defined to be any situation in
which Landlord perceives imminent danger of inquiry to person and/or damage to
or loss of property, in which case Landlord may enter upon any and all parts of
the Leased Premises at any time) to examine the condition thereof, to clean, to
make any repairs, alterations or additions required to be made by Landlord
hereunder, to show the Leased Premises to prospective purchasers or tenants or
mortgage lenders (prospective or current) and for any other purpose deemed
reasonable by Landlord, and Tenant shall not be entitled to any abatement or
reduction of rental by reason thereof.
17. LANDLORD'S LIEN. Landlord hereby expressly waives and releases any and
---------------
all contractual liens and security interests or constitutional and/or statutory
liens and security interests arising by operation of law to which Landlord might
now or hereafter be entitled on all the property of Tenant which Tenant now or
hereafter places in or upon the Leased Premises (except for judgment liens that
may arise in favor of Landlord). The waiver and release contained herein shall
not waive, release or otherwise affect any unsecured claim Landlord may have
against Tenant.
18. DEFAULTS.
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A. Each of the following acts or omissions of Tenant or occurrences
shall constitute an "Event of Default":
(1) Failure or refusal by Tenant to pay rental or other payments
hereunder upon the expiration of a period of ten (10) days following
written notice to Tenant of such failure; provided, however, that Landlord
shall not be required to send such written notice to Tenant more than twice
in any one calendar year and after such two (2) written notices, Landlord
shall have no obligation to give Tenant written notice of any subsequent
default during the remainder of such calendar year and Tenant's failure or
refusal to timely pay rental or other payments hereunder when due during
the remainder of such calendar year shall constitute an Event of Default.
(2) Failure to perform or observe any covenant or condition of this
Lease by Tenant to be performed or observed upon the expiration of a period
of ten (10) days following written notice to Tenant of such failure;
provided, however, that in the event Tenant's failure to perform a covenant
or condition of this Lease cannot reasonably be cured within ten (10) days
-10-
following written notice to Tenant, Tenant shall not be in default if
Tenant commences to cure same within the ten (10) day period and thereafter
diligently prosecutes the curing thereof, but in no event shall Tenant's
cure period exceed thirty (30) days following written notice to Tenant.
(3) The filing or execution or occurrence of any one of the
following: (i) a petition in bankruptcy or other insolvency proceeding by
or against Tenant, (ii) petition or answer seeking relief under any
provision of the Bankruptcy Act, (iii) an assignment for the benefit of
creditors or composition, (iv) a petition or other proceeding by or against
Tenant for the appointment of a trustee, receiver or liquidator of Tenant
or any of Tenant's property, or (v) a proceeding by any governmental
authority for the dissolution or liquidation of Tenant.
B. This Lease and the Term and estate hereby granted and the demise
hereby made are subject to the limitation that if and whenever any Event of
Default shall occur, Landlord may, at Landlord's option, in addition to all
other rights and remedies given hereunder or by law or equity, do any one (1) or
more of the following:
(1) Terminate this Lease, in which event Tenant shall immediately
surrender possession of the Leased Premises to Landlord.
(2) Enter upon and take possession of the Leased Premises and expel
or remove Tenant and any other occupant therefrom, with or without having
terminated the Lease.
(3) Alter locks and other security devices at the Leased Premises.
C. Exercise by Landlord of any one (1) or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Leased Premises by Tenant, whether by agreement or by operation
of Law, it being understood that such surrender can be effected only by the
written agreement of Landlord and Tenant. No such alteration of security devices
and no removal or other exercise of dominion by Landlord over the property of
Tenant or others at the Leased Premises shall be deemed unauthorized or
constitute a conversion, Tenant hereby consenting, after any Event of Default,
to the aforesaid exercise of dominion over Tenant's property within the
Building. All claims for damages by reason of such re-entry and/or possession
and/or alteration of locks or other security devices are hereby waived, as are
all claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Tenant agrees
that any re-entry by Landlord may be pursuant to judgment obtained in forcible
detainer proceedings or other legal proceedings or without the necessity for any
legal proceedings, as Landlord may elect, and Landlord shall not be liable in
trespass or otherwise.
D. In the event that Landlord elects to terminate this Lease by
reason of an Event of Default, then, notwithstanding such termination, Tenant
shall be liable for and shall pay to Landlord, at the address specified in
Paragraph 1.C. hereof, the sum of all rental and other indebtedness accrued to
the date of such termination, plus, as damages, an amount equal to the then
present value of the rental reserved hereunder for the remaining portion of the
Term of this Lease (had such Term not been terminated by Landlord prior to the
expiration of the Term of this Lease), less the then present value of the fair
rental value of the Leased Premises for such period.
In the event that Landlord elects to terminate the Lease by reason of
an Event of Default, in lieu of exercising the rights of Landlord under the
preceding paragraph of this Paragraph 18.D., Landlord may instead hold Tenant
liable for all rental and other indebtedness accrued to the date of such
termination, plus such rental and other indebtedness as would otherwise have
been required to be paid by Tenant to Landlord during the period following
termination of the Term of this Lease measured from the date of such termination
by Landlord until the expiration of the Term of this Lease (had Landlord not
elected to terminate the Lease on account of such Event of Default) diminished
by any net sums thereafter received by Landlord through reletting the Leased
Premises during said period (after deducting expenses incurred by Landlord as
provided in Paragraph 18.F. hereof). Actions to collect amounts due by Tenant
provided for in this paragraph of this Paragraph 18.D. may be brought from time
to time by Landlord during the aforesaid period, on one (1) or more occasions,
without the necessity of Landlord's waiting until the expiration of such period,
and in no event shall Tenant be entitled to any excess of rental (or rental plus
other sums) obtained by reletting over and above the rental provided for in this
Lease.
E. In the event that Landlord elects to repossess the Leased
Premises without terminating this Lease, then Tenant shall be liable for and
shall pay to Landlord, at the address specified in Paragraph 1.C. hereof, all
rental and other indebtedness accrued to the date of such repossession, plus
rental required to be paid by Tenant to Landlord during the remainder of the
Term of this Lease until the expiration of the Term of this Lease, diminished
by any net sums thereafter received by Landlord through reletting the Leased
Premises during said period (after deducting expenses incurred by Landlord as
provided in Paragraph 18.F. hereof). In no event shall Tenant be entitled to any
excess of any rental obtained by reletting over and above the rental herein
reserved. Actions to collect amounts due by Tenant as provided in this Paragraph
18.E. may be brought from time to time, on one (1) or more occasions, without
the necessity of Landlord's waiting until the expiration of the Term of this
Lease.
F. In case of an Event of Default, Tenant shall also be liable for
and shall pay to Landlord, at the address specified in Paragraph 1.C. hereof, in
addition to any sum provided to be paid above: (i) broker's fees incurred by
Landlord in connection with reletting the whole or any part of the Leased
Premises, (ii) the cost of removing and storing Tenant's or other occupant's
property, (iii) the cost of reparing, altering, remodeling or otherwise putting
the Leased Premises into condition acceptable to a new tenant or tenants, and
(iv) all reasonable expenses incurred by Landlord in enforcing Landlord's
remedies, including reasonable attorneys' fees. Past due rental and other past
due payments shall bear interest from maturity at the highest lawful rate per
annum until paid.
G. In the event of termination or repossession of the Leased
Premises for an Event of Default, Landlord shall not have any obligation to
relet or attempt to relet the Leased Premises, or any portion thereof, or to
collect rental after reletting; but Landlord shall have the option to relet or
attempt to relet; and in the event of reletting, Landlord may relet the whole or
any portion of the Leased Premises for any period to any tenant and for any use
and purpose.
H. If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under
any obligation to do so and without thereby
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waiving such default, may make such payment and/or remedy such other default for
the account of Tenant (and enter the Leased Premises for such purpose), and
thereupon Tenant shall be obligated to, and hereby agrees to, pay Landlord, upon
demand, all costs, expenses and disbursements (including reasonable attorneys'
fees) incurred by Landlord in taking such remedial action.
I. In the event of any default by Landlord, except as expressly
provided in Paragraph 6.F. of this Lease, Tenant's exclusive remedy shall be an
action for damages (Tenant hereby waiving the benefit of any laws granting
Tenant a lien upon the property of Landlord and/or upon rental due Landlord),
but prior to any such action Tenant will give Landlord written notice specifying
such default with particularity, and Landlord shall thereupon have thirty (30)
days (plus such additional reasonable period as may be required in the exercise
by Landlord of due diligence) in which to cure any such default. Unless and
until Landlord fails to so cure any default after such notice, Tenant shall not
have any remedy or cause of action by reason thereof. All obligations of
Landlord hereunder will be construed as covenants, not conditions; and all such
obligations will be binding upon Landlord only during the period of Landlord's
possession of the Building and not thereafter.
The term "Landlord" shall mean only the owner, for the time being, of
the Building, and in the event of the transfer by such owner of its interest in
the Building, such owner shall thereupon be released and discharged from all
covenants and obligations of the Landlord thereafter accruing, but such
covenants and obligations shall be binding during the Term of this Lease upon
each new owner for the duration of such owner's ownership.
19. NONWAIVER. Neither acceptance of rental or other payments by Landlord
---------
nor failure by Landlord to complain of any action, nonaction or default of
Tenant shall constitute a waiver of any of Landlord's rights hereunder. Waiver
by Landlord of any right for any default of Tenant shall not constitute a waiver
of any right for either a subsequent default of the same obligation or any other
default. Receipt by Landlord of Tenant's keys to the Leased Premises shall not
constitute an acceptance of surrender of the Leased Premises.
20. HOLDING OVER. If Tenant should remain in possession of the Leased
------------
Premises after the expiration of the Term of this Lease, without the execution
by Landlord and Tenant of a new lease or an extension of this Lease, then Tenant
shall be deemed to be occupying the Leased Premises as a tenant-at-sufferance,
subject to all the covenants and obligations of this Lease and at a daily rental
of 150% of the per day rental provided for the last month of the Term of this
Lease, computed on the basis of a thirty (30) day month. The inclusion of the
preceding sentence shall not be construed as Landlord's consent for Tenant to
hold over. If any property not belonging to Landlord remains at the Leased
Premises after the expiration of the Term of this Lease, Tenant hereby
authorizes Landlord, after ten (10) business days prior written notice to
Tenant, to make such disposition of such property as Landlord may desire without
liability for compensation or damages to Tenant in the event that such property
is the property of Tenant; and in the event that such property is the property
of someone other than Tenant, Tenant agrees to indemnify and hold Landlord
harmless from all suits, actions, liability, loss, damages and expenses in
connection with or incident to any removal, exercise or dominion over and/or
disposition of such property by Landlord.
21. COMMON AREA. The Common Area, as defined in Paragraph 1.P. hereof,
-----------
shall be subject to Landlord's sole management and control and shall be operated
and maintained in such manner as Landlord in Landlord's discretion shall
determine. Landlord reserves the right to change from time to time the
dimensions and location of the Common Area, to construct additional stories on
the Building and to place, construct or erect new structures or other
improvements on any part of the Land without the consent of Tenant. Tenant, and
Tenant's employees and invitees shall have the nonexclusive right to use the
Common Area as constituted from time to time, such use to be in common with
Landlord, other tenants of the Building and other persons entitled to use the
same, and subject to such reasonable rules and regulations governing use as
Landlord may from time to time prescribe. Tenant shall not solicit business or
display merchandise within the Common Area, or distribute handbills therein, or
take any action which would interfere with the rights of other persons to use
the Common Area. Landlord may temporarily close any part of the Common Area for
such periods of time as may be necessary to prevent the public from obtaining
prescriptive rights or to make repairs or alterations.
22. RULES AND REGULATIONS. Tenant, and Tenant's agents, employees and
---------------------
invitees shall comply fully with all requirements of the rules and regulations
of the Building which are attached hereto as Exhibit C and made a part hereof.
---------
Landlord shall at all times have the right to change such rules and regulations
or to amend or supplement them in such manner as may be deemed advisable for the
safety, care and cleanliness of the Leased Premises and the Building and for
preservation of good order therein, all of which rules and regulations, changes
and amendments shall be forwarded to Tenant and shall be carried out and
observed by Tenant. Tenant shall further be responsible for the compliance with
such rules and regulations by the employees, agents and invitees of Tenant. Such
rules and regulations shall be applied uniformly to all tenants of the Building.
23. TAXES. Tenant shall be liable for the timely payment of all taxes
-----
levied or assessed against personal property, furniture or fixtures or equipment
placed by Tenant in the Leased Premises. If any such taxes for which Tenant is
liable are levied or assessed against Landlord or Landlord's property and if
Landlord elects to pay the same, or if the assessed value of Landlord's property
is increased by inclusion of personal property, furniture or fixtures or
equipment placed by Tenant in the Leased Premises, and Landlord elects to pay
the taxes based on such increase, Tenant shall pay to Landlord upon demand that
part of such taxes for which Tenant is liable hereunder.
24. INSURANCE. Tenant shall, at Tenant's expense, procure and maintain
---------
throughout the Term of this Lease a policy or policies of comprehensive public
liability insurance, contractual liability insurance and property damage
insurance, issued by insurers of recognized responsibility, authorized to do
business in the State in which the Building is located, insuring Tenant and
Landlord against any and all liability for injury to or death of a person or
persons, occasioned by or arising out of or in connection with the use or
occupancy of the Leased Premises, the limits of such policy or policies to be in
an amount of not less than $1,000,000 combined single limit with respect to any
one (1) occurrence, and shall furnish evidence satisfactory to Landlord of the
maintenance of such insurance. Tenant shall obtain a written obligation on the
part of each insurer to notify Landlord at least fifteen (15) days prior to
modification or cancellation of such insurance. In the event Tenant shall not
have delivered to Landlord a policy or certificate evidencing such insurance at
least fifteen (15) days prior to the Commencement Date and at least fifteen (15)
days prior to the expiration dates of each expiring policy, Landlord may obtain
such insurance as Landlord may reasonably require to protect Landlord's
interest. The cost for such policies shall be paid by Tenant to Landlord as
additional rental upon demand plus an administrative charge as determined by
Landlord.
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25. PARKING. Landlord hereby leases to Tenant and Tenant hereby leases
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from Landlord the number of parking spaces specified in Paragraph 1.S. hereof in
the parking facility from time to time associated with the Building at the
prevailing market rental established by Landlord from time to time for similar
parking spaces in such parking facility. Tenant shall pay to Landlord the
prevailing market rental from time to time established by Landlord for such
number of parking spaces as additional rental monthly together with and in
addition to Base Rental, whether or not such number of parking spaces are in
use. Tenant may not increase or decrease such number of parking spaces without
the prior written consent of Landlord. Tenant agrees to comply with such
reasonable rules and regulations as may be promulgated from time to time for the
use of such parking facility, including, without limitation, rules and
regulations requiring the parking of vehicles in designated spaces or areas to
the exclusion of other spaces or areas. Parking spaces will be unassigned,
provided that Landlord may at any time assign parking spaces. Tenant shall, if
requested by Landlord, furnish to Landlord a complete list of the license plate
numbers of all vehicles operated by Tenant, Tenant's employees and agents.
Landlord shall not be liable for any damage of any nature whatsoever to, or any
theft of, vehicles, or contents therein, in or about such parking facility.
During temporary periods of construction or repair, Landlord shall use
Landlord's best efforts to provide suitable substitute parking facilities in
reasonable proximity to the Building; provided, however, if for any reason
Landlord fails or is unable to provide suitable substitute parking facilities in
reasonable proximity to the Building, Landlord shall not be deemed to be in
default hereunder, but Tenant's obligation to pay the prevailing market rental
for any such parking spaces shall cease for so long as Tenant does not have the
use of such parking spaces and such abatement shall constitute full settlement
of all claims that Tenant might otherwise have against Landlord by reason of
such failure or inability to provide such parking spaces.
26. PERSONAL LIABILITY. The liability of Landlord to Tenant for any
------------------
default by Landlord under the terms of this Lease shall be limited to the
proceeds of sale on execution of the interest of Landlord in the Building and in
the Land, and neither Landlord, nor any party comprising Landlord, shall be
personally liable for any deficiency. This clause shall not be deemed to limit
or deny any remedies which Tenant may have in the event of default by Landlord
hereunder which do not involve the personal liability of Landlord.
27. NOTICE. Any notice which may or shall be given under the terms of this
------
Lease shall be in writing and shall be either delivered by hand (including
commercially recognized messenger and express mail service) or sent by United
States Mail, registered or certified, return receipt requested, postage prepaid,
if for Landlord, to the Building office and at the address specified in
Paragraph 1.C. hereof, or if for Tenant, to the Leased Premises or, if prior to
the Commencement Date, at the address specified in Paragraph 1.E. hereof, or at
such other addresses as either party may have theretofore specified by written
notice delivered in accordance herewith. Such address may be changed from time
to time by either party by giving notice as provided herein. Notice shall be
deemed given when delivered (if delivered by hand) or, whether actually received
or not, when postmarked (if sent by mail). If the term "Tenant" as used in this
Lease refers to more than one (1) person and/or entity, and notice given as
aforesaid to any one of such persons and/or entities shall be deemed to have
been duly given to Tenant.
28. LANDLORD'S MORTGAGEE. If the Building and/or Leased Premises are at
--------------------
any time subject to a ground lease, mortgage, deed of trust or other lien, then
in any instance in which Tenant gives notice to Landlord alleging default by
Landlord hereunder, Tenant will also simultaneously give a copy of such notice
to each Landlord's Mortgagee (provided Landlord or Landlord's Mortgagee shall
have advised Tenant of the name and address of Landlord's Mortgagee) and each
Landlord's Mortgagee shall have the right (but no obligation) to cure or remedy
such default during the period that is permitted to Landlord hereunder, plus an
additional period of thirty (30) days, and Tenant will accept such curative or
remedial action (if any) taken by Landlord's Mortgagee with the same effect as
if such action had been taken by Landlord.
29. BROKERAGE. Tenant represents and warrants that it has dealt with no
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broker, agent or other person in connection with this transaction, other than
Broker specified in Paragraph 1.R. hereof, and that no broker, agent or other
person brought about this transaction, other than Broker specified in Paragraph
1.R. hereof, and Tenant agrees to indemnify and hold Landlord harmless from and
against any claims by any other broker, agent or other person claiming a
commission or other form of compensation by virtue of having dealt with Tenant
with regard to this leasing transaction. The provisions of this Paragraph 29
shall survive the termination of this Lease.
30. PREPAID RENTAL. Landlord hereby acknowledges receipt from Tenant of
--------------
the sum stated in Paragraph 1.M. hereof to be applied to the first accruing
monthly installments of rental.
31. SPRINKLERS. If there now is or shall be installed in the Building
----------
a sprinkler system, and such system or any of its components shall be damaged or
injured or not in proper working order by reason of any act or omission of
Tenant, Tenant's agents servants, employees, licensees or visitors, then Tenant
shall forthwith restore the same to good working condition at Tenant's own
expense; and if the Board of Fire Underwriters or any bureau, department or
official of the state or local government require or recommend that any changes,
modifications, alterations or additional sprinkler heads or other equipment be
made or supplied by reason of Tenant's business, or the location of partitions,
trade fixtures or other contents of the Leased Premises, or for any other
reason, or if any such changes, modifications alterations, additional sprinkler
heads or other equipment become necessary to prevent the imposition of a penalty
or charge against the full allowance for a sprinkler system in the fire
insurance rate as fixed by the Board of Fire Underwriters, or by any fire
insurance company, Tenant shall, at Tenant's expense, promptly make and supply
such changes, modifications, alterations, additional sprinkler heads or other
equipment.
32. LICENSE FOR MICROWAVE DISH ANTENNA.
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A. Effective as of the Commencement Date, and subject to the terms,
provisions, and obligations of this Lease, for so long as the Lease remains in
full force and effect and there is no uncured Event of Default thereunder,
Landlord grants to Tenant a non-exclusive license to install, at Tenant's sole
cost and expense, a microwave dish antenna, not to exceed three (3) feet in
diameter on the roof of the Building. Additionally, subject to Landlord's prior
written approval of plans and specifications relating thereto, Tenant shall have
the right to install such wire, conduits, cables and other materials as
necessary to connect the microwave dish antenna to Tenant's allied machinery and
equipment (the microwave dish antenna and connecting material being collectively
referred to as the "Installation"). The specific location of the Installation
shall be subject to Landlord's prior written approval, such approval not be
unreasonably withheld or delayed. The Installation shall be used solely for the
purpose of providing communication services.
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B. Tenant shall construct and install the Installation, or have the
Installation constructed and installed, in a first class and workmanlike manner.
The Installation shall be constructed in accordance with plans and
specifications prepared or caused to be prepared by Tenant, at Tenant's sole
cost and expense, and approved in advance, in writing, by Landlord. The
Installation shall be constructed, installed, maintained and operated in
accordance with all applicable laws and ordinances and all covenants, conditions
and restrictions affecting the Project. Tenant shall, at Tenant's cost and
subject to reasonable security regulations of Landlord, repair and maintain the
Installation. Landlord agrees that Tenant and representatives designated by
Tenant and approved by Landlord shall have reasonable access to the Installation
in order to install, operate, maintain, inspect and remove as required, the
Installation, except when reasonable safety and security requirements of
Landlord preclude such access.
C. Tenant shall not commence the construction of any portion of the
Installation until (i) Landlord has approved, in writing, the contractors who
shall perform such work, and (ii) Tenant has delivered to Landlord releases or
waivers of mechanic's and materialmen's liens for such work by all parties who
shall furnish materials or services or perform labor of any kind in connection
with the Installation.
D. Landlord shall permit Tenant and Tenant's agents and contractors
to enter, at such times as are reasonably satisfactory to Landlord, applicable
portions of the Project in order that Tenant may perform, construct and install
the Installation. The foregoing license to enter the applicable portions of the
Project is conditioned upon Tenant's workmen and mechanics working in harmony
and not materially interfering with the labor employed by Landlord, Landlord's
mechanics or contractors, or with any other tenant or their contractors. Such
license is further conditioned upon workers' compensation and public liability
insurance and property damage insurance, all in amounts and with companies and
on forms reasonably satisfactory to Landlord, being provided and at all times
maintained by Tenant's contractors, and certificates of such insurance being
furnished to Landlord prior to proceeding with the work. If at any time such
entry shall cause material disharmony or interference to other tenants,
contractors or labor for any reason whatsoever including, without limitation,
strikes or other work stoppages, then this license may be immediately revoked by
Landlord unless such disharmony or interference is caused by the willful
misconduct or intentional acts by Landlord, Landlord's agents or contractors.
Such entry shall be deemed to be under all of the terms, covenants, provisions
and conditions of the Lease. Landlord shall not be liable in any way for any
injury, loss or damage which may occur to any of the Installation, the same
being solely at Tenant's risk.
E. Tenant shall indemnify and hold Landlord harmless from and
against any and all demands, liability, liens, claims, losses, costs and
expenses (including reasonable attorneys' fees) relating to or arising from the
design, construction, installation, operation and removal of the Installation.
Notwithstanding the fact that Landlord may, from time to time, review all
applicable plans and specifications and monitor the construction of the
Installation, Landlord shall have no obligation or liability to Tenant relating
to or arising from the workmanship or materials employed in the construction and
preparation of the Installation and the related planning and design services.
F. Landlord reserves the right to relocate the Installation at any
time and from time to time for a reasonable purpose to Landlord's operations or
utilization of the Project, and Tenant shall cause the Installation to be moved
to the new route at Tenant's cost within a reasonable time after notice from
Landlord containing the details of the new route, and the license granted in
this paragraph shall be deemed amended to the new route effective upon the
receipt of the notice. Landlord shall have the right, without liability to
Tenant, to remove the Installation from the previous location if Tenant has not
relocated the Installation to the new route within the permitted time period,
which removal may involve cutting any or all cables or otherwise interrupting
service through the Installation. In the event of such action, Tenant shall save
and hold Landlord harmless from and against any and all demands, liability,
liens, claims, losses, costs and expenses (including reasonable attorneys' fees)
relating to or arising from the removal of the Installation and any interruption
of service cause thereby.
G. Upon the expiration or earlier termination of the Term of this
Lease, Tenant shall remove the Installation and related improvements in a good
workmanlike manner, and Tenant will repair any damage occasioned by such
removal. If Tenant fails to remove the Installation within thirty (30) days
after the expiration or earlier termination of the Term of this Lease, Landlord
shall have the right, but not the obligation, to elect either (i) to remove the
Installation at Tenant's cost and expense, and Landlord shall have no liability
for the return of, or damage to, the Installation, or (ii) to treat the
Installation as abandoned by Tenant.
H. Landlord reserves the right to grant to other parties, as
Landlord may desire, the right to install telephone lines, conduit, cable, and
other telecommunications equipment and materials in, on, over, under and through
all or any portion of the Project. Tenant shall have no right to install
telephone lines, conduit, cable or telecommunications equipment or materials
other than as expressly defined and delineated in this Lease without the prior
written approval of Landlord, which approval may be withheld in Landlord's sole
and absolute discretion and/or conditioned upon such terms and conditions as
Landlord may, in its discretion, require.
33. INTERCONNECTION RIGHTS.
----------------------
A. Landlord acknowledges that the nature of Tenant's business may
require it to interconnect with other telecommunications companies which may
also be located in the Building. Landlord agrees that Tenant may, subject to
Landlord's prior written approval, which approval, subject to the following
provisions, shall not be unreasonably withheld:
i. install, maintain and use cable, conduits, wires, cable
ducts, telephone closets and ladder racks for the conduct of its business
between the Leased Premises and other parts of the Building; and
ii. directly connect to, interface with, or otherwise attach to,
the lines and facilities of the public utilities supplying electrical or
telephone services to the Building, for additional electric energy and
telephone connections to the Leased Premises.
B. In the event that Tenant desires to make any of the foregoing
modifications or improvements, Tenant shall provide written notice to Landlord
describing the type, size, location and manner of such desired modification or
improvement. Landlord shall, within three (3) business days of receipt of such
written notice, advise Tenant in writing of Landlord's approval or disapproval
of such requested modification or improvement, or of the requirement that Tenant
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submit detailed drawings and specifications of such modification or improvement.
If Landlord notifies Tenant of the requirement that Tenant submit detailed
drawings and specifications, Tenant may then elect to withdraw its request or
submit detailed drawings and specifications, at Tenant's sole cost and expense,
regarding such modification or improvement. In the event Tenant elects to
provide detailed drawings and specifications, Landlord shall have three (3)
business days from the receipt of such detailed drawings and specifications to
notify Tenant of Landlord's approval or disapproval of such modification or
improvement. Tenant agrees that Landlord's disapproval of any of the foregoing
modifications and improvements shall be reasonable if any such modifications or
improvements have a material negative impact on any Building electrical,
mechanical, plumbing or other system or the structural or aesthetic integrity of
the Building or if space is not available for such installation after taking
into consideration the needs of Landlord and of other tenants in the Building.
Subject to Landlord's prior written approval, Tenant shall have access to and
use of all common areas, lines, chase ways and ways of passage in the Building
and the Leased Premises necessary to effectuate the rights set forth in this
paragraph, provided said access and use does not interfere with the operation of
the Building, the existing equipment of other tenants or Landlord's obligations
to other tenants in the Building. Any installation carried out by Tenant
pursuant to this paragraph shall be at Tenant's sole cost and expense, shall be
performed in accordance with the other provisions of this Lease, and shall
comply with all applicable federal, state and local laws and ordinances. Tenant
agrees to indemnify and hold Landlord harmless from and against any and all
loss, cost, claim and liability (including all attorneys' fees) for injuries to
all persons and for damage to or loss of all property arising or alleged to
arise from any act or omission of Tenant or Tenant's agents, employees, or
contractors relating to the installation, maintenance, operation and removal of
such improvements, installations and modifications. Notwithstanding any contrary
provision herein, Landlord shall have the right to relocate, at Landlord's
expense, any and all of the improvements described in this Paragraph 33 to
another location in the Project, as Landlord shall elect at any time and
from time to time for a reasonable purpose to Landlord's operations or
utilization of the Project; provided, however, that no such relocation may have
any detrimental effect on Tenant's use and operation of such improvements.
Tenant shall cause such improvements to be moved to the new location within a
reasonable time after notice from Landlord containing the details of the new
location, and the license granted in this paragraph shall be deemed amended to
the new location effective upon the receipt of the notice. Landlord shall have
the right, without liability to Tenant, to remove such improvements from the
previous location if Tenant has not relocated such improvements to the new
location within the permitted time period, which removal may involve cutting any
or all cables or otherwise interrupting service through such improvements. In
the event of such action, Tenant shall save and hold Landlord harmless from and
against any and all demands, liability, liens, claims, losses, costs and
expenses (including reasonable attorneys' fees) relating to or arising from the
removal of such improvements and any interruption of service caused thereby.
C. Upon the expiration or earlier termination of the Term of this
Lease, Tenant shall remove any and all of the improvements described in this
Paragraph 33 in a good and workmanlike manner, and Tenant will repair any damage
occasioned by such removal. If Tenant fails to remove such improvements within
thirty (30) days after the expiration or earlier termination of the Term of this
Lease, Landlord shall have the right, but not the obligation, to elect either
(i) to remove such improvements at Tenant's cost and expense, and Landlord shall
have no liability for the return of, or damage to, such improvements, or (ii) to
treat such improvements as abandoned by Tenant.
34. EMERGENCY GENERATOR.
-------------------
A. Tenant shall have the right, subject to Landlord's weight stress,
load bearing and ventilation requirements and at Tenant's sole cost and expense,
to install and maintain an emergency generator at the location set forth on
Exhibit D attached hereto and made a part hereof for all purposes. Tenant shall
- - ---------
maintain, at Tenant's sole cost and expense, a fence around such emergency
generator. Additionally, subject to Landlord's prior written approval of plans
and specifications relating thereto, Tenant shall have the right to install such
wire, conduits, cables and other materials as necessary to connect such
emergency generator to the Leased Premises (the emergency generator and
connecting material, being collectively referred to as the "Generator
Installation"). Tenant shall be responsible for all costs and expenses arising
from and relating to the Generator Installation. The Generator Installation
shall be in compliance with all applicable federal, state and local laws and
ordinances and Tenant shall indemnify and hold Landlord harmless from and
against any and all loss, cost, claim and liability arising from Tenant's
failure to satisfy such requirement. Landlord agrees that Tenant and
representatives designated by Tenant and approved by Landlord shall have
reasonable access to the Generator Installation in order to install, operate,
maintain, inspect and remove as required, the Generator Installation, except
when reasonable safety and security requirements of Landlord preclude such
access. Landlord shall not unreasonably interfere with or impair Tenant's use,
operation, maintenance or repair of the Generator Installation. Subject to
Landlord's obligation not to unreasonably interfere with or impair Tenant's use,
operation, maintenance or repair of the Generator Installation, Landlord
reserves the right to lease space in the Project to other tenants, as Landlord
may desire, for any purpose, including the installation and operation of a
separate emergency generator. Notwithstanding any contrary provision contained
herein, Landlord shall have the right to relocate, at Landlord's sole expense,
the Generator Installation to another location in the Project, as Landlord shall
elect; provided, however, that no such relocation may result in any additional
cost or expense to Tenant or have any detrimental effect on Tenant's use and
operation of the Generator Installation.
B. Tenant agrees to indemnify and hold Landlord harmless from and
against any and all loss, cost, claim and liability (including all attorneys'
fees) for injuries to all persons and for damage to or loss of all property
arising or alleged to arise from any act or omission of Tenant or Tenant's
agents, employees, or contractors relating to the installation, maintenance,
operation or removal of the Generator Installation.
C. Upon the expiration or earlier termination of the Term of this
Lease, Tenant shall remove the Generator Installation and related improvements
in a good and workmanlike manner, and Tenant will repair any damage occasioned
by such removal. If Tenant fails to remove the Generator Installation within
thirty (30) days after the expiration or earlier termination of the Term of this
Lease, Landlord shall have the right, but not the obligation, to elect either
(i) to remove the Generator Installation at Tenant's cost and expense, and
Landlord shall have no liability for the return of, or damage to, the Generator
Installation, or (ii) to treat the Generator Installation as abandoned by
Tenant.
35. SUPPLEMENTAL HVAC.
-----------------
A. Tenant shall have the right to install and maintain, at Tenant's
sole cost and expense, supplemental air-conditioning equipment at the location
set forth on Exhibit D attached
---------
-15-
hereto. Tenant shall maintain, at Tenant's sole cost and expense, a fence
around such supplemental air conditioning equipment. Additionally, subject to
Landlord's prior written approval of plans and specifications relating thereto,
Tenant shall have the right to install such wire, conduits, cables and other
materials as necessary to connect such supplemental air conditioning equipment
to the Leased Premises (the supplemental air conditioning equipment and
connecting material being collectively referred to as the "HVAC Installation").
Landlord agrees not to unreasonably withhold or delay its approval regarding
matters involving the HVAC Installation on which Landlord's approval is
required. Tenant shall be responsible for all costs and expenses arising from
and relating to the HVAC Installation. The HVAC Installation shall be in
compliance with all applicable federal, state and local laws and ordinances and
Tenant shall indemnify and hold Landlord harmless from and against any all loss,
cost, claim and liability arising from Tenant's failure to satisfy such
requirement.
B. Tenant agrees to indemnify and hold Landlord harmless from and
against and all loss, cost, claim and liability (including all attorneys' fees)
for injuries to all persons and for damage to or loss of all property arising or
alleged to arise from any act or omission of Tenant or Tenant's agents,
employees, or contractors relating to the installation, maintenance, operation
or removal of the Installation, except to the extent such injury, damage or loss
of property is caused by Landlord's negligence or willful misconduct.
C. Landlord agrees that Tenant and representatives designated by
Tenant and approved by Landlord shall have reasonable access to the HVAC
Installation in order to install, operate, maintain, inspect and remove as
required, the HVAC Installation, except when reasonable safety and security
requirements of Landlord preclude such access. Landlord shall not unreasonably
interfere with or impair Tenant's use, operation, maintenance or repair of the
HVAC Installation.
D. Subject to Landlord's obligation not to unreasonably interfere with
or impair Tenant's use, operation, maintenance, or repair of the HVAC
Installation, Landlord reserves the right to lease space in the Project to other
tenants, as Landlord may desire, for any purpose, including the installation and
operation of supplemental air conditioning equipment.
E. Notwithstanding any contrary provision contained herein, Landlord
shall have the right to relocate, at Landlord's sole expense, the HVAC
Installation to another location in the Project, as Landlord shall elect;
provided, however, that no such relocation may result in any additional cost or
expense to Tenant or have any detrimental effect on Tenant's use and operation
of the HVAC Installation.
F. Upon the expiration or earlier termination of the Term of this
Lease, Tenant shall remove the HVAC Installation and related improvements in a
good workmanlike manner, and Tenant will repair any damage occasioned by such
removal. If Tenant fails to remove the HVAC Installation within thirty (30) days
after the expiration or earlier termination of the Term of this Lease, Landlord
shall have the right, but not the obligation, to elect either (i) to remove the
HVAC Installation at Tenant's costs and expense, and Landlord shall have no
liability for the return of, or damage to, the HVAC Installation, or (ii) to
treat the HVAC Installation as abandoned by Tenant.
36. TENANT FINISH.
-------------
A. Tenant shall construct or have constructed in a first class and
workmanlike manner the tenant finish improvements (the "Tenant Finish Work") to
be constructed and installed in the Leased Premises. The Tenant Finish Work
shall be constructed in accordance with plans and specifications (the "Plans")
prepared or caused to be prepared by Tenant, at Tenant's sole cost and expense,
and approved in advance, in writing, by Landlord, such approval not to be
unreasonably withheld or delayed; provided, however, that Landlord shall be
deemed to have reasonably withheld its consent if Landlord withholds its consent
because any proposed tenant finish improvements negatively impacts any system of
the Building including, without limitation, the Building's floor load-bearing
requirements or its mechanical, electrical, plumbing or HVAC systems. Landlord
agrees to review the Plans, to approve same or note any changes reasonably
required by Landlord, and return the Plans to Tenant within fifteen (15)
business days following Landlord's receipt of the Plans from Tenant ("Landlord's
Review Period"). In the event Landlord does not do so within Landlord's Review
Period, then the date of August 1, 1996 referenced in Paragraph 1.J. of this
Lease shall be delayed by one (1) day for each day in the period commencing on
the last day of Landlord's Review Period and ending on the day Landlord returns
the Plans to Tenant with Landlord's approval or requested changes. In the event
Landlord does not comply with the foregoing review process within thirty (30)
business days following receipt of the Plans from Tenant, Tenant may, as
Tenant's sole and exclusive remedy, terminate this Lease by delivering written
notice of such termination to Landlord prior to the date Landlord returns the
Plans to Tenant with Landlord's approval or Landlord's requested changes. The
Tenant Finish Work shall be constructed in accordance with all applicable
building laws and ordinances and all covenants, conditions and restrictions
affecting the Project. Tenant shall obtain Landlord's written approval of
Tenant's bid package prior to delivering the bid package to prospective
contractors, such approval not to be unreasonably withheld or delayed.
B. Tenant shall not commence the construction of any portion of the
Tenant Finish Work until Landlord has approved, in writing, the contractors who
shall perform the Tenant Finish Work, including, without limitation, the
mechanical, electrical, and plumbing contractors, such approval not to be
unreasonably withheld or delayed.
C. Landlord shall permit Tenant and Tenant's agents to enter the
Leased Premises as of May 1, 1996 in order that Tenant may perform the Tenant
Finish Work through Tenant's own contractors. The foregoing license to enter
prior to the Commencement Date is conditioned upon Tenant's workmen and
mechanics working in harmony and not materially interfering with the labor
employed by Landlord, Landlord's mechanics or contractors or with any other
tenant or their contractors. Such license is further conditioned upon workers'
compensation and public liability insurance and property damage insurance, all
in amounts and with companies and on forms reasonably satisfactory to Landlord,
being provided and at all times maintained by Tenant's contractors engaged in
the performance of the Tenant Finish Work, and certificates of such insurance
being furnished to Landlord prior to proceeding with the work. If at any time
such entry shall cause material disharmony or interference to other tenants,
contractors or labor for any reason whatsoever including, without limitation,
strikes or other work stoppages and if Tenant has not caused such disharmony or
interference to promptly cease following notice thereof to Tenant, then this
license may be immediately revoked by Landlord until such disharmony or
interference ceases. Such entry shall be deemed to be under all of terms,
covenants, provisions and conditions of the Lease. Landlord shall not be liable
in any way for any injury, loss or damage which may occur to any of the Tenant
Finish Work prior to or after the Commencement Date, the same being solely at
Tenant's risk.
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D. Tenant shall indemnify and hold Landlord harmless from and
against any and all demands, liability, liens, claims, losses, costs and
expenses (including reasonable attorneys' fees) relating to or arising from the
design, construction and installation of the Tenant Finish Work. Such indemnity
shall not apply where such demands, liability, claims, losses, costs and
expenses arise in whole or in part from the negligence of Landlord.
Notwithstanding the fact that Landlord may, from time to time, review all
applicable plans and specifications and monitor the progress of the Tenant
Finish Work, Landlord shall have no obligation or liability to Tenant relating
to or arising from the workmanship or materials employed in the construction and
preparation of the Tenant Finish Work and the related space planning and
architectural services.
E. The costs and expenses of installing and constructing the Tenant
finish Work shall be borne solely by Tenant; provided, however that Landlord
shall provide to Tenant an allowance (the "Finish Allowance") with respect to
the construction of the Tenant Finish Work in an amount equal to the product of
Five and 25/100 Dollars ($5.25) multiplied by the number of rentable square
feet of area located in the Leased Premises. The Finish Allowance shall be
disbursed to Tenant as follows:
(i) One-half (1/2) of the Finish Allowance shall be paid to Tenant
within thirty (30) days following (a) the completion of one-half (1/2) of
the Tenant Finish Work, as reasonably determined by a representative of
Landlord, and (b) Tenant's delivery to Landlord of the paid bills or
invoices for such work and unconditional releases or waivers of mechanic's
and materialmen's liens from all parties who have furnished materials or
services or performed labor of any kind in connection with the Tenant
Finish Work; and
(ii) The remainder of the Finish Allowance shall be paid to Tenant
within thirty (30) days following (a) the final completion of the Tenant
Finish Work, as reasonably determined by a representative of Landlord, and
(b) Tenant's delivery to Landlord of the paid bills or invoices for such
work and final unconditional releases or waivers of mechanic's and
materialmen's liens from all parties who have furnished materials or
services or performed labor of any kind in connection with the Tenant
Finish Work.
Tenant shall be entitled only to that portion of the Finish Allowance which is
evidenced by paid bills or invoices for Tenant Finish Work actually performed by
third parties, and any unused portion of the Finish Allowance as of the
Commencement Date shall be the sole and exclusive property of Landlord.
37. RIGHT OF FIRST REFUSAL. Provided this Lease is then in full force and
----------------------
effect and there is no uncured Event of Default hereunder, Tenant shall have the
right of first refusal to Lease additional space in the Building (the "ROFR
Area") identified as such on Exhibit A to this Lease. Such right of first
----------
refusal shall be exercisable at the following times and upon the following
conditions.
(a) If during the term of this Lease, Landlord receives a bona fide
offer from a prospective tenant (the "Prospective Tenant") to Lease premises
(the "Offered Premises") in the Building containing all or any part of the ROFR
Area, and Landlord desires to accept such offer, Landlord shall notify Tenant of
such fact. Tenant shall have a period of five (5) business days from the date of
delivery of such notice to notify Landlord whether Tenant elects to exercise the
right granted hereby to Lease the Offered Premises. If Tenant fails to give any
notice to Landlord within the required five (5) business day period, Tenant
shall be deemed to have refused its right to lease all or any portion of the
Offered Premises.
(b) If Tenant refuses its right to lease the Offered Premises,
either by giving written notice thereof or by failing to give any notice,
Landlord shall thereafter have the right to lease the Offered Premises to the
Prospective Tenant on such terms and provisions as may be acceptable to
Landlord, provided such terms and provisions are not more favorable than the
terms and provisions set forth in the notice from Landlord to Tenant. If
Landlord and the Prospective Tenant fail to enter into a Lease, Tenant shall
have the right of first refusal described herein with respect to any subsequent
bona fide offers from other prospective tenants.
(c) If Tenant exercises its right to Lease the Offered Premises,
Landlord and Tenant shall, within ten (10) days after Tenant delivers to
Landlord notice of its election, enter into a Lease agreement with respect to
the Offered Premises on the same terms, covenants, and conditions as are
contained in this Lease, except as follows:
(i) The rentable area of the Offered Premises shall be equal to the
area offered to be leased by the Prospective Tenant.
(ii) The Base Rental rate to be paid for the Offered Premises shall
be equal to the base rental rate offered to be paid by the Prospective
Tenant, including any offered increases from time to time in such rental
rate; provided, however, that in the event the date on which the term of
the lease offered to the Prospective Tenant (the "Prospective Tenant's
Term") expires is a date earlier than the date on which the Term of this
Lease expires, then the Base Rental rate to be paid for the Offered
Premises for the period commencing on the day following the date the
Prospective Tenant's Term would have expired shall be the then prevailing
market base rental rate per rentable square foot per annum charged for
comparable office space in comparable buildings in the central business
district of Dallas, Texas.
(iii) The Base Operating Expenses Rate in effect for the Offered
Premises shall be equal to the base operating expenses rate offered to the
Prospective Tenant, including any offered increases from time to time in
such rate.
(iv) The payment of monthly installments of Base Rental with respect
to the Offered Premises shall commence on the effective date of the lease
of the Offered Premises as offered to the Prospective Tenant, or in the
event no specific effective date was so offered, on the date mutually
acceptable to Landlord and Tenant, and rent for any partial month shall be
prorated.
(v) Possession of such portion of the Offered Premises shall be
delivered to Tenant on the basis offered to the Prospective Tenant,
provided, however, that in the event the date on which the Prospective
Tenant's Term expires is a date later than the date on which the Term of
the Lease expires, then the tenant finish allowance offered to the
Prospective Tenant shall be multiplied by a fraction, the numerator of
which shall be the total number of months (as of the effective date of the
demise of the Offered Premises) remaining in the Lease, and the denominator
of which shall be the total number of months contained in the term of the
Lease.
-17-
offered to the Prospective Tenant, and if no specific basis was so offered,
on a basis mutually acceptable to Landlord and Tenant. Landlord will use
reasonable diligence to make the Offered Premises available to Tenant as
soon after the effective date stated above as it can. Landlord shall not be
liable for the failure to give possession of the Offered Premises on said
date by reason of the holding over or retention of possession of any
tenant, tenants, or occupants, nor shall such failure impair the validity
of this Lease, nor extend the term hereof, but the rent for the Offered
Premises shall be abated until possession is delivered to Tenant and such
abatement shall constitute full settlement of all claims that Tenant might
otherwise have against Landlord by reason of said failure to give
possession of the Offered Premises to Tenant on the scheduled effective
date.
(vi) The term of the Lease of the Offered Premises shall commence on
the date determined pursuant to subparagraph (c) (iv) above, and shall
continue thereafter until the date on which the Term of the Lease
terminates.
(vii) In the event the date on which the Prospective Tenant's Term
expires is a date later than the date on which the Term of the Lease
expires, then any and all allowances and credits offered to the Prospective
Tenant shall be multiplied by a fraction, the numerator of which shall be
the total number of months (as of the effective date of the demise of the
Offered Premises) remaining in the Term of the Lease, and the denominator
of which shall be the total number of months contained in the term of the
lease offered to the Prospective Tenant.
(d) Notwithstanding anything herein to the contrary, Tenant's right
of first refusal pursuant to this paragraph shall be subordinate to any and all
rights, including without limitation, renewal rights, expansion rights, rights
of first refusal and rights of first offer, under any existing lease demising
premises in the Building. Landlord represents that there are no such superior
rights with respect to the ROFR Area.
(e) The right of refusal hereby granted Tenant shall cease on, and be
ineffective after, the expiration of the first five (5) years of the Term of
this Lease, whether or not any option to renew and extend this Lease is
exercised by Tenant.
(f) Any assignment or subletting by Tenant of this Lease, or any
termination of this Lease, shall terminate the refusal right of Tenant hereby
granted.
38. RENEWAL OPTION. If there is no uncured Event of Default hereunder,
--------------
Tenant shall have the right to renew the term of this Lease for one (1)
additional period of five (5) years upon the same terms, conditions and
provisions applicable to the then current term of this Lease (unless otherwise
expressly provided herein), except that the annual Base Rental for the
additional term of five (5) years shall be the greater of either:
(a) the product of (i) the number of rentable square feet then
contained in the Leased Premises multiplied by (ii) an amount equal to the
then prevailing market base rental rate per rentable square foot per annum
charged for comparable office space in comparable buildings in the central
business district of Dallas, Texas (taking into consideration use, location
and floor level, size of space, definition of rentable area, quality, age
and location of the applicable building, financial status of Tenant, rental
concessions, tenant improvements and refurbishment allowances, expense
stop, moving allowances, architectural allowances, parking rental
concessions, brokerage commissions, other inducements, the time the
particular rate under consideration became effective and all other relevant
factors); or
(b) the product of (i) the number of square feet of rentable area
then contained in the Leased Premises multiplied by (ii) the Base Rental
rate in effect with respect to the Leased Premises during the last year of
the then existing term of this Lease.
Tenant shall evidence its intent to exercise its right of renewal by
delivering to Landlord written notice ("Tenant's Notice") of Tenant's desire to
renew the Term of this Lease as aforesaid at least six (6) months (but not more
than twelve (12) months) prior to the expiration of the then current Term of
this Lease. Tenant's failure to timely deliver Tenant's Notice shall
automatically extinguish Tenant's right to renew detailed herein. Within thirty
(30) days following delivery of Tenant's Notice, Landlord shall deliver to
Tenant a written notice ("Landlord's Notice") specifying the Base Rental rate
per rentable square foot per annum for the additional term of five (5) years.
Tenant shall have thirty (30) days following delivery of Landlord's Notice to
notify Landlord in writing ("Tenant's Renewal Notice") of (i) Tenant's exercise
of its right to renew the Lease at the Base Rental rate proposed by Landlord,
(ii) Tenant's exercise of its right to renew the Lease but Tenant's contest of
the Base Rental rate proposed by Landlord, or (iii) Tenant's election not to
exercise its right to renew the Lease. Tenant's failure to timely deliver
Tenant's Renewal Notice shall automatically extinguish Tenant's right to renew
detailed herein. If Tenant fails to contest Landlord's designated Base Rental
rate in Tenant's Renewal Notice, Tenant shall be deemed to have waived its right
to so contest. Tenant's election to contest Landlord's designated Base Rental
rate in Tenant's Renewal Notice shall be deemed an exercise of Tenant's right to
renew the Term of the Lease with the Base Rental rate being the rate determined
by the below-described appraisal process.
In the event Tenant timely contests Landlord's designated Base Rental rate,
Landlord and Tenant shall attempt to agree upon the market base rental rate. In
the event Landlord and Tenant cannot agree upon the market base rental rate on
or before three (3) months prior to the expiration of the then current Term of
the Lease, Landlord and Tenant within ten (10) days thereafter, shall each
appoint and employ, at its cost, a real estate appraiser (who shall be a member
of the American Institute of Real Estate Appraisers (MAI) with a minimum of ten
years' experience in the area of office building appraisals or leasing in Dallas
County, Texas, and neither of whom shall be employees or former employees of
either Landlord or Tenant or otherwise affiliated with either Landlord or
Tenant) to appraise and establish the prevailing market base rental rate. The
two appraisers, thus appointed, shall meet promptly and attempt to agree upon
and designate a third appraiser meeting the qualifications set forth above
within ten (10) days after the last of the two appraisers were appointed. If
they are unable to agree on the third appraiser, either of the parties, after
giving five (5) days notice to the other, may apply to the appropriate court of
the county in which the Building is located for the selection of a third
appraiser meeting the qualifications stated above. Each of the parties shall
bear one-half of the cost of the appointment of the third appraiser and of the
third appraiser's fee. Within thirty (30) days after the selection of the third
appraiser, a majority of the appraisers shall agree upon the prevailing market
base rental rate. If a majority of the appraisers are unable to agree within the
stipulated time, then each appraiser shall render his separate appraisal within
such time, and the three appraisals shall be averaged in order to establish such
rate; provided, however, if the low appraisal and/or the high appraisal are more
than ten percent (10%) lower and/or higher than the middle appraisal, the low
appraisal and/or the high appraisal shall be
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disregarded. If only one appraisal is disregarded, the remaining two appraisals
shall be averaged in order to establish such rate. If both the low appraisal and
the high appraisal are disregarded, the middle appraisal shall establish such
rate. After the prevailing market base rental has been established, the
appraisers shall immediately notify the parties in writing. The decision of the
above-described appraisal process shall be binding upon the parties and
enforceable by a court of competent jurisdiction.
Tenant shall have no right to renew the Term of this Lease following the
expiration of the renewal term of five (5) years detailed herein.
39. MISCELLANEOUS.
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A. Provided Tenant complies with Tenant's covenants, duties and
obligations hereunder, Tenant shall quietly have, hold and enjoy the Leased
Premises subject to the terms and provisions of this Lease without hinderance
from Landlord or any person or entity claiming by, through or under Landlord.
B. In any circumstance where Landlord is permitted to enter upon the
Leased Premises during the Term of this Lease, whether for the purpose of curing
any default of Tenant, repairing damage resulting from fire or other casualty or
an eminent domain taking or is otherwise permitted hereunder or by law to go
upon the Leased Premises, no such entry shall constitute an eviction or
disturbance of Tenant's use and possession of the Leased Premises or a breach by
Landlord of any of Landlord's obligations hereunder or render Landlord liable
for damages for loss of business or otherwise or entitle Tenant to be relieved
from any of Tenant's obligations hereunder or grant Tenant any right of setoff
or recoupment or other remedy; and in connection with any such entry incident to
performance of repairs, replacements, maintenance or construction, all of the
aforesaid provisions shall be applicable notwithstanding that Landlord may elect
to take building materials in, to or upon the Leased Premises that may be
required or utilized in connection with such entry by Landlord.
C. [Intentionally Deleted.]
D. Landlord may restain or enjoin any breach or threatened breach of
any covenant, duty or obligation of Tenant herein contained without the
necessity of providing the inadequacy of any legal remedy or irreparable harm.
The remedies of Landlord hereunder shall be deemed cumulative, and no remedy of
landlord, whether exercised by Landlord or not, shall be deemed to be in
exclusion of any other. Except as may be otherwise herein expressly provided, in
all circumstances under this Lease where prior consent or permission of one (1)
party ("first party") is required before the other party ("second party") is
authorized to take any particular type of action, the matter of whether to grant
such consent or permission shall be within the sole and exclusive judgment and
discretion of the first party; and it shall not constitute any nature of breach
by the first party hereunder or any defense to the performance of any covenant,
duty or obligation of the second party hereunder that the first party delayed or
withheld the granting of such consent or permission, whether or not the delay or
withholding of such consent or permission was prudent or reasonable or based on
good cause.
E. In all instances where Tenant is required to pay any sum or do
any act at a particular indicated time or within an indicated period, it is
understood that time is of the essence.
F. The obligation of Tenant to pay all rental and other sums
hereunder provided to be paid by Tenant and the obligation of the Tenant to
perform Tenant's other covenants and duties hereunder constitute independent,
unconditional obligations to be performed at all times provided for hereunder,
save and except only when an abatement thereof or reduction therein is
hereinabove expressly provided for and not otherwise. Tenant waives and
relinquishes all rights which Tenant might have to claim any nature of lien
against or withhold, or deduct from or offset against any rental and other sums
provided hereunder to be paid Landlord by Tenant. Tenant waives and relinquishes
any right to assert, either as a claim or as a defense, that Landlord is bound
to perform or is liable for the nonperformance of any implied covenant or
implied duty of Landlord not expressly herein set forth.
G. Under no circumstances whatsoever shall Landlord ever be liable
hereunder for consequential damages or special damages.
H. Landlord retains the exclusive right to create any additional
improvements to structural and/or mechanical systems, interior and exterior
walls and/or glass, which Landlord deems necessary without the prior consent of
Tenant.
I. All monetary obligations of Landlord and Tenant (including,
without limitation, any monetary obligation of Landlord or Tenant for damages
for any breach of the respective covenants, duties or obligations of Landlord
or Tenant hereunder) are performable exclusively in the county in which the
Building is located.
J. The laws of the State in which the Building is located shall
govern the interpretation, validity, performance and enforcement of this Lease.
K. If any clause or provision of this Lease is or becomes illegal,
invalid, or unenforceable because of present or future laws or any rule or
regulation of any governmental body or entity, effective during the Term of this
Lease, the intention of the parties hereto is that the remaining parts of this
Lease shall not be affected thereby unless such invalidity is, in the sole
determination of Landlord, essential to the rights of both parties, in which
event Landlord has the right to terminate this Lease on written notice to
Tenant.
L. Tenant waives the benefits of all existing and future rental
control legislation and statutes and similar governmental rules and regulations,
whether in time of war of not, to the extent permitted by law. In the event that
any law, decision, rule or regulation of any governmental body having
jurisdiction shall have the effect of limiting for any period of time the amount
of rental or other charges payable by Tenant to any amount less than that
otherwise provided pursuant to this Lease, the following amounts shall
nevertheless be payable to Tenant: (i) throughout such period of limitation,
Tenant shall remain liable for the maximum amount of rental and other charges
which are legally payable (without regard to any limitation to the amount
thereof expressed in this Lease except that all amount payable by reason of this
paragraph shall not in the aggregate exceed the total of all amounts which would
otherwise be payable by Tenant pursuant to the terms of this Lease for the
period of limitation), (ii) at the termination of such period of limitation,
Tenant shall pay to landlord, on demand but only to the extent legally
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collectible by Landlord, any amounts which would have been due from Tenant
during the period of limitation but which were not paid because of such limiting
law, decision, rule or regulation, and (iii) for the remainder of the Term of
this Lease following the period of limitation, Tenant shall pay to Landlord all
amounts due for such portion of the Term of this Lease in accordance with the
terms hereof calculated as though there had been no intervening period of
limitation.
M. It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and tenant, Tenant's
use or occupancy of the Leased Premises, and any emergency statutory or any
other statutory remedy.
N. [Intentionally Deleted.]
O. No receipt of money by Landlord from Tenant after the expiration
of the Term of this Lease, or after the service of any notice, or after the
commencement of any suit, or after final judgment for possession of the Leased
Premises, shall reinstate, continue or extend the Term of this Lease or affect
any such notice, demand or suit or imply consent for any action for which
Landlord's consent is required.
P. In the event of variation or discrepancy, Landlord's original
copy of the Lease shall control.
Q. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires. The headings
of the Paragraphs of this Lease have been inserted for convenience only and are
not to be considered in any way in the construction or interpretation of this
Lease.
R. Tenant agrees that Tenant shall from time to time upon request by
Landlord and/or Landlord's Mortgagee execute and deliver to Landlord a statement
in recordable form certifying (i) that the Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect as so modified), (ii) the dates to which rental and other charges
payable under this Lease have been paid, and (iii) that Landlord is not in
default hereunder (or, if Landlord is in default, specifying the nature of such
default). Tenant further agrees that Tenant shall from time to time upon
request by Landlord execute and deliver to Landlord an instrument in recordable
form acknowledging Tenant's receipt of any notice of assignment of this Lease by
Landlord.
S. In no event shall Tenant have the right to create or permit there
to be established any lien or encumbrance of any nature against the Leased
Premises or the Building for any improvement or improvements by Tenant, and
Tenant shall fully pay the cost of any improvement or improvements made or
contracted for by Tenant. Any mechanic's lien filed against the Leased Premises
or the Building for work claimed to have been done, or materials claimed to have
been furnished to Tenant, shall be duly discharged by Tenant within ten (10)
days after the filing of the lien.
T. Whenever a period of time is herein prescribed for action to be
taken by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation for any such period of time, and delays
due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions, or any other causes of any kind
whatsoever which are beyond the reasonable control of Landlord.
U. This Lease shall not be recorded by either party without the
consent of the other.
V. Nothing herein contained shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent, or of partnership or of joint venture between the parties
hereto, it being understood and agreed that neither the method of the
computation of rental, nor any other provision contained herein, nor any acts of
the parties hereto, shall be deemed to create any relationship between the
parties hereto other than the relationship of Landlord and tenant.
W. Whenever it is provided herein that a monetary sum shall be due
to Landlord or Tenant together with interest at the highest lawful rate, if at
such time there shall be no highest rate prescribed by applicable law, interest
shall be due at the rate of two percent (2%) in excess of Prime Rate as defined
in Paragraph 1.Q. hereof.
X. Tenant acknowledges that Landlord's agents and employees have
made no representations or promises with respect to the Leased Premises or the
Building except as herein expressly set forth, and Tenant further acknowledges
that no rights, easement or licenses are acquired by Tenant by implication or
otherwise, except as herein expressly set forth.
Y. Tenant warrants that Tenant is, and shall remain throughout the
Term of this Lease, authorized to do business and in good standing in the State
in which the Building is located. Tenant agrees, upon request by Landlord, to
furnish Landlord satisfactory evidence of Tenant's authority for entering into
this Lease.
Z. If either party brings an action to enforce the terms hereof or
declare rights hereunder, the prevailing party in any such action, on trial or
appeal, shall be entitled to his reasonable attorney's fees to be paid by the
losing party as fixed by the court.
AA. In the event Tenant requests from Landlord the written consent of
Landlord to any propose assignment of the Lease or subletting of the Leased
Premises, Landlord may require the payment of reasonable attorney's fees
incurred by Landlord in processing such request, regardless of whether such
consent is granted. Such fee shall be payable by Tenant within thirty (30) days
following receipt by Tenant or a request for payment from Landlord and on
invoice from Landlord's attorney setting forth in reasonable detail the services
rendered.
BB. Submission of this Lease for examination does not constitute an
offer, right of first refusal, reservation of, or option for, the Leased
Premises of any other premises in the Building. This Lease shall become
effective only upon execution and delivery by both Landlord and Tenant.
CC. If Tenant is composed of more that one (1) person or entity, each
person and/or entity comprising Tenant shall be jointly and severally liable
for the performance of the obligations of Tenant under this Lease, including
specifically, without limitation, the payment of rental and all other sums
payable hereunder.
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DD. Landlord shall have the right at any time to change the name or
street address of the Building and to install and maintain a sign or signs on
the interior or exterior of the Building.
EE. Any charges against Tenant by Landlord for services or for work
done on the Leased Premises by order of Tenant, or otherwise accruing under this
Lease, shall be considered as rental due and shall be included in any lien for
rental.
FF. If at any time during the Term of this Lease a tax or excise on
rental, a sales tax or other tax however described (except any inheritance,
estate, gift, income or excess profit tax imposed upon Landlord) is levied or
assessed against Landlord by any taxing authority having jurisdiction on account
of Landlord's interest in this Lease, or the rentals or other charges payable
hereunder, as a substitute in whole or in part for, or in addition to, the taxes
described elsewhere in this paragraph. Tenant shall pay to Landlord as
additional rental upon demand the amount of such tax or excise. In the event
that any such tax or excise is levied or assessed directly against Tenant,
Tenant shall pay the same at such times and in such manner as such taxing
authority shall require.
GG. Tenant has no right to protest the real estate tax rate assessed
against the Project and/or the appraised value of the Project determined by any
appraisal review board or other taxing entity with authority to determine tax
rates and/or appraised values (each a "Taxing Authority"). Tenant hereby
knowingly, voluntarily and intentionally waives and releases any right, whether
created by law or otherwise, to (a) file or otherwise protest before any Taxing
Authority any such rate or value determination even though Landlord may elect
not to file any such protest; (b) receive, or otherwise require Landlord to
deliver, a copy of any reappraisal notice received by Landlord from any Taxing
Authority; and (c) appeal any order of a Taxing Authority which determines any
such protest. The foregoing waiver and release covers and includes any and all
rights, remedies and recourse of Tenant, now or at any time hereafter, under
Section 41.413 and Section 42.015 of the Texas Tax Code (as currently enacted or
hereafter modified) together with any other or further laws, rules or
regulations covering the subject matter thereof. Tenant acknowledges and agrees
that the foregoing waiver and release was bargained for by Landlord and Landlord
would not have agreed to enter into this Lease in the absence of this waiver and
release. If, notwithstanding any such waiver and release, Tenant files or
otherwise appeals any such protest, then Tenant will be in default under this
Lease and, in addition to Landlord's other rights and remedies, Tenant must pay
or otherwise reimburse Landlord for all costs, charges and expenses incurred by,
or otherwise asserted against, Landlord as a result of any tax protest or appeal
by Tenant, including, appraisal costs, tax consultant charges and attorneys'
fees (collectively, the "Tax Protest Costs"). If, as a result of Tenant's tax
protest or appeal, the appraised value for the Project is increased above that
previously determined by the Taxing Authority (such increase, the "Value
Increase") for the year covered by such tax protest or appeal (such year, the
"Protest Year"), then Tenant must pay Landlord, in addition to all Tax Protest
Costs, an amount (the "Additional Taxes") equal to the sum of the following: (1)
the product of the Value Increase multiplied by the tax rate in effect for the
Protest Year; plus (ii) the amount of additional taxes payable during the five
(5) year period following the Protest Year, such amount to be calculated based
upon the Value Increase multiplied by the tax rate estimated to be in effect for
each year during such five (5) year period. Tenant must pay all Additional
Taxes - even those in excess of Tenant's proportionate share and which may
relate to years beyond the term of this Lease. The Additional Taxes will be
conclusively determined by a tax consultant selected by Landlord, without regard
to whether and to what extent Landlord may be able in years following the
Protest Year to reduce or otherwise eliminate any Value Increase. All Tax
Protest Costs and Additional Taxes must be paid by Tenant within five (5) days
following written demand by Landlord.
40. ENTIRE AGREEMENT AND BINDING EFFECT. This Lease and any
-----------------------------------
contemporaneous workletter, addenda or exhibits signed by the parties constitute
the entire agreement between Landlord and Tenant; no prior written or prior
contemporaneous oral promises or representations shall be binding. This Lease
shall not be amended, changed or extended except by written instrument signed by
both parties hereto. The provisions of this Lease shall be binding upon and
inure to the benefit of the heirs, personal representatives, successors and
assigns of the parties, but this provision shall in no way alter the restriction
herein in connection with assignment, subletting and other transfer by Tenant.
EXECUTED in multiple counterparts, each of which shall have the force and
effect of an original, on the date specified in Paragraph 1.A. hereof.
LANDLORD:
---------
BEVERLY HILLS CENTER LLC,
a California limited liability company
By: /s/ Ted Akhavizadeh
---------------------------
Name: Ted Akhavizadeh
-------------------------
Title: Vice President
------------------------
TENANT:
------
PREMIERE COMMUNICATIONS, INC.,
a Florida corporation
By: /s/ Patrick G. Jones
---------------------------
Name: Patrick G. Jones
-------------------------
Title: Senior Vice President
------------------------
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FIRST AMENDMENT TO LEASE AGREEMENT
----------------------------------
This FIRST AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and entered
into as of (but not necessarily on) the 1st day of August, 1996, by and between
BEVERLY HILLS CENTER, LLC, a California limited liability company ("Landlord")
and PREMIERE COMMUNICATIONS, INC., a Florida corporation ("Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement (the
"Lease"), dated May 12, 1996 covering approximately 6,952 rentable square feet
on the eighth (8th) floor in the building commonly known as Allianz Financial
Centre (the "Building"), in Dallas, Texas; and
WHEREAS, Landlord and Tenant desire to modify the terms of the Lease in
accordance with the terms and conditions herein provided.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration paid by each party hereto to the
other, the receipt and sufficiency of which is hereby acknowledged. Landlord
and Tenant hereby agree as follows:
1. Conduits. Effective as of August 1, 1996, the Lease shall be amended to
--------
reflect that Tenant shall be entitled to the following additional conduit or
equivalent cable runs (the "Additional Conduit") in the risen facilities of the
Building:
. One four-inch conduit or equivalent cable run
. One two-inch conduits or equivalent cable runs
. One one and one-fourth inch conduit or equivalent cable run
. Three one-inch conduits or equivalent cable runs
. Four two and one-half inch conduits or equivalent cable runs
2. Base Rental. Tenant's Base Rental obligations with respect to the
-----------
Additional Conduit shall commence on August 1, 1996 and shall be $26,050 per
year, payable in monthly installments of $2,337,50. Tenant shall pay an
additional Right Fee for any and all additional conduit or equivalent cable
runs, beyond the additional conduit specifically described herein, installed on
behalf of or used by Tenant, regardless of the use to which such conduit or
equivalent cable run is put, including, interconnection rights, emergency
generator, or supplementary HVAC.
3. Miscellaneous.
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(a) Tenant hereby acknowledges that Landlord is not in default under the
Lease and no event or condition exists, which, with the giving of notice or the
passing of time or both, would constitute a default or event of default by
Landlord under the Lease, and that Tenant has no charge, lien, defense, or claim
of offset under the Lease against rent or other charges due or to become due
thereunder.
(b) This Amendment may be executed in multiple counterparts, each of which
shall constitute an original instrument, but all of which shall constitute one
and the same Amendment.
(c) Any capitalized term or phrase used in this Amendment shall have the
same meaning as the meaning ascribed to such term or phrase in the Lease unless
expressly otherwise defined in this Amendment.
(d) Except as amended by this Amendment, the terms of this Lease remain in
full force and effect. All obligations of Tenant under the Lease are hereby
satisfied and reaffirmed.
(e) In the event that the terms of the Lease conflict or are inconsistent
with those of this Amendment, the terms of this Amendment shall govern.
(f) This Amendment shall become effective only upon execution and delivery
by both Landlord and Tenant.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
on the day and year first written above.
LANDLORD:
BEVERLY HILLS CENTER, L.L.C., a California
Limited Liability Company
By: /s/ Ted Akhavizadeh
----------------------------
Name: Ted Akhavizadeh
Title: Vice President
TENANT:
PREMIERE COMMUNICATIONS, INC.
a Florida Corporation
By: /s/ Patrick G. Jones
----------------------------
Name: Patrick G. Jones
Title: Senior Vice President