1
STANDARD INDUSTRIAL LEASE AGREEMENT 2301 Chovanetz Court
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COMMERCIAL -AEW- CIIF II - 97 Irving, Texas
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P:\LEASENEG\CIIF2LSE.DOC 0507-0853-1301
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THIS LEASE AGREEMENT, made and entered into by and between CIIF ASSOCIATES II
LIMITED PARTNERSHIP BY: AEW ADVISORS (FORMERLY KNOWN AS COPLEY ADVISORS, INC).
hereinafter referred to as "Landlord", and GLOBENET INTERNATIONAL I, INC., A
DELAWARE CORPORATION hereinafter referred to as "Tenant";
WITNESSETH:
1. PREMISES AND TERM.
A. In consideration of the mutual obligations of Landlord and Tenant set
forth herein, Landlord leases to Tenant, and Tenant takes from Landlord the
approximately 119,192 square feet more particularly outlined on the floor plan,
attached as Exhibit "A-1" (the "Premises"), which Premises are part of that
approximately 119,192 square foot building (the "Building") located on the real
property situated within the County of DALLAS, State of Texas, which real
property is more particularly described on EXHIBIT "A" attached hereto and
incorporated herein by reference (the "Land"), together with all rights,
privileges, easements, appurtenances, and amenities belonging to or in any way
pertaining to the Premises, to have and to hold, subject to the terms, covenants
and conditions in this Lease. If more than one building is located on the Land,
then all referenced herein to "Building" shall be deemed to refer to all such
buildings collectively unless the context otherwise requires.
B. The term of this Lease shall commence upon the later of: (i) AUGUST 1,
1998, or (ii) if Landlord is required to construct improvements in the Premises
pursuant to Paragraph 1.C. below, on the third day following the date of
substantial completion of any such alterations or improvements to the Premises
described in Paragraph 1.C. below (the "Commencement Date"). The term of this
Lease shall end on the last day of the calendar month that is 123 full calendar
months after the Commencement Date.
C. If an Exhibit "B" is attached hereto, then Landlord shall construct and
install in the Premises those improvements and alterations to be constructed and
installed by Landlord pursuant to the plans and specifications described on such
Exhibit "B" attached hereto and incorporated herein by reference (the "Plans").
Landlord will entertain Tenant's suggestion of a general contractor to complete
construction of the Plans if such contractor meets with Landlord's approval and
Landlord's standard requirements for a contractor. As used herein, the term
"substantial completion" or "substantially completed" shall mean that, in the
opinion of the architect or space planner that prepared the Plans, such
improvements have been completed in accordance with the Plans and the Premises
are in good and satisfactory condition, subject only to completion of minor
punch list items. As soon as such improvements have been substantially
completed, Landlord shall notify Tenant in writing that the Commencement Date
has occurred. Within ten (10) days thereafter, Tenant shall submit to Landlord
in writing a punch list of items needing completion or correction. Landlord
shall use its best efforts to complete such items within thirty (30) days after
the receipt of such notice. In the event Tenant, its employees, agents or
contractors cause construction of such improvements to be delayed, the
Commencement Date shall be deemed to be the date that, in the reasonable opinion
of Landlord, substantial completion would have occurred if such delays had not
taken place.
2. BASE RENT, SECURITY DEPOSIT AND ESCROW PAYMENTS.
A. Tenant agrees to pay to Landlord Base Rent (herein so called) for the
Premises, in advance, without demand, deduction or set off, at the rate, as set
forth in the Base Rent Schedule attached as Exhibit "C" attached hereto, per
month during the term hereof. One such monthly installment, plus the other
monthly charges set forth in Paragraph 2.C.(b) below, shall be due and payable
on the date hereof and a like monthly installment shall be due and payable on or
before the first day of each calendar month succeeding the Commencement Date;
provided, however, that should this Lease commence on a day other than the first
day of a calendar month or terminate on a day other than the last day of a
calendar month, the rental for such partial month shall be prorated.
See Paragraph 27.
B. In addition, Tenant shall deposit with Landlord on the date hereof the
sum of Fifty-Four Thousand Six Hundred Thirty and 00/100 Dollars ($ 54,630.00
(the "Security Deposit"), which shall be held by Landlord as security for the
performance of Tenant's obligations under this Lease, it being expressly
understood and agreed that the Security Deposit is not an advance rental deposit
or a measure of Landlord's damages in case of an event of default. Upon each
occurrence of an event of default, Landlord may use all or part of the Security
deposit to pay past due rent or other payments due Landlord under this Lease,
and the cost of any other damage, injury, expense or liability, chargeable to
Tenant hereunder, without prejudice to any other remedy provided herein or
provided by law. On demand, Tenant shall pay Landlord the amount that will
restore the Security Deposit to its original amount. The Security Deposit shall
be deemed the property of Landlord, but any remaining balance of the Security
Deposit shall be returned by Landlord to Tenant when Tenant's obligations under
this Lease have been fulfilled. The amount of the Security Deposit will be
decreased to the sum of Twenty Seven Thousand Three Hundred Fifteen and 00/100
Dollars ($ 27,315.00) if Tenant performs all of the following obligations: (1)
Tenant meets all of its annual revenue projections through December 1999 as set
forth on Exhibit "D" attached hereto, and (2) Tenant's annual revenue
projections through December 1999 as set forth on Exhibit D are verified in the
annual 10-K filed with the Security Exchange Commission. At no time shall the
minimum balance of the Security Deposit be less than the sum of Fifty Four
Thousand Six Hundred Thirty and 00/100 Dollars ($ 54,630.00) unless Tenant meets
the requirements set forth in the preceding sentence and Landlord provides
written notice of such reduction of the Security Deposit, which notice shall not
be unreasonably withheld.
See Paragraph 29.
C. Tenant agrees to pay, as additional rent, its Proportionate Share (as
defined in Paragraph 22.B. below) of (1) Taxes (hereinafter defined) payable to
Landlord pursuant to Paragraph 3.A. below, (2) the cost of any utilities used in
the Building which are not otherwise paid for by Tenant pursuant to Paragraph 8,
below or billed separately to another tenant of the Building, (3) the cost of
any insurance maintained by Landlord on the Building or operating expenses
required by this Lease, including, without limitation, those
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expenses referred to in Paragraph 5.D. hereof (but excluding those expenses
otherwise specifically paid for by Tenant pursuant to the terms hereof or
expenses billed separately to other tenants of the Building). During each month
of the term of this Lease, on the same day that Base Rent is due hereunder,
Tenant shall escrow with Landlord an amount equal to 1/12 of Landlord's
estimate of annual cost of its Proportionate Share of such items. Tenant
authorizes Landlord to use the funds deposited with Landlord under this
Paragraph 2.C. to pay such costs. The initial monthly escrow payments are based
upon Landlord's estimate of amounts for the year in question, and shall be
increased or decreased annually to reflect the projected actual cost of all such
items. If Tenant's total escrow payments are less than Tenant's actual
Proportionate Share of all such items, Tenant shall pay the difference to
Landlord within ten (10) days after demand. If the total escrow payments of
Tenant are more than Tenant's actual Proportionate Share of all such items,
Landlord shall retain such excess and credit it against Tenant's next annual
escrow payments. The amount of the monthly rental and the initial monthly escrow
payments are as follows:
(a) Base Rent as set forth In Paragraph 2.A $ 27,315.00
(b) Taxes as set forth in Paragraph 2.C.(1) $ 5,760.00
(c) Utilities, Insurance and other Operating Expenses as set forth in
Paragraphs 2.C.(2). and (3) $ 2,186.00
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$ 35,261.00
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D. In calculating the annual cost of the items described in subparagraph C
above, if during any period during the relevant year the Building is less than,
one hundred percent (100%) occupied, then in computing the amount of Tenant's
obligations Landlord shall "gross-up" the amount of any of Landlord's expenses
which fluctuate with Building occupancy to the amount which, in Landlord's
reasonable estimation, such fluctuating expenses would have been if the Building
had been one hundred percent (100%) occupied for the entire year. Tenant will
then pay Tenant's Proportionate Share of such grossed-up amount so that the
actual amount paid by Tenant in respect of such fluctuating expenses is not
affected by occupancy or non-occupancy of the remainder of the Building.
3. TAXES
A. Landlord agrees to pay all taxes, assessments and/or governmental
charges of any kind and nature (collectively referred to herein as "Taxes") that
accrue against the Premises, the Land and/or the Building. If at any time during
the term of this Lease, there shall be levied, assessed or imposed on Landlord a
capital levy or other tax directly on the rents received hereunder and/or a
franchise tax, assessment, levy or charge measured by or based, in whole or in
part upon such rents from the Premises, the Land and/or the Building, then all
such taxes, assessments, levies or charges, or the part thereof so measured or
based, shall be deemed to be included within the term "Taxes" for the purposes
hereof. The Landlord shall have the right to, or upon Tenant's demand Landlord
shall, employ a tax consulting firm to attempt to assure a fair tax burden on
the Building and the Land within the applicable taxing jurisdiction. Tenant
agrees to pay its Proportionate Share of the cost of such consultant. In
addition, if the Building is a multiple occupancy Building and the cost of any
improvements constructed on the Premises is disproportionately higher than the
cost of improvements constructed on the premises of other tenant's of the
Building, then the Landlord, at its option, may require that Tenant pay the
amount of Taxes attributable to such disproportionately more expensive
improvements in addition to its Proportionate Share of Taxes.
B. Prior to delinquency, Tenant shall (i) pay all taxes levied or assessed
against any personal property or fixtures placed in the Premises, and (ii) upon
the request of Landlord, deliver to Landlord receipts from the applicable taxing
authority or other evidence acceptable to Landlord to verify that such taxes
upon personal property and fixtures have been paid by Tenant. If any such taxes
are levied or assessed against Landlord or Landlord's property and (i) Landlord
pays the same or (ii) the assessed value of Landlord's property is increased by
inclusion of such personal property and fixtures and Landlord pays the increased
taxes, then, upon demand Tenant shall pay to Landlord such taxes.
4. LANDLORD'S REPAIRS
A. Tenant understands and agrees that this Lease is intended to be a "net"
lease, and as such, Landlord's maintenance, repair and replacement obligations
am limited to those set forth in this Paragraph 4.A. Landlord, at its own cost
and expense, shall be responsible for repair and replacement of only the roof,
the foundation and the structural members of the exterior walls of the Building.
The terms "roof" and "walls" as used herein shall not include skylights,
windows, glass or plate glass, doors, special store fronts or office entries.
Tenant shall immediately give Landlord written notice of defect or need for
repairs, after which Landlord shall have reasonable opportunity to repair same
or cure such defect. Landlord's liability with respect to any defects, repairs,
replacement or maintenance for which Landlord is responsible hereunder shall be
limited to the cost of such repairs or maintenance or the curing of such defect.
B. Landlord reserves the right to perform Tenant's maintenance, repair and
replacement obligations and any other items that are otherwise Tenant's
obligations under Paragraph 5.B, in which event, Tenant shall pay to Landlord
any cost or expense incurred by Landlord in making such repairs within ten (10)
days after demand.
5. TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS.
A. Tenant, at its own cost and expense, shall maintain all parts of the
Premises (except those for which Landlord is expressly responsible hereunder) in
good condition, ordinary wear and tear excepted, and promptly make all necessary
repairs and replacements to the Premises.
B. In addition to Tenant's obligations under the preceding subparagraph A.,
if Tenant is the only tenant of the Building, Tenant shall be responsible for
causing the parking areas, driveways, alleys and grounds surrounding the
Premises to be maintained in a good, neat, clean and sanitary condition,
consistent with the operation of a first class office/warehouse building, which
includes, without limitation, prompt maintenance, repairs and replacements (1)
of any drill or spur track servicing the Premises, (2) of the parking area
associated with the Building, (3) of all grass, shrubbery and other landscape
treatments surrounding the Building, (4) of the exterior of the Building
(including painting), (5) of sprinkler systems and sewage lines, and (6) of any
other maintenance, repair or replacement items
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normally associated with the foregoing. In addition, Tenant shall repair and pay
for any damage caused by the negligence of Tenant or Tenant's employees, agents
or invitees, or caused by Tenant's default hereunder.
C. In the event that the Tenant is not the sole tenant of the Building,
then subject to payment by Tenant, Landlord shall perform the maintenance,
repair, and replacement obligations set forth in the foregoing subparagraph B.
Tenant shall pay its Proportionate Share of the cost and expense of such repair,
replacement, replacement reserve, maintenance and other such items as additional
rent, pursuant to Paragraph 2.C. above. The amount of Tenant's rental obligation
set forth in Paragraph 2.A. above does not include the cost of such items, and
Landlord's performance or repair, replacement, maintenance and other items, is
not a condition to payment of such rental obligation.
D. Tenant agrees to pay as additional rent (pursuant to Paragraph 2.C.
above) its Proportionate Share of the cost of (1) operation, maintenance and/or
landscaping of any property or facility that is operated, maintained or
landscaped by any property owner or community owner association that is named in
any restrictive covenants or deed restrictions to which the Premises are subject
and which are actually billed to the Building, and (2) operating and maintaining
any property, facilities or services provided for the common use of Tenant and
other Tenants of the Building, which costs shall include, without limitation,
management fees, maintenance and repair costs, sewer, landscaping trash and
security (if furnished by Landlord), wages and employee benefits payable to
employees of Landlord whose duties are connected with the operation and
maintenance of the Building, amounts paid to contractors or subcontractors for
work or services performed in connection with the operation and maintenance of
the Building, all service, supplies, repairs, replacements or other expenses for
maintaining and operating the Building, and any other facilities or services
provided for the common use of Tenant and other Tenants of the Building.
E. Within ten days after the Commencement Date and continuing for the
entire term of this Lease, Tenant shall enter into a regularly scheduled
preventive maintenance/service contract with a maintenance contractor reasonably
acceptable to Landlord for servicing hot water, heating, air conditioning,
and/or other systems and equipment within the Premises with a contractor, and
Tenant shall be responsible for all costs and expenses required thereunder. At
least 14 days before the end of the Term, Tenant shall deliver to Landlord a
certificate from an engineer or licensed mechanical contractor reasonably
acceptable to Landlord certifying that the hot water equipment and the HVAC
System are then in good repair and working order.
F. Tenant agrees to sign a joint maintenance agreement with the railroad
company, if any, servicing the Premises if requested by the railroad company.
Landlord shall have the right to coordinate all repairs and maintenance of any
rail tracks serving or intended to serve the Premises and, if Tenant uses
such-rail tracks, Tenant shall reimburse Landlord from time to time, upon
demand, for its Proportionate Share of the costs of such repairs and maintenance
and any other sums specified in any agreement respecting such tracks to which
Landlord is a party.
6. ALTERATIONS. Tenant shall not make any alterations, additions or
improvement to the Premises without the prior written consent of Landlord,
Tenant, at its own cost and expense, may erect such shelves, bins, machinery and
trade fixtures as it desires provided that (a) such items do not alter the basic
character of the Premises or the Building; (b) such items do not overload or
damage the same; (c) such items may be removed without injury to the Premises;
and (d) the construction, erection or installation thereof complies with all
applicable governmental laws, ordinances, regulations and with Landlord's
specifications and requirements. All installations, removals and restoration
shall be performed a good and workmanlike manner so as not to damage or alter
the primary Structure or structural qualities of the Building or the Premises.
7. SIGNS. Tenant shall not place, install or attach any signage,
decorations, advertising media, blinds, draperies, window treatments, bars or
security installations to the Premises or the Building without Landlord's prior
written approval. Tenant shall repair, paint, and/or replace any portion of the
Premises or the Building damaged or altered as a result of its signage, upon the
earlier of vacation of the Premises by Tenant or the removal or alteration of
its signage, all of which shall be accomplished at Tenant's sole cost and
expense. Tenant shall not, (i) make any changes to the exterior of the Premises
or the Building, (ii) install any exterior lights, decorations, balloons, flags,
pennants, banners or painting, or (iii) erect or install any signs, windows or
door lettering, decals, window and storefront stickers, placards, decorations or
advertising media of any type that can be viewed from the exterior of the
Premises, without Landlord's prior written consent.
8. UTILITIES. Tenant shall obtain and pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler charges and other utilities and services used
on or at the Premises, together with any taxes, penalties, surcharges or the
like pertaining to the Tenant's use of the Premises, and any maintenance charges
for utilities. Landlord shall have the right to cause any of said services to be
separately metered to Tenant, at Tenant's expense. If any such services are not
separately metered to Tenant, Tenant shall pay on demand to Landlord a
reasonable proportion, to be determined by Landlord, of all charges jointly
metered with other premises in the Building. Landlord shall not be liable for
any interruption or failure of utility service on the Premises.
9. INSURANCE.
A. Landlord shall maintain insurance covering the Building and the Premises
in an amount not less than eighty percent (80%) of the "replacement cost"
thereof insuring against the perils and costs of Fire, Lightning, Extended
Coverage, Vandalism and Malicious Mischief, Liability and Rental Interruption
and such other insurance as Landlord shall deem necessary.
B. Tenant, at its own expense, shall maintain during the term of this Lease
(1) a policy or policies of worker's compensation and comprehensive general
liability insurance (with contractual liability endorsement), including personal
injury and property damage in the amount of Five Hundred Thousand Dollars
($500,000.00) per occurrence for property damage and One Million Dollars
($1,000,000.00) per occurrence for personal injuries or deaths of persons
occurring in or about the Premises and (2) fire and extended coverage insurance
covering the replacement cost of (a) all alterations, additions, partitions and
improvements installed or placed on the Premises, (b) all of Tenant's personal
property contained within the Premises, and (c) business interruption insurance
insuring loss of profits in the event of an insured peril damaging the Premises,
and if requested in writing by Landlord based upon its reasonable assessment of
the risk of liability arising out of Tenant's activities or proposed activities
on or about the Premises. Said policies shall (i) name Landlord, as well as such
entities or firms as Landlord may engage from, time to time as property managers
and/or asset or investment managers, as additional insured (until further
notice, it is expressly agreed that The Industrial Group, The Industrial Group
Management Services, Inc., AEW Advisors, Inc., CIIF Associates II Limited
Partnership, Copley Advisors, Inc. and Copley Real Estate
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Advisors, Inc. shall be named as additional insureds), (ii) be issued by an
insurance company which is acceptable to Landlord, (iii) provided that such
insurance shall not be canceled unless thirty (30) days prior written notice
shall have been given to Landlord, (iv) shall be delivered to Landlord by Tenant
prior to the Commencement Date and at least fifteen (15) days prior to each
renewal of said insurance, and (v) shall provide primary coverage to Landlord
when any policy issued to Landlord is similar or duplicate in coverage, in which
case Landlord's policy shall be excess over Tenant's policies.
C. Tenant will not permit the Premises to be used for any purpose or in any
manner that would (1) void the insurance thereon, (2) increase the insurance
risk, or (3) cause the disallowance of any sprinkler credits. Tenant shall pay
to Landlord on demand any increase in the cost of any insurance on the Premises
or the Building incurred by Landlord, which is caused by Tenant's use of the
premises or because Tenant vacates the Premises.
10. FIRE AND CASUALTY DAMAGE.
A. Tenant immediately shall give written notice to Landlord if the Premises
or the Building are damaged or destroyed. If the Premises or the Building should
be totally destroyed by an insured peril, or so damaged by an insured peril
that, in Landlord's estimation, rebuilding or repairs cannot be completed within
one hundred eighty (180) days after the date of Landlord's actual knowledge of
such damage, then in either case this Lease shall terminate and the rent shall
be abated during the unexpired portion of this Lease, effective upon the date of
the occurrence of such damage.
B. If the Building or the Premises should be damaged but not totally
destroyed by any insured peril, and in Landlord's estimation, rebuilding or
repairs can be substantially completed within one hundred eighty (180) days
after the date of Landlord's actual knowledge of such damage, this Lease shall
not terminate, and Landlord shall restore the Premises to substantially its
previous condition, except that Landlord shall not be required to rebuild,
repair or replace any part of the partitions, fixtures, additions and other
improvements or personal property required to be covered by Tenant's insurance
pursuant to Paragraph 9.B. above. Effective upon the date of the occurrence of
such damage and ending upon the date of substantial completion (as defined in
Paragraph 1.C. above) of Landlord's repair or restoration work, if the Premises
are untenantable in whole or part during such period, then the rent shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances. If such repairs and rebuilding have not been substantially
completed within one hundred eighty (180) days after the date of such damage,
Tenant, as Tenant's exclusive remedy, may terminate this Lease by delivering
written notice of termination to Landlord, in which event the rights and
obligations hereunder shall cease and terminate, provided, however, that any
liabilities of Tenant which accrued prior to termination of this Lease shall
survive such termination.
C. In connection with any repair or reconstruction to the Premises arising
from or necessitated by fire or the casualty which is covered by the insurance
provided pursuant to Paragraph 9.A. above, Tenant shall pay Landlord upon demand
its Proportionate Share of the amount of any deductible of such insurance.
D. Notwithstanding anything herein to the contrary, in the event the
Premises are destroyed or substantially damaged by any peril not covered by the
insurance required to be carried by Landlord pursuant to Paragraph 9.A. above,
or if the holder of any indebtedness secured by a mortgage or deed of trust
covering the Premises requires that insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made known by any such holder, whereupon all rights
and obligations hereunder shall cease and terminate, provided, however, that any
liabilities of Tenant which accrued prior to termination of this Lease shall
survive such termination.
E. ANYTHING IN THIS LEASE TO THE CONTRARY NOTWITHSTANDING, TO THE EXTENT OF
A RECOVERY OF LOSS PROCEEDS UNDER THE POLICIES OF INSURANCE DESCRIBED IN THIS
LEASE, LANDLORD AND TENANT HEREBY WAIVE AND RELEASE EACH OTHER AND ANY OF THEIR
RESPECTIVE RELATED PARTIES AND AFFILIATES OF AND FROM ANY AND ALL RIGHTS OF
RECOVERY, CLAIM, ACTION OR CAUSE OF ACTION, AGAINST EACH OTHER, THEIR AGENTS,
OFFICERS AND EMPLOYEES, FOR ANY LOSS OR DAMAGE THAT MAY OCCUR TO THE PREMISES,
THE BUILDING, OR PERSONAL PROPERTY WITHIN THE BUILDING AND/OR PREMISES ARISING
FROM OR CAUSED BY FIRE OR OTHER CASUALTY OR HAZARD COVERED OR REQUIRED TO BE
COVERED BY HAZARD INSURANCE UNDER THIS LEASE. UPON EXECUTION OF THIS LEASE,
LANDLORD AND TENANT SHALL NOTIFY THEIR RESPECTIVE INSURANCE COMPANIES OF THE
MUTUAL WAIVERS CONTAINED HEREIN AND, IF AVAILABLE, SHALL CAUSE EACH POLICY
DESCRIBED IN THIS LEASE TO BE SO ENDORSED.
11. LIABILITY AND INDEMNIFICATION.
A. TENANT AGREES THAT IT WILL INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS
LANDLORD, ITS SUCCESSORS, ASSIGNS, AGENTS, EMPLOYEES, CONTRACTORS, PARTNERS,
DIRECTORS, OFFICERS AND AFFILIATES (AS THAT TERM IS DEFINED IN THE SECURITIES
ACT OF 1933) (COLLECTIVELY, THE "INDEMNIFIED PARTIES") FROM AND AGAINST ALL
FINES, SUITS, LOSSES, COSTS, LIABILITIES, CLAIMS, DEMANDS, ACTIONS AND JUDGMENTS
OF EVERY KIND OR CHARACTER (A) ARISING FROM ANY BREACH, VIOLATION OR
NON-PERFORMANCE OF ANY TERM, PROVISION, COVENANT, AGREEMENT OR CONDITION ON THE
PART OF TENANT HEREUNDER, (B) RECOVERED FROM OR ASSERTED AGAINST ANY OF THE
INDEMNIFIED PARTIES ON ACCOUNT OF INJURY OR DAMAGE TO PERSON OR PROPERTY TO THE
EXTENT THAT ANY SUCH DAMAGE OR INJURY MAY BE INCIDENT TO, ARISE OUT OF, OR BE
CAUSED, EITHER APPROXIMATELY OR REMOTELY, WHOLLY OR IN PART, BY ANY ACT,
OMISSION, NEGLIGENCE OR MISCONDUCT ON THE PART OF TENANT OR ANY OF ITS AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS, OR INVITEES OR OF ANY OTHER PERSON ENTERING
UPON THE PREMISES UNDER OR WITH THE EXPRESS OR IMPLIED INVITATION OR PERMISSION
OF TENANT, (C) ARISING FROM OR RELATING TO ANY ORDER, DIRECTIVE, REQUEST,
REQUIREMENT OR OTHER COMMUNICATION ISSUED BY A REGULATORY AGENCY WITH
JURISDICTION PERTAINING TO THE INVESTIGATION OR REMEDIATION OF HAZARDOUS
SUBSTANCES PRESENT OR SUSPECTED TO BE PRESENT IN THE SOIL OR GROUNDWATER ON,
UNDER, OR ABOUT THE BUILDING OR THE PREMISES CAUSED BY OR RELATING TO TENANT'S
USE, MANAGEMENT, STORAGE, GENERATION, TRANSPORTATION, DISPOSAL OR RELEASE OF
HAZARDOUS SUBSTANCES THEREUPON OR THEREUNDER (D) ARISING FROM OR OUT OF THE
OCCUPANCY OR USE BY TENANT, ITS AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, OR
INVITEES
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OF THE PREMISES OR ARISING FROM OR OUT OF ANY EVENT, CIRCUMSTANCE, OR OCCURRENCE
WITHIN THE PREMISES, HOWSOEVER CAUSED, AND/OR (E) SUFFERED BY, RECOVERED FROM OR
ASSERTED AGAINST ANY OF THE INDEMNIFIED PARTIES BY TENANT'S EMPLOYEES, AGENTS,
SERVANTS, CONTRACTORS, OR INVITEES. SUCH INDEMNIFICATION OF THE INDEMNIFIED
PARTIES BY TENANT SHALL BE EFFECTIVE (i) UNLESS SUCH DAMAGE TO PROPERTY RESULTS
WHOLLY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ANY OF ITS
DULY AUTHORIZED AGENTS OR EMPLOYEES, OR (ii) UNLESS SUCH INJURY TO PERSON
RESULTS WHOLLY FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ANY OF
ITS DULY AUTHORIZED AGENTS OR EMPLOYEES. TENANT'S OBLIGATION TO INDEMNIFY
LANDLORD, ITS AGENTS AND EMPLOYEES UNDER THIS PARAGRAPH SHALL BE REDUCED BY THE
PERCENTAGE AMOUNT ATTRIBUTABLE TO THE NEGLIGENCE OF LANDLORD, ITS AGENTS OR
EMPLOYEES.
B. Tenant covenants and agrees that in case any of the Indemnified Parties
shall be made a party to any litigation commenced by or against Tenant with
respect to which Tenant has agreed to indemnify the Indemnified Parties
hereunder or relating to this Lease or to the Premises, then Tenant shall and
will pay all costs and expenses, including reasonable attorneys' fees and court
costs, incurred by or imposed upon any of the Indemnified Parties by virtue of
any such litigation and the amount of all such costs and expenses, including
attorneys' fees and court costs, shall be a demand obligation owing by Tenant to
the Indemnified Parties.
C. The provisions of this Paragraph shall survive the expiration or
termination of this Lease with respect to any claims or liability occurring
prior to or stemming from events or conditions occurring or existing prior to
such expiration or termination. The indemnification provided by this Paragraph
11. is subject to Landlord's waiver of recovery in the preceding Paragraph 10.,
to the extent of Landlord's recovery of loss proceeds under policies of
insurance described in Paragraph 10.
12. USE.
A. The Premises shall be used only for the purpose of receiving, storing,
shipping and selling (other than retail) products, materials and merchandise
made and/or distributed by Tenant and for such other lawful purposes as may be
incidental thereto. Tenant shall not use the Premises for the receipt, storage
or handling of any Hazardous Substance, unless such use is approved in writing
by Landlord and is in conformance in all respects with paragraph 24 of this
Lease. Outside storage, including without limitation, storage of trucks and
other vehicles, is prohibited without Landlord's prior written consent. Tenant
shall comply with all federal, state, and local governmental laws, ordinances
and regulations applicable to the use of the Premises including, without limit,
all licensing and permitting requirements and Environmental Laws, and promptly
shall comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances and Environmental Conditions in or upon,
or connected with, the Premises, all at Tenant's sole expense. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, light, noise or
vibrations to emanate from the Premises, nor take any other action that would
constitute a nuisance or create an Environmental Condition, or would disturb,
unreasonably interfere with, or endanger Landlord or any other Tenants of the
Building.
B. Tenant and its employees, customers and licensees shall have the
non-exclusive right to use, in common with others, any parking areas associated
with the Premises which Landlord has designated for such use, subject to (1) all
reasonable rules and regulations promulgated by Landlord and (2) rights of
ingress and egress of other Tenants and their employees, customers, agents and
invitees. Landlord shall not be responsible for enforcing Tenant's parking
rights against any third parties.
13. INSPECTION. Landlord and Landlord's agents and representatives shall
have the right to enter the Premises at any reasonable time during business
hours after prior notice to Tenant to inspect the Premises and to make such
repairs as may be required or permitted pursuant to this Lease. During the
period that is twelve (12) months prior to the end of the Lease term, Landlord
and Landlord's representatives may enter the Premises during business hours for
the purpose of showing the Premises. In addition, during the same twelve (12)
month period Landlord shall have the right to erect a suitable sign on the
Premises indicating that the Premises are available. Tenant shall notify
Landlord in writing at least thirty (30) days prior to vacating the Premises and
shall arrange to meet with Landlord for a joint inspection, then Landlord's
inspection of the Premises shall be deemed correct for the purposes of
determining Tenant's responsibility for repairs and restoration of the Premises.
14. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right to sublet all or part of the Premises or
to assign, transfer or encumber this Lease, or any interest therein, without the
prior written consent of Landlord. Any attempted assignment, subletting,
transfer or encumbrance by Tenant in violation of the terms and covenants of
this Paragraph shall be void. No assignment, subletting or other transfer,
whether consented to by Landlord or not, or permitted hereunder, shall relieve
Tenant of its liability hereunder. If an event of default occurs while the
Premises or any part thereof are assigned or sublet, then Landlord, in addition
to any other remedies herein provided, or provided by law, may collect directly
from such assignee, subtenant or transferee all rents payable to the Tenant and
apply such rent against any sums due Landlord hereunder. No such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations hereunder.
B. If Tenant is a corporation, partnership, or other entity, for purposes
of subparagraph A. above, any transfer or series of related transfers of equity
ownership interests in Tenant (or any direct or indirect owners of Tenant) that
results in the change of the ultimate ownership of more than fifty percent (50%)
of the equity ownership of Tenant shall constitute an assignment of this Lease.
The foregoing provision shall not apply, however, if at the time of execution of
this Lease Tenant is a corporation the shares of which are listed on a
recognized security exchange or in the over-the-counter market.
C. Upon the occurrence of an assignment or subletting, whether consented to
by Landlord, or mandated by judicial intervention, Tenant hereby assigns,
transfers and conveys all rents or other sums received by Tenant under any such
assignment or sublease, which are in excess of the rents and other sums payable
by Tenant under this Lease, and Tenant agrees to pay to Landlord such amounts
within ten (10) days after receipt.
D. If this Lease is assigned to any person or entity pursuant to the
provision of the Bankruptcy Code, 11 USC Section 101 et. seq. (the "Bankruptcy
Code"), any and all monies or other consideration payable or otherwise to be
delivered in connection with such
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assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and be promptly paid or delivered to Landlord.
E. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall upon demand execute and deliver
to Landlord an instrument confirming such assumption.
F. Notwithstanding anything to the contrary contained in Paragraph 14 of
this Lease, if the proposed subtenant and assignee is any corporation which
controls, is controlled by or is under common control with Tenant, or is any
corporation resulting from the merger of consolidation of Tenant, or is any
person or entity which acquires all of the assets of Tenant as a going concern
of the business that is being conducted on the Premises (an "Affiliate"), then
Tenant may assign or sublet the Premises or any portion thereof to an Affiliate
with the prior written consent of Landlord which shall not be unreasonably
withheld and subject to Landlord's ability to reasonably inquire into (1) the
financial soundness of the proposed subtenant or assignee and (2) whether the
assignment will constitute a violation of the Employee Retirement Income
Security Act of 1974, as amended (ERISA). At least thirty (30) days prior to any
proposed subtenancy or assignment of the Lease Agreement, Tenant agrees to
furnish Landlord in writing with the name of the proposed subtenant or assignee,
provided that said sublessee or assignee assumes in full the obligations of
Tenant under this Lease and that, in the reasonable opinion of Landlord, such
sublessee's or assignee's use of the Premises is consistent with the use allowed
under the Lease, and not environmentally harmful as agreed to in Paragraph 24 of
the Lease. Any such sublease or assignment shall not in any way affect or limit
the liability of Tenant under the terms of this Lease. "Control" shall be deemed
to mean ownership of not less than a majority of all of the voting stock of
Tenant or such corporation, as the case may be.
15. CONDEMNATION. If more than fifty percent (50%) of the Premises are
taken for any public or quasipublic use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking prevents or materially interferes with the use of the
remainder of the Premises for the purpose for which they were leased to Tenant,
this Lease shall terminate and the rent shall be abated during the unexpired
portion of this Lease, effective on the date of such taking. If (i) less than
fifty percent (50%) of the Premises are taken for any a public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof; or (ii) more than fifty percent
(50%) of the Premises are taken for any public or quasipublic use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, but the taking does not prevent or materially
interfere with the use of the remainder of the Premises for the purpose for
which they were leased to Tenant, this Lease shall not terminate, but the rent
payable hereunder during the unexpired portion of this Lease shall be reduced to
such extent as may be fair and reasonable under all of the circumstances. All
compensation awarded in connection with or as a result of any of the foregoing
proceedings shall be the property of Landlord and Tenant hereby assigns any
interest in any such award to Landlord; provided, however, Landlord shall have
no interest in any award made to Tenant for loss of business or goodwill or for
the taking of Tenant's fixtures and improvements, if a separate award for such
items is made to Tenant.
16. SURRENDER OF PREMISES; HOLDING OVER
A. At the termination of this Lease, whether caused by lapse of time or
otherwise, Tenant shall at once surrender possession of the Premises and deliver
them to Landlord in as good repair and condition as existed at the Commencement
Date, reasonable wear and tear excepted, and shall deliver to Landlord all keys
(or other access control devices) the Premises, and, if such possession is not
immediately surrendered, Landlord may forthwith enter upon and take possession
of the Premises and expel or remove Tenant and any other person who may be
occupying them, or any part thereof, without having any civil or criminal
liability therefor.
B. All alterations, additions or improvements (whether temporary or
permanent in character) made to or fixtures installed in or upon the Premises,
either by Landlord or Tenant, shall be Landlord's property on termination of
this Lease and shall remain on the Premises. Notwithstanding the foregoing, upon
the termination of this Lease Landlord may direct Tenant, at Tenant's expense,
to remove all alterations, improvements, and additions installed by Tenant and
return the Premises to the condition that existed at the Commencement Date.
Subject to Paragraph 25 hereof and provided that all sums owed by Tenant
hereunder have been paid, all movable office furniture and equipment not
attached to the Building may be removed by Tenant at the termination of this
Lease. All such removals shall be accomplished in a good workmanlike manner so
as not to damage the Premises or the structural components of the Building or
the plumbing, electrical lines or other utilities, and any damage resulting from
such removals shall be repaired at Tenant's expense.
C. All alterations, additions, and improvements directed by Landlord to be
removed and all movable office furniture and equipment not attached to the
Building not promptly removed after such termination shall thereupon be
conclusively presumed to have been abandoned by Tenant, and Landlord may, at its
option, take over possession of such property and either (a) declare same to be
the property of Landlord by written notice thereof to Tenant or (b) at the sole
costs and expense of Tenant remove and store the same or any part thereof in any
manner that Landlord shall choose without incurring liability to Tenant or any
other person (any such removal and storage costs and expenses being payable by
Tenant upon demand).
D. Should Tenant continue to hold the Premises after the termination of
this Lease, whether the termination occurs by lapse of time or otherwise, such
holding over shall, unless otherwise agreed by Landlord in writing, constitute
and be construed as a tenancy at will at a daily rental equal to one-thirtieth
of an amount equal to one hundred fifty percent (150%) of the amount of the
monthly rental payable during the last month prior to the termination of this
Lease, and upon and subject to all of the other terms, provisions, covenants and
agreements set forth herein except any right to renew this Lease. No payments of
money by Tenant to Landlord after the termination of this Lease shall reinstate,
continue or extend the term of this Lease and no extension of this Lease after
the termination hereof shall be valid unless and until the same shall be reduced
to writing and signed by both Landlord and Tenant. Tenant shall be liable to
Landlord for all damage which Landlord shall suffer by reason of any holding
over by Tenant and Tenant shall indemnify Landlord against all claims made by
any other tenant or prospective tenant against Landlord resulting from delay by
Landlord in delivering possession of the Premises to such other tenant or
prospective tenant.
17. QUIET ENJOYMENT. Landlord covenants that on or before the Commencement
Date it will have good title to the Premises, free and clear of all liens and
encumbrances, excepting only the lien for current taxes not yet due, such
mortgage or mortgages as are permitted by the terms of this Lease, zoning
ordinances and other building anti fire ordinances and governmental regulations
relating
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to the use of such property, and easements, restrictions and other conditions of
record. Landlord represents that it has the authority to enter into this Lease
and that so long as Tenant pays all amounts due hereunder and performs all other
covenants and agreements herein set forth, Tenant shall peaceably and quietly
have, hold and enjoy the Premises for the term hereof without hindrance or
molestation from Landlord, subject to the terms and provisions of this Lease.
18. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an "event of default" on the part of Tenant under this
Lease;
A. Tenant shall fail to pay any rental or other payment or reimbursement
payable by Tenant hereunder when due, or Tenant shall fail to pay any payment or
reimbursement required under any other lease with Landlord when due, and in
either case such failure shall continue for a period of five (5) days from the
date such payment was due, provided however, that Landlord shall give five (5)
days written notice of such default to Tenant, with opportunity to cure within
such five (5) day period provided Landlord shall not be obligated to furnish
Tenant with more than one (1) written notice of default and opportunity to cure
each calendar year during the term of this Lease.
B. Tenant shall fail to pay any amounts owed to contractors or
subcontractors for work or services performed in connection with the operation,
construction, management or maintenance of the Building as provided herein, and
such failure shall continue for a period of five (5) days after written notice
of such failure from Landlord to Tenant.
C. Tenant or any guarantor of the Tenant's obligations hereunder shall (i)
become insolvent; (ii) admit in writing its inability to pay its debts; (iii)
make a general assignment for the benefit of creditors; (iv) commence any
case, proceeding or other action seeking to have an order for relief entered on
its behalf as a debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganizations, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors or seeking appointment of a receive,
trustee, custodian or other similar official for it or for all or any
substantial part of its property; or (v) take any action to authorize or in
contemplation of any of the actions set forth above in this subparagraph C.
D. Any case, proceeding or other action against the Tenant or any guarantor
of Tenant's obligations hereunder shall be commenced seeking (i) to have an
order for relief entered against it as debtor or to adjudicate it a bankrupt or
insolvent; (ii) reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors (iii) appointment of
a receiver, trustee, custodian or other similar official for it or for all or
any substantial part of its property, and such case, proceeding or other action
(a) results in the entry of an order for relief against it which it is not fully
stayed within seven (7) business days after the entry thereof or (b) shall
remain undismissed for a period of forty-five (45) days.
E. Tenant shall (i) vacate all or a substantial portion of the Premises or
(ii) fail to continuously operate its business at the Premises for the permitted
use set forth herein, whether or not Tenant is in default of the rental payments
due under this Lease. Tenant's vacating of the Premises shall not constitute an
Event of Default if, prior to vacating the Premises, Tenant has made
arrangements reasonably acceptable to Landlord to (i) insure that Tenant's
insurance for the Premises will not be voided or cancelled with respect to the
Premises as a result of such vacancy, (ii) insure that the Premises are secured
and not subject to vandalism, (iii) insure that the Premises will be properly
maintained after such vacation, and (iv) Tenant continues to pay all rent and
other sums due under this lease to Landlord. Tenant shall inspect the Premises
at least once each month and report monthly in writing to Landlord on the
condition of the Premises.
F. Tenant shall fail to discharge or bond around any lien placed upon the
Premises in violation of Paragraph 21. hereof within twenty (20) days after any
such lien or encumbrance is filed against the Premises.
G. Tenant shall fail to comply with any term, provision or covenant of this
Lease (other than those listed in this Paragraph 18.), and shall not cure such
failure within twenty (20) days after written notice thereof to Tenant.
19. REMEDIES.
A. Upon each occurrence of an event of default, and in addition to and not
in limitation of any other remedy permitted by law or equity or by this Lease,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand:
(1) Terminate this Lease, and/or
(2) Enter upon and take possession of the Premises without terminating
this Lease; and/or
(3) Alter all locks and other security devices at the Premises with or
without terminating this Lease, deny access to Tenant, and pursue, at Landlord's
option, one or more remedies pursuant to this Lease, Tenant hereby specifically
waiving any state or federal law to the contrary. This provision shall control
over any conflicting provisions of the Texas Property Code or any successor
statute governing the right of landlords to change the door locks of commercial
tenants to the extent permitted by applicable law.
B. Upon the occurrence of any event of default Tenant immediately shall
surrender the Premises to Landlord, and if Tenant fails so to do, Landlord,
without waiving any other remedy it may have, may enter upon and take possession
of the Premises and expel or remove Tenant and any other person who may be
occupying such Premises or any part thereof, without being liable for
prosecution or any claim of damages therefor.
C. If Landlord repossesses the Premises with or without terminating the
Lease, Tenant, at Landlord's option, shall be liable for and shall pay Landlord
on demand all rental and other payments owed to Landlord hereunder accrued to
the date of such repossession, plus all amounts required to be paid by Tenant to
Landlord until the date of expiration of the term as stated in Paragraph 1.
Actions to collect amounts due by Tenant to Landlord under this subparagraph may
be brought from time to time, on one or more
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occasions, without the necessity of Landlord's waiting until expiration of the
Lease term. Landlord may relet the whole or any portion of the Premises for any
period, to any tenant and for any use and purpose.
D. Upon an event of default, in addition to any sum provided to be paid
herein, Tenant also shall be liable for and shall pay to Landlord (1) any
brokerage fees incurred by Landlord in connection with the execution of this
Lease; (2) brokers' fees incurred by Landlord in connection with any reletting
of the whole or any part of the Premises; (3) the costs of removing and storing
Tenant's or other occupant's property; (4) the costs of repairing, altering,
remodeling or otherwise putting the Premises into condition acceptable to a new
tenant or tenants; and (5) all reasonable expenses incurred by Landlord in
enforcing or defending Landlord's rights and/or remedies. If either party hereto
institutes any action or proceeding to enforce any provision hereof by reason of
any alleged breach of any provision of this Lease, the prevailing party shall be
entitled to receive from the losing party all reasonable attorneys' fees and all
court costs in connection with such proceeding.
E. Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available, including without limitation, the institution by Landlord,
its agents or attorneys of a forcible detainer or ejectment action to re-enter
the Premises shall not be construed to be an election to terminate this Lease or
relieve Tenant of its obligation to pay rent hereunder and shall not be deemed
to be an acceptance of surrender of the Premises by Landlord, 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. Tenant and
Landlord further agree that forbearance by Landlord to enforce its rights
pursuant to the Lease at law or in equity shall not be a waiver of Landlord's
right to enforce one or more of its rights in connection with any subsequent
default.
F. In the event Tenant fails to make any payment due hereunder, taking into
account the notice provisions of Paragraph 18 herein, when payment is due, to
help defray the additional cost to Landlord for processing such late payments,
Tenant shall pay to Landlord on demand a late charge in an amount equal to five
percent (5%) of such installment; and the failure to pay such amount within ten
(10) days after demand therefore shall be an additional event of default
hereunder. The provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
G. If Landlord repossesses the Premises pursuant to the authority herein
granted, then Landlord shall have the right to (i) keep in place and use or (ii)
remove and store, at Tenant's expense, all of the furniture, fixtures and
equipment at the Premises, including that which is owned by or leased to Tenant
at all times prior to any foreclosure thereon by Landlord or repossession
thereof by any Landlord thereof or third party having a lien thereon. Landlord
also shall have the right to relinquish possession of all or any portion of such
furniture, fixtures, equipment and other property to any person ("Claimant") who
presents to Landlord a copy of any instrument represented by Claimant to have
been executed by Tenant (or any predecessor of Tenant) granting Claimant the
right under various circumstances to take possession of such furniture,
fixtures, equipment or other property, without the necessity on the part of
Landlord to inquire into the authenticity or legality of said instrument.
Landlord may at its sole option and without prejudice to, or waiver of any
rights it may have i) escort Tenant to the Premises to retrieve any personal
belongings of Tenant and/or its employees not covered by the Landlord's lien and
security interest described in Paragraph 25. hereof, or ii) obtain a list from
Tenant of the personal property of Tenant and/or its employees that is not
covered by the Landlord's lien and security interest described in Paragraph 25.
hereof, and make such property available to Tenant and or Tenant's employees;
provided, however, Tenant first shall pay in cash all costs and estimated
expenses to be incurred in connection with the removal of such property and
making it available. Any such property not removed by Tenant within five (5)
days after demand therefor by Landlord shall thereupon be conclusively presumed
to have been abandoned by Tenant to Landlord, and Landlord may, at its option,
take over possession of such property and declare same to be the property of
Landlord by written notice thereof to Tenant. The rights of Landlord herein
stated shall be in addition to any and all other rights that Landlord has or may
hereafter have at law or in equity, and Tenant stipulates and agrees that the
rights herein granted Landlord are commercially reasonable.
H. If Landlord fails to commence to perform any of its obligations
hereunder within thirty (30) days after written notice from Tenant specifying
such failure, Tenant's exclusive remedy shall be an action for damages or any
other legal remedy available at law. Unless and until Landlord fails to so cure
said default after such notice, Tenant shall not have any remedy or cause of
action by reason thereof. All obligations of Landlord hereunder will be binding
upon Landlord only during the period of its possession of the Premises and not
thereafter. The term "Landlord" shall mean only the owner, for the time being,
of the Premises and not thereafter. The term "Landlord" shall mean only the
owner, for the time being, of the Premises, and in the event of the transfer by
such owner of its interest in the Premises, 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 Lease term upon each new owner for the duration of such owner's ownership.
Notwithstanding any other provision hereof, Landlord shall not have any personal
liability hereunder. In the event of any breach or default by Landlord in any
term or provision of this Lease, and, as a consequence, if Tenant shall recover
a money judgment against Landlord, such judgment shall be satisfied only out of
the proceeds received at a judicial sale upon execution and levy against the
right, title and interest of Landlord in the Building, and neither Landlord nor
Landlord's owners, partners or venturers shall have any personal, partnership,
corporate or other liability hereunder.
20. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a lien
or charge upon the Premises, the improvements situated thereon, the Building or
the Land, and to any and all increases, renewals, modifications, consolidations,
replacements and extensions of such mortgages and deeds of trust; provided,
however, that if the mortgagee, trustee, or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this Lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this Lease shall be deemed superior to such lien whether this Lease was executed
before or after said mortgage or deed of trust. The provisions of this Paragraph
20. shall be self-operative, and no further instrument shall be required to
effect such subordination of this Lease. Tenant shall however, at any time
hereafter, within ten (10) days after demand, execute any instruments, releases
or other documents that may be required by any mortgagee for the purpose of
subjecting and subordinating this Lease to the lien of any such mortgage. If
Tenant fails to execute the same within such ten (10) day period, Landlord is
hereby authorized to execute the same as attorney-in-fact for Tenant. Tenant
agrees to attorn upon demand to any mortgagee, trustee under a deed of trust or
purchaser at a foreclosure sale or trustee's sale as Landlord under this Lease.
The agreement of Tenant to attorn upon demand contained in the immediately
preceding sentence shall survive any such foreclosure sale or trustee's sale.
Tenant shall upon demand at any time or times, before or after any such
foreclosure sale or trustee's sale, execute, acknowledge and deliver to any
mortgagee, trustee under a deed of trust or purchaser at a foreclosure sale or
Landlord
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trustee's sale any and all instruments and certificates that in the judgment of
such party may be necessary or proper to confirm or evidence such attornment,
and Tenant hereby irrevocably appoints any such mortgagee, trustee under a deed
of trust or purchaser at a foreclosure sale or trustee's sale as Tenant's agent
and attorney-in-fact for the purpose of executing, acknowledging and delivering
any such instruments and certificates. Landlord shall use reasonable efforts
upon request of Tenant to obtain a non-disturbance agreement from Landlord's
lender on Landlord's lender's standard form.
21. MECHANIC'S LIENS. Tenant has no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind the interest of Landlord or Tenant in the Premises or
to charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform labor
for any construction or repairs. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises and that it will save and hold Landlord harmless from any and all loss,
cost or expense based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of the Landlord in the
Premises or under the terms of this Lease. Tenant agrees to give Landlord
immediate written notice of the placing of any lien or encumbrance against the
Premises.
22. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and works in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
B. In the event the Premises constitute a portion of a multiple occupancy
building, Tenant's "Proportionate Share," as used in this Lease, shall mean a
fraction, the numerator of which is the space contained in the Premises and the
denominator of which is the entire rentable space contained in the Building.
C. The terms, provisions and covenants and conditions contained in this
Lease shall run with the land and shall apply to, inure to the benefit of, and
be binding upon, the parties hereto and upon their respective heirs, executors,
personal representatives, legal representatives, successors and assigns, except
as otherwise herein expressly provided. Landlord shall have the right to
transfer and assign, in whole or in part, its rights and obligations in the
Building and property that are the subject of this Lease. Each party agrees to
furnish to the other, promptly upon demand, a corporate resolution, proof of due
authorization by partners, or other appropriate documentation evidencing the due
authorization of such party to enter into this Lease.
D. Landlord shall not be held responsible for delays in the performance of
its obligations hereunder when caused by strikes, riots, acts of God, shortages
of labor or materials, war, governmental laws, regulations or restrictions or
any other cause of any kind whatsoever which are beyond the control of Landlord.
E. Tenant agrees, from time to time, within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, a Certificate of
Occupancy for the Premises, financial statements for itself and any guarantor of
its obligations hereunder, and an estoppel certificate stating that this Lease
is in full force and effect, the date to which rent has been paid, the unexpired
term of this lease and such other factual matters pertaining to this Lease as
may be requested by Landlord. It is understood and agreed that Tenant's
obligation to furnish the above-described items in a timely fashion is a
material inducement for Landlord's execution of this Lease. If Tenant fails to
execute any such estoppel certificate within such ten (10) day period, Landlord
is hereby authorized to execute the same as attorney-in-fact for Tenant.
F. This Lease constitutes the entire understanding and agreement of the
Landlord and Tenant with respect to the subject matter of this Lease, and
contains all of the covenants and agreement of Landlord and Tenant with respect
thereto. Landlord and Tenant each acknowledge that no representations,
inducements, promises or agreements, oral or written, have been made by Landlord
or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not
contained herein, and any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no force or effect.
This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
G. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation, all payment obligations with respect to taxes and insurance and all
obligations concerning the condition and repair of the Premises. Upon the
expiration or earlier termination of the term hereof, and prior to Tenant
vacating the Premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the Premises, including without
limitation, all heating and air conditioning systems and equipment therein, in
good condition and repair, reasonable wear and tear excluded. Tenant shall also,
prior to vacating the Premises, pay to Landlord the amount, as estimated by
Landlord, of Tenant's obligation hereunder for real estate taxes and insurance
premiums for the year in which the Lease expires or terminates. All such amounts
shall be used and held by Landlord for payment of such obligations of Tenant
hereunder, with Tenant being liable for any additional costs therefor upon
demand by Landlord, or with any excess to be returned to Tenant after all such
obligations have been determined and satisfied as the case may be. Any security
deposit held by Landlord shall be credited against the amount due by Tenant
under this Paragraph 22.G.
H. Intentionally Deleted.
I. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as a
part of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
J. All references in this Lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this Lease.
---------------
Landlord
/s/ [ILLEGIBLE]
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Tenant
---------------
10
K. Tenant represents and warrants that it has dealt with no broker, agent
or other person in connection with this transaction or that no broker, agent or
other person brought about this transaction, other than as may be referenced in
a separate written agreement executed by Tenant, and delivered to Landlord prior
to execution of this Lease, and Tenant agrees to indemnify and hold Landlord
harmless from and against any claims by and other by any other broker, agent or
other persons claiming a commission or other form of compensation by virtue of
having dealt with Tenant with regard to this leasing transaction.
L. If and when included within the term "Landlord," as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Landlord. If and when included within the term "Tenant," as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant," respectively, shall be bound
by notices given in accordance with the provisions of Paragraph 23. hereof to
the same effect as if each had received such notice.
M. TENANT ACKNOWLEDGES THAT (1) IT HAS INSPECTED AND ACCEPTS THE PREMISES
IN AN "AS IS, WHERE IS" CONDITION, (2) THE BUILDING AND IMPROVEMENTS COMPRISING
THE SAME ARE SUITABLE FOR THE PURPOSE FOR WHICH THE PREMISES ARE LEASED AND
LANDLORD HAS MADE NO WARRANTY, REPRESENTATION, COVENANT, OR AGREEMENT WITH
RESPECT TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE
PREMISES, (3) THE PREMISES ARE IN GOOD AND SATISFACTORY CONDITION, (4) NO
REPRESENTATIONS AS TO THE REPAIR OF THE PREMISES, NOR PROMISES TO ALTER, REMODEL
OR IMPROVE THE PREMISES HAVE BEEN MADE BY LANDLORD (UNLESS AND EXCEPT AS MAY BE
SET FORTH IN EXHIBIT B ATTACHED TO THIS LEASE, IF ONE SHALL BE ATTACHED, OR AS
IS OTHERWISE EXPRESSLY SET FORTH IN THIS LEASE), AND (5) THERE ARE NO
REPRESENTATIONS OR WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, THAT EXTEND
BEYOND THE DESCRIPTION OF THE PREMISES.
N. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as rent, shall constitute rent.
O. This is a contract under which applicable law excuses Landlord from
accepting performance from (or rendering performance to) any person or entity
other than Tenant.
P. If there is more than one Tenant, then the obligations hereunder imposed
upon Tenant shall be joint and several. If there is a guarantor of Tenant's
obligations hereunder, then the obligations hereunder imposed upon Tenant shall
be the joint and several obligations of Tenant and such guarantor, and Landlord
need not first proceed against Tenant before proceeding against such guarantor
nor shall any such guarantor be released from its guaranty for any reason
whatsoever.
23. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or making of any payment by
Landlord to Tenant or with reference to the sending mailing or delivering of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address for Landlord set forth
below or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay rent
and any other amounts to Landlord under the terms of this Lease shall not be
deemed satisfied until such rent and other amounts have been actually received
by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address set forth below, or at such other address
within the continental United States as Tenant may specify from time to time by
written notice delivered in accordance herewith.
C. Any written notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered upon the earlier to occur of (1)
tender of delivery (in the case of a hand-delivered notice) or (2) deposit in
the United States Mail, postage prepaid, Certified or Registered Mail, addressed
to the parties hereto at the respective addresses set out below, or at such
other address as they have theretofore specified by written notice delivered in
accordance herewith.
24. HAZARDOUS SUBSTANCES.
A. The term "Hazardous Substances" shall mean any chemical, substance,
product, merchandise, material, controlled substance, object, condition, waste,
living organism or combination thereof that is or may be hazardous to human
health or safety or to the environment due to its radioactivity, ignitability,
corrosivity, reactivity, explosivity, toxicity, carcinogenicity, mutagenicity,
phytotoxicity, infectiousness or other harmful or potentially harmful properties
or effects, including, without limitation, petroleum and petroleum products,
asbestos, polychlorinated biphenyls (PCBs) and all of those chemicals,
substances, products, merchandise, materials, controlled substances, objects,
conditions, wastes, living organisms or combinations thereof that are now or
hereafter become listed, defined or regulated in any manner by any Environmental
Law. The term "Environmental Law" shall mean any applicable federal, state or
local law, rule, regulation, ordinance, court decision, decree, order,
directive, guideline, permit or permit condition relating to pollution or
protection of the environment or other health and safety concern and whether now
in existence or hereafter enacted. The term "Environmental Condition" shall mean
any condition, circumstance, situation, or obligation created by or related to
the violation or suspected violation of any Environmental Law or the presence or
suspected presence of Hazardous Substances on, about, or under the Building or
Premises.
B. Tenant hereby agrees that (i) no activity will be conducted on the
premises that will generate any Hazardous Substance, except for activities that
are part of the ordinary course of Tenant's business activities and specifically
described in Exhibit D (the "Permitted Activities"); provided said Permitted
Activities are conducted in strict compliance with all Environmental Laws and
have been approved in advance in writing by Landlord; (ii) the premises will not
be used in any manner for the storage of any Hazardous Substances
---------------
Landlord
/s/ [INITIALS]
---------------
Tenant
[INITIALS]
---------------
11
except for the temporary storage in strict compliance with all Environmental
Laws of such materials as are used in the ordinary course of Tenant's business
and described in and stored in the quantities described in Exhibit___ (the
"Permitted Materials"), provided such Permitted Materials are properly managed,
used, transported, disposed of, released, and stored in a manner and location
complying with all Environmental Laws and approved in advance in writing by
Landlord; (iii) no portion of the premises will be used as or for a landfill,
clump or any other on-site disposal of solid waste or Hazardous Substances; (iv)
Tenant will not install any underground tanks of any type on or under the
premises unless such installation is approved in writing in advance by Landlord
and Tenant enters into a written agreement with Landlord assuming all
responsibility and liability relating thereto; (v) Tenant will not allow any
surface or subsurface conditions to exist or come into existence that
constitute, or with the passage of time may constitute, a public or private
nuisance or a violation of Environmental Law; (vi) tenant will not permit any
Hazardous Substances to be brought onto the premises, except for the Permitted
Materials, and if so brought or found located thereon, the same shall be
immediately removed, with proper packaging, labeling, transportation, and
disposal, and all required cleanup and remediation procedures shall be
diligently undertaken, by Tenant and at Tenant's sole expense pursuant to all
Environmental Laws. If Tenant fails to comply with any of the covenants in this
provision, or fails to comply with any Environmental Law, Landlord, at Tenant's
sole expense, immediately may commence remedial action to restore the property
to an environmentally sound position. Tenant agrees to notify Landlord
immediately of (i) any significant release of Hazardous Substances, or other
chemicals or substances (including without limitation, any release required to
be reported to a governmental authority pursuant to any Environmental Law) and
(ii) the receipt of any pertinent notices or communications from any
governmental authority. Tenant agrees to provide Landlord with a letter of
certification, one year from the date of execution hereof and annually
thereafter, certifying that Tenant has complied with (i) the provisions of this
subparagraph, (ii) all applicable Environmental Laws and (iii) the requirements
of all applicable governmental agencies and further certifying that no soil or
groundwater contamination has occurred at, under, about or from the premises.
Landlord reserves the right, but not the obligation, and without in any way
limiting the obligations of the Tenant, to enter and inspect the premises and
conduct any testing, sampling, borings, and analyses as Landlord, in its sole
discretion and at Tenant's sole cost, may deem necessary or desirable. If such
inspection or testing discloses the presence of Hazardous Materials or other
environmental conditions on the premises in violation of this subparagraph,
Tenant shall reimburse Landlord for the cost of conducting the inspection and
testing. Tenant agrees to cooperate fully with Landlord during the course of
Landlord's inspection and testing activities. Tenant agrees to indemnify, defend
(by counsel acceptable to Landlord) and hold Landlord and its partners,
directors, officers, employees, shareholders, lenders, agents, contractors and
each of their respective successors and assigns harmless from and against any
and all claim demands, actions, liabilities, costs, expenses, damages, penalties
and obligations of any nature arising from or as a result, either direct or
indirect, of (x) the breach of any of the covenants contained in this
subparagraph, (y) the presence of Hazardous Substances on, under or about the
premises or other properties as the direct or indirect result of Tenant's
occupancy of the premises, or (z) the use of the premises or surrounding area by
Tenant, Tenant's agents, or Tenant's assigns. The foregoing indemnification
shall survive the termination or expiration of this Lease. Any costs or expenses
incurred by Landlord for which Tenant is responsible under this provision shall
be deemed Additional Rent that is due and payable on notice from Landlord to
Tenant.
Unless expressly identified on an addendum to this Lease, as of the
date hereof there are no "Permitted Activities" and/or "Permitted Materials" for
purposes of the foregoing provision and none shall exist unless and until
approved in writing by Landlord.
25. LANDLORD'S LIEN. To secure the payment of all rent and other sums
of money due or to become due hereunder from Tenant, Tenant hereby grants to
Landlord, in addition to any statutory lien for rent in Landlord's favor, a
continuing security interest in all goods, wares, equipment, fixtures,
furniture, inventory, and other personal property of Tenant now or hereafter
situated at 2301 Chovanetz Court, Irving, Texas, and all proceeds or product-
thereof, of whatever kind or type, including equipment, inventory, instruments,
accounts, chattel paper or general intangibles, and the security interest shall
continue in such property and all proceeds and products regardless of location.
Such property shall not be removed therefrom without the consent of Landlord,
unless at the time of removal all arrearages in rent as well as any and all
other sums of money then due to Landlord hereunder shall first have been paid
and discharged in full. Upon an event of default, in addition to all other
rights and remedies, Landlord shall have all rights and remedies under the
Uniform Commercial Code, including without limitation, the right to sell the
property described in this Paragraph at public or private sale upon five (5)
days notice by Landlord to Tenant at the Premises. Tenant hereby agrees to
execute such other instruments as may be necessary or desirable under applicable
law to perfect the security interest hereby created. Landlord and Tenant agree
that pages 11 & 12 of this Lease and security agreement may serve as a
financing statement and that a copy, photographic or other reproduction of this
portion of this Lease may be filed of record by Landlord and have the same force
and effect as the original. This Lease and security agreement and financing
statement also covers those fixtures located at the Premises described on
Exhibit "A-1", attached hereto and incorporated herein by reference, (if an
Exhibit A-1 is attached). This page, together with said Exhibit A, (if one is
attached) may be filed for record in the appropriate real estate records. The
record owner of this property is Landlord.
[Remainder of Page Intentionally Left Blank]
12
EXECUTED BY LANDLORD, this 19th day of June, 1998.
CIIF ASSOCIATES II LIMITED PARTNERSHIP
a Delaware limited partnership
BY: AEW ADVISORS, INC., a Massachusetts corporation
(formerly known as COPLEY ADVISORS, INC.),
Its: Managing General Partner
BY: /s/ MARK A. ALBERTSON
----------------------------------------
PRINTED NAME: Mark A. Albertson
----------------------------------------
TITLE: Vice President
----------------------------------------
BY:
----------------------------------------
PRINTED NAME:
----------------------------------------
TITLE:
----------------------------------------
ADDRESS: C/O THE INDUSTRIAL GROUP
P.0. Box 802047
DALLAS, TX 75380-2047
TELEPHONE: 972-661-0232
FAX: 972-661-0235
EXECUTED BY TENANT, this 12th day of June, 1998.
TENANT GLOBENET INTERNATIONAL I, INC.
A DELAWARE CORPORATION
BY: /s/ CLINTON H. HOWARD
----------------------------------------
PRINTED NAME: Clinton H. Howard
----------------------------------------
TITLE: President
----------------------------------------
BY:
----------------------------------------
PRINTED NAME:
----------------------------------------
TITLE:
----------------------------------------
ADDRESS:
----------------------------------------
----------------------------------------
----------------------------------------
TELEPHONE: (972) 401-0052
----------------------------------------
FAX: (972) 869-1974
----------------------------------------
13
ADDITIONAL PROVISIONS
GLOBENET INTERNATIONAL I, INC.
26. THIS RIDER CONTROLS. The provisions set forth in this Rider control
to the extent they conflict with any provision or provisions set forth in the
body of this Lease Agreement.
27. FREE RENT. Notwithstanding anything contained in this lease to the
contrary, Tenant's obligations to pay Taxes and the cost of any insurance
maintained by the Landlord on the Building shall not commence until the date
Base Rent commences after the free rent period as provided in Exhibit "C" (the
"Rent Commencement Date"), and all such costs shall be prorated between Landlord
and Tenant as of the Rent Commencement Date for the year in which this Lease
commences. If any event of default by Tenant occurs, then Tenant agrees that the
free rent shall be revoked and Tenant further agrees to immediately pay Landlord
rent for such period.
28. CONSTRUCTION ALLOWANCE. In accordance with the terms and provisions
of Exhibit B attached hereto and made part hereof for all purposes, Landlord
will provide up to $238,384.00 (the "Construction Allowance" as hereinafter
defined in Exhibit B) to Tenant for the construction of improvements to the
Premises (the "Work" as hereinafter defined as Exhibit B), inclusive of all
architecture, engineering, space planning costs and construction management
fees. Such amounts shall be paid upon receipt by Landlord of bona fide invoices
for such costs from Tenant. Landlord will advance additional amounts up to
$137,071.00 for such costs, which advances shall bear interest at eleven percent
(11%) per annum and shall be repaid in equal monthly installments of principal
and interest over the remaining term of this Lease commencing with the Rent
Commencement Date.
29. LETTER OF CREDIT.
A. On or before the Commencement Date, Tenant shall deliver to Landlord
an executed original irrevocable standby letter of credit ("L.C.") in the amount
of $125,000 in favor of Landlord, such L.C. to have a term of one hundred
twenty-three (123) months from the Commencement Date of the Lease. The L.C. may
be drawn upon and used upon each occurrence of an event of default; Landlord may
use all or part of the L.C. to pay past due rent or other payments due Landlord
under this Lease, and the cost of any other damage, injury, expense or liability
caused by such event of default without prejudice to any other remedy provided
herein or provided by law. Such L.C. shall be issued in a form and by a National
Banking Association (located within the continental United States of America)
(hereinafter the "Issuer"), acceptable to Landlord. With respect to any default
occurring during the term of the Lease, Landlord shall have the right to proceed
against the total L.C. at the sole discretion of Landlord regarding items and
the amounts to be drawn upon relating to any default by Tenant. If Tenant
exercises either its extension option under Paragraph 31 herein, then Tenant
agrees that the L.C. will be extended in the same amount and under the same
terms for any additional term of this Lease.
B. Such L.C. shall contain the following terms and conditions:
(1) The L.C. shall be deemed to be automatically extended without
amendment from year to year, with renewal occurring annually, from the date of
its issuance or any future expiration date unless at least 30 days prior to any
future expiration date the bank notifies Landlord, in writing, by certified
mail, return receipt requested, that the issuer intends not to renew the L.C.
for an additional year.
(2) In the event the L.C. will not be extended and has or will
expire by its terms and the Lease Agreement, by and between Tenant and Landlord,
including any or all extensions or renewals, has not expired, then Landlord
shall be allowed to draft upon Issuer for the full amount of the L.C.
(3) The L.C. shall be subject to the "Uniform Customs and Practices
for Documentary Credits (1994 Revision), International Chamber of Commerce
Publication No. 400."
(4) The amount of the L.C. shall be payable at sight to Landlord
within three (3) days of presentation of the sight draft, in whole or partial
drawings, upon presentation to the Issuer of the following documents:
a. Landlord's written demand for payment making reference to the
date and number of the L.C.;
b. Landlord's signed certificate that the amount drawn is to meet
any event of default as set forth in the Lease Agreement by and
between Tenant and Landlord; and
c. The original L.C. for endorsement of the amount paid and if the
draft is for the full amount the L.C. is to be surrendered to
the Issuer.
(5) The Issuer shall not have the right to assign the L.C. to any
other person, entity, National Banking Association, or financial institution
without Landlord's consent which shall not be unreasonably withheld.
(6) Any presentment by Landlord of the L.C. for the payment shall be
made at a national banking association located within the continental United
States of America.
(7) The Issuer shall not modify the L.C. without the prior written
consent of Landlord.
(8) Landlord shall have the right to assign and transfer its right
and interests in the L.C. to any other beneficiary/party acceptable to Landlord.
C. The Landlord will return the L.C. to the Tenant if Tenant performs
all of the following obligations: (1) Tenant meets all of its annual revenue
projections through December 1999 as set forth on Exhibit "D" attached hereto,
and (2) Tenant's annual revenue projections through December 1999 as set forth
on Exhibit D are verified in the annual 10-K filed with the Security Exchange
Commission. At no time shall the L.C. be returned to Tenant unless Tenant meets
the requirements set forth in the preceding sentence.
Landlord
[INITIALS]
-----------------
Tenant
[INITIALS
14
30. LEASE CONTINGENCY. Landlord and Tenant hereby agree that Landlord's
obligations hereunder are subject to and conditioned upon Landlord's review and
approval of Mr. Clinton Howard's personal financial statements in a form that
are acceptable to Landlord. In the event Landlord has not received such
financial statements in a form that are acceptable to Landlord and does not
execute this Lease, Landlord shall have no obligations under this Lease.
31. HVAC MAINTENANCE. As of the Commencement Date, Landlord shall
deliver, at Landlord's cost, to Tenant the heating and air conditioning system
(the "HVAC System") in good repair and working order. As of the Commencement
Date, Landlord shall deliver, at Landlord's cost, the HVAC System so that it
provides temperature, in Landlord's reasonable judgement, for the comfortable
occupancy and use of the Premises during ordinary business hours. Thereafter,
Tenant shall, pursuant to Paragraph 5.E. of the Lease, enter into a regularly
scheduled preventive maintenance/service contract for servicing the HVAC System
and be responsible for all costs and expenses regarding the HVAC System.
[Remainder of Page Intentionally Left Blank]
Landlord
[INITIALS]
-----------------
Tenant
[INITIALS
15
EXHIBIT "A"
LEGAL DESCRIPTION
Being an approximate 119,192 square foot lease space located at 2301 Chovanetz
Court, Irving, Dallas County, Texas, in an approximate 119,192 square foot
building known as 2301 Chovanetz Court and located on, a tract being further
described as:
Metes and bounds description
BEING a 4.355 acre tract out of TRACT "K" in the Walnut Hill Distribution Center
North in the City of Irving, Texas as originally recorded in Volume 76081, page
296, Deed Records of Dallas County and corrected by Certificate of Correction in
Volume 77247, Page 0005, Deed Records of Dallas County, and being more
particularly described as follows:
BEGINNING at the intersection of the North line of Tract "K-1" (a 50 foot
private R.O.W. easement) and the East right-of-way line of Hurd Drive;
THENCE leaving Hurd Drive South 73 degrees 07' 00" East 22.28 feet along the
North line of said Tract "K-1" to a point for a corner; said point being the
point of curvature of a curve to the left with a central angle of 17 degrees 09'
40" and a radius of 739.65 feet;
THENCE with said curve to the left 221.54 feet to the point of tangency of said
curve;
THENCE continuing along the North line of Tract "K-1" North 89 degrees 43' 20"
East 360.24 feet to a point for a corner; said point being the southwest corner
of an 8.019 acre tract conveyed by Las Colinas Corporation to E.I. DuPont
DeNemours and Company, Inc., as recorded in Volume 78012, Page 0685, Dallas
County Deed Records, January 17, 1978;
THENCE leaving the North line of Tract "K-1" North 00 degrees 16' 40" West
303.43 feet along the western boundary line of said 8.019 acre tract to a point
for a corner;
THENCE continuing along the western boundary line of said 8.019 acre tract,
North 44 degrees 46' 50" West 266.16 feet to a point for a corner; said point
being in the East right-of-way line of Hurd Drive; said point also being the
Northwest corner of said 8.019 acre tract;
THENCE along Hurd Drive South 45 degrees 13' 10" West 439.00 feet to a point for
a corner; said point being the point of curvature of a curve to the left with a
central angle of 28 degrees 20' 45" and a radius of 461.14 feet;
THENCE Southwesterly along Hurd Drive with said curve to the left through a
central angle of 22 degrees 08' 10" a distance of 178.16 feet to the POINT OF
BEGINNING.
CONTAINING 4.355 acres of land, more of less.
16
EXHIBIT B
TENANT FINISH-WORK: ALLOWANCE
1. If the Premises have heretofore been occupied by any prior tenant,
then except as set forth in this Exhibit, Tenant accepts the Premises in their
"as is" condition on the date that this Lease is entered into.
2. On or before June 15, 1998, Tenant shall provide to Landlord for its
approval final working drawings, prepared by an architect that has been approved
by Landlord (which approval shall not be unreasonably withheld), of all
improvements that Tenant proposes to install in the Premises; such working
drawings shall include the partition layout, ceiling plan, electrical outlets
and switches, telephone outlets, drawings for any modifications to the
mechanical and plumbing systems of the Building, and detailed plans and
specifications for the construction of the improvements called for under this
Exhibit in accordance with all applicable governmental laws, codes, rules, and
regulations. Further, if any of Tenant's proposed construction work will affect
the Building's HVAC, electrical, mechanical, or plumbing systems, then the
working drawings pertaining thereto shall be prepared by the Building's engineer
of record, whom Tenant shall at its cost engage for such purpose. Landlord's
approval of such working drawings shall not be unreasonably withheld, provided
that (a) they comply with all applicable governmental laws, codes, rules, and
regulations, (b) such working drawings are sufficiently detailed to allow
construction of the improvements in a good and workmanlike manner, and (c) the
improvements depicted thereon conform to the rules and regulations promulgated
from time to time by the Landlord for the construction of tenant improvements (a
copy of which has been delivered to Tenant). As used herein, "WORKING DRAWINGS"
shall mean the final working drawings approved by Landlord, as amended from time
to time by any approved changes thereto, and "WORK" shall mean all improvements
to be constructed in accordance with and as indicated on the Working Drawings.
Approval by Landlord of the Working Drawings "shall not be a representation or
warranty of Landlord that such drawings are adequate for any use, purpose, or
condition, or that such drawings comply with any applicable law or code, but
shall merely be the consent of Landlord to the performance of the Work. Tenant
shall, at Landlord's request, sign the Working Drawings to evidence its review
and approval thereof. All changes in the Work must receive the prior written
approval of Landlord, and in the event of any such approved change Tenant shall,
upon completion of the Work, furnish Landlord with an accurate, reproducible
"as-built" plan (e.g., sepia) of the improvements as constructed, which plan
shall be incorporated into this Lease by this reference for all purposes.
3. The Work shall be performed only by contractors and subcontractors
approved in writing by Landlord, which approval shall not be unreasonably
withheld. All contractors and subcontractors shall be required to procure and
maintain (a) insurance against such risks, in such amounts, and with such
companies as Landlord may reasonably require and (b) payment and performance
bonds, if Landlord requires, covering the cost of the Work and otherwise
reasonably satisfactory to Landlord. Certificates of such insurance, with paid
receipts therefor, and copies of such bonds must be received by Landlord before
the Work is commenced. The Work shall be performed in a good and workmanlike
manner that is free of defects and is in strict conformance with the Working
Drawings, and shall be performed in such a manner and at such times as to
maintain harmonious labor relations and not to interfere with or delay
Landlord's other contractors, the operation of the Building, and the occupancy
thereof by other tenants. All contractors and subcontractors shall contact
Landlord and schedule time periods during which they may use Building facilities
in connection with the Work (e.g., elevators, excess electricity, etc.).
4. If a delay in the performance of the Work occurs (a) because of any
change by Tenant to the space plans or the Working Drawings, (b) because of any
specification by Tenant of materials or installations in addition to or other
than Landlord's standard finish-out materials, or (c) if Tenant, any contractor
or subcontractor, or Tenant's employees or agents otherwise delays completion of
the Work, then, notwithstanding any provision to the contrary in this Lease, the
Commencement Date shall be deemed to be the date that, in the reasonable opinion
of Landlord, substantial completion would have occurred if such delays had not
taken place. If the Premises are not ready for occupancy and the Work is not
substantially completed (as reasonably determined by Landlord) on the scheduled
Commencement Date for any reason other than the reasons specified in the
immediately preceding sentence, then the obligations of Landlord and Tenant
shall continue in full force and Base Rent shall be abated until the date the
Work is substantially completed, which date shall be the Commencement Date.
5. Tenant shall bear the entire cost of performing the Work (including,
without limitation, design of the Work and preparation of the Working Drawings,
costs of construction labor and materials, electrical usage during construction,
additional janitorial services, general tenant signage, related taxes and
insurance costs, all of which costs are herein collectively called the "TOTAL
CONSTRUCTION COSTS") in excess of the Construction Allowance (hereinafter
defined). Upon approval of the Working Drawings and selection of a contractor,
Tenant shall promptly (a) execute a work order agreement prepared by Landlord
which identifies such drawings, itemizes the Total Construction Costs and sets
forth the Construction Allowance, and (b) pay to Landlord 50% of the sum of:
the amount by which the estimated Total Construction Costs exceed the
Construction Allowance plus the amount, if any, up to the maximum amount of
$137,071.00, to be advanced by Landlord to Tenant pursuant to Paragraph 28 of
the Lease. If the Work will not be substantially completed before the expiration
of the first full calendar month after the approval of the Working Drawings and
selection of a contractor, the remaining portion of such excess shall be payable
in equal monthly installments on the first day of each month, beginning the
first day of the second full calendar month after approval of the Working
Drawings and selection of a contractor, and on the substantial completion date.
The monthly installments due on the first day of each month shall equal the
portion of such remaining excess divided by the number of scheduled monthly
installment payment dates (including the substantial completion date) from the
date hereof through the estimated substantial completion date for the Work.
Upon substantial completion of the Work and before Tenant occupies the Premises
to conduct business therein, Tenant shall pay to Landlord an amount equal to the
Total Construction Costs (as adjusted for any approved changes to the Work),
less (1) the amount of the payments already made by Tenant, and (2) the amount
of the Construction Allowance.
6. Landlord shall provide to Tenant a construction allowance (the
"CONSTRUCTION ALLOWANCE") up to $238,384.00 for the Work, inclusive of all
architecture, engineering, space planning costs, and construction management
fees, as set forth in Paragraph 28 of the Lease.
7. Landlord or its affiliate shall supervise the Work, make
disbursements required to be made to the contractor, and act as a liaison
between the contractor and Tenant and coordinate the relationship between the
Work, the Building, and the Building's systems.
17
EXHIBIT C
BASE RENT SCHEDULE
2301 Chovanetz Court
Net Costs - Not Including Expenses
$ per year $ per month Cumulative Total
-------------- ------------ ----------------
Months 1 thru 2 Free $ -0-
Months 3 thru 14 119,192 x $2.75 = $ 327,778 $ 27,315 $ 327,778
Months 15 thru 18 119,192 x $3.00 = $ 357,576 $ 29,798 $ 446,970
Month 19 Free $ -0- $ 446,970
Months 20-27 119,192 x $3.00 = $ 357,576 $ 29,798 $ 685,354
Months 28 thru 39 119,192 x $3.00 = $ 357,576 $ 29,798 $ 1,042,930
Months 40 thru 51 119,192 x $3.25 = $ 387,374 $ 32,281 $ 1,430,304
Months 52 thru 63 119,192 x $3.25 = $ 387,374 $ 32,281 $ 1,817,678
Months 64 thru 75 119,192 x $3.25 = $ 387,374 $ 32,281 $ 2,205,052
Months 76 thru 87 119,192 x $3.50 = $ 417,172 $ 34,764 $ 2,622,224
Months 88 thru 99 119,192 x $3.50 = $ 417,172 $ 34,764 $ 3,039,396
Months 100 thru 111 119,192 x $3.50 = $ 417,172 $ 34,764 $ 3,456,568
Months 112 thru 123 119,192 x $3.50 = $ 417,172 $ 34,764 $ 3,873,740
-----------
$ 3,873,740
18
EXHIBIT D
GLOBENET INTERNATIONAL I, INC.
PRO-FORMA FINANCIALS
1998 1999 2000
---------- ---------- ----------
Revenues $ 25,167 $ 59,400 $ 144,900
Growth Rate 79% 136% 144%
Gross Margin 72.5% 71.6% 69.0%
Operating Margin 4.0% 9.5% 14.1%
EBITDA Margin 4.7% 10.3% 14.8%
EBITDA 1,191 6,124 21,462
Capital Expenditures (230) (600) (1,000)
Free Cash Flow 961 2,524 20,462
Cash 199 430 8,787
Net Worth 4,204 8,951 24,207
19
EXHIBIT E
GUARANTY
As a material inducement to Landlord to enter into the Lease, dated
June ____, 1998 (the "LEASE"), between GLOBENET INTERNATIONAL I, INC., A
DELAWARE CORPORATION, as Tenant, and CIIF ASSOCIATES II LIMITED PARTNERSHIP BY:
AEW ADVISORS (FORMERLY KNOWN AS COPLEY ADVISORS, INC.), as Landlord, the
undersigned ("GUARANTOR ") hereby unconditionally and irrevocably guarantees
the complete and timely performance of each obligation of Tenant under the
Lease and any extensions or renewals of and amendments to the Lease to the same
extent as if Guarantor were executing the Lease. This Guaranty is an absolute,
primary, continuing, and general guaranty of payment and performance and is
independent of Tenant's obligations under the Lease. Guarantor waives any right
to require Landlord to (a) join Tenant with Guarantor in any suit arising under
this Guaranty, (b) proceed against or exhaust any security given to secure
Tenant's obligations under the Lease, or (c) pursue or exhaust any other remedy
in Landlord's power. Landlord may, without notice or demand and without
affecting Guarantor's liability hereunder, from time to time, compromise,
extend or otherwise modify any or all of the terms of the Lease. The
undersigned further covenants and agrees that this Guaranty shall remain in
full force and effect as to any renewal, modification or extension, or any
holdover by Tenant thereunder, and as to any assignee of Tenant's interest or
interests under the Lease, whether or not known to or approved by the
undersigned and that no subletting, assignment, or other transfer of the Lease,
or any interest therein, shall operate to extinguish or diminish the liability
of the undersigned hereunder.
Whatever reference is made to the liability of Tenant in the Lease,
such reference shall be deemed likewise to refer to the undersigned, jointly and
severally, with Tenant. The liability of the undersigned for all obligations of
the Lease shall be primary; in any right of action which shall accrue to
Landlord under the Lease, Landlord may, at Landlord's option, proceed against
the undersigned and/or Tenant, jointly or severally, and may proceed against the
undersigned without having demanded performance of, commenced any action
against, exhausted any remedy against or obtained any judgment against Tenant.
This is a guaranty of payment and not of collection, and the undersigned hereby
waives any obligation on the part of Landlord to enforce the terms of the Lease
against Tenant as a condition to Landlord's right to proceed against the
undersigned hereunder.
The undersigned hereby waives, to the maximum extent permitted by law,
all defenses available to a surety, whether the waiver is specifically herein
enumerated or not.
It is further agreed that all of the terms and provisions hereof shall
inure to the benefit of the successors and assigns of the Landlord, and shall be
binding upon the respective heirs, executors, administrators, successors and
assigns of the undersigned.
Guarantor hereby waives all demands for performance, notices of
performance, and notices of acceptance of this Guaranty. The liability of
Guarantor under this Guaranty will not be affected by (1) the release or
discharge of Tenant from, or impairment, limitation or modification of, Tenant's
obligations under the Lease in any bankruptcy, receivership, or other debtor
relief proceeding, whether state or federal and whether voluntary or
involuntary; (2) the rejection or disaffirmance of the Lease in any such
proceeding; or (3) the cessation from any cause whatsoever of the liability of
Tenant under the Lease. Guarantor shall pay to Landlord all costs incurred by
Landlord in enforcing this Guaranty (including, without limitation, reasonable
attorneys' fees and expenses).
The Landlord and Tenant agree that this Guaranty will be of no further
effect, void, and returned by the Landlord to the Tenant if Tenant performs all
of the following obligations: (1) Tenant meets all of its annual revenue
projections through December 1999 as set forth on Exhibit "D" attached to the
Lease, and (2) Tenant's annual revenue projections through December 1999 as set
forth on Exhibit D are verified in the annual 10-K filed with the Security
Exchange Commission. At no time shall this Guaranty be returned to Tenant, and
the parties agree that the Guaranty shall remain in full force and effect,
unless Tenant meets the requirements set forth in the preceding sentence and
Tenant receives written notice of same from Landlord.
By: /s/ CLINTON H. HOWARD
------------------------------------------
Clinton H. Howard
Home Address: 3917 Fox Glen Dr.
-------------------------------
-------------------------------
Irving, TX 75062
-------------------------------
Social Security No.: ###-##-####
-------------------------
Texas Driver's License No.: 028 98 715
------------------
20
ADDENDUM TO STANDARD INDUSTRIAL LEASE AGREEMENT
THIS ADDENDUM TO STANDARD INDUSTRIAL LEASE AGREEMENT (this "Option
Agreement") is to be attached to and shall form a part of that certain Standard
Industrial Lease Agreement (the "Lease") dated June 19, 1998, between CIIF
ASSOCIATES II LIMITED PARTNERSHIP, a Delaware limited partnership ("Landlord")
and GLOBENET INTERNATIONAL I, INC., a Delaware corporation ("Tenant"),
concerning the demised premises as defined in the Lease and more particularly
described on Exhibit "A" attached hereto, together with all improvements thereon
and all rights and appurtenances pertaining thereto, including any right, title
and interest of Landlord in and to adjacent streets, alleys and rights-of-way
(collectively the "Property").
1. Landlord hereby grants to Tenant an option (the "Option") to
purchase the Property on the terms and conditions set forth in this Option
Agreement.
2. The Option shall commence on the date hereof and may be exercised
until and shall terminate on the date two (2) years thereafter (the "Expiration
Date") unless sooner terminated in accordance with the provisions hereof,
Provided that Tenant is not in default of any of the terms, covenants and
conditions of the Lease, and the Lease has not been assigned or the Premises (or
a part thereof) sublet, except as provided by Paragraph 14 of the Lease, Tenant
may exercise the Option by delivering written notice to Landlord that Tenant has
elected to purchase the Property pursuant to the provisions hereof. The notice
must be delivered to Landlord at Landlord's address for notices set forth in the
Lease. The notice must set forth the date on which Tenant desires to close the
acquisition of the Property (the "Closing Date") which date shall not be later
than the Expiration Date, as defined in this Paragraph. In the event that the
Option is not exercised prior to the Expiration Date, the Option shall
terminate.
3. In consideration of the Option set forth herein, Tenant shall pay to
Landlord, in addition to any rent and other sums payable by Tenant to Landlord
under the Lease, a non-refundable option payment in the amount of $100.00, the
receipt and sufficiency of which is hereby acknowledged.
4. The purchase price ("Purchase Price") for the Property shall be
Three Million Five Hundred Thousand Dollars ($3,500,000).
5. Prior to the Closing Date, Landlord shall, (i) at Tenant's expense,
deliver to Tenant a copy of a current survey of the Property prepared by a
Registered Professional Land Surveyor, and (ii) at Landlord's expense deliver to
Tenant a title commitment ("Title Commitment") covering the Property binding the
issuing title company to issue a Texas Owner Policy of Title Insurance on the
standard form prescribed by the Texas State Board of Insurance at the Closing,
in the full amount of the Purchase Price, insuring Tenant's fee simple title to
the Property to be good and indefeasible, subject only to the Permitted
Exceptions (as hereinafter defined), together with copies of all recorded
instruments affecting the Property and recited as exceptions in the Title
Commitment (the "Title Documents"), and a current tax certificate. Tenant shall
have ten (10) days after the receipt of the
ADDENDUM TO STANDARD
INDUSTRIAL LEASE AGREEMENT Page - 1
21
latter of the survey, the Title Commitment or the Title Documents, to review
same and to deliver in writing to Landlord such objections as Tenant may have to
anything contained in them. Any such item to which Tenant shall not object shall
be deemed a "Permitted Exception". If there are objections by Tenant, or a third
party lender, Landlord shall, in good faith, attempt to satisfy such objections
prior to Closing, but Landlord shall not be required to incur any cost to do so.
If Landlord delivers written notice to Tenant on or before the Closing Date that
Landlord is unable to satisfy such objections, Tenant may either waive such
objections and accept such title as Landlord is able to convey or terminate
Tenant's election to exercise the Option by written notice to Landlord.
6. The closing of the sale (the "Closing") shall take place on the
Closing Date at a location and at a time mutually acceptable to Landlord and
Tenant. At the Closing: (i) Landlord shall deliver to Tenant a general warranty
deed and bill of sale conveying good and indefeasible title in fee simple to the
Property; subject, however, only to the lien for taxes for the year of Closing
not yet due and payable, and the Permitted Exceptions; and (ii) Tenant shall
deliver to Landlord in readily available funds the full amount of the Purchase
Price. Each party shall pay its share of all other closing costs which are
customarily paid by a seller or purchaser in a transaction of this character in
Dallas County, Texas. Each party shall pay its own attorneys' fees in connection
with the closing of Tenant's acquisition. In the event that the Closing does not
occur prior to the Expiration Date, then the Option shall terminate, be void,
and Tenant's rights under this Option Agreement shall be null and void.
7. The provisions of this Option Agreement and the Option shall
terminate, without notice, demand or any other action being taken by Landlord,
all of which are hereby expressly waived by Tenant, upon the earlier to occur of
the following: (i) the termination of the Lease; or (ii) the Expiration Date.
8. Tenant, at its election, may file this Option Agreement of record.
Executed effective this 12 day of June, 1998.
TENANT: LANDLORD;
GLOBENET INTERNATIONAL I, INC., CIIF ASSOCIATES II LIMITED PARTNERSHIP,
a Delaware corporation a Delaware limited partnership
By: /s/ CLINTON H. HOWARD By: AEW Advisors, Inc.,
------------------------------- a Massachusetts corporation,
Name: Clinton H. Howard Managing General Partner
-----------------------------
Title: President
---------------------------- By: /s/ MARK A. ALBERTSON
----------------------------------
Name: Mark A. Albertson
--------------------------------
Title: Vice President
-------------------------------
ADDENDUM TO STANDARD
INDUSTRIAL LEASE AGREEMENT - Page 2
22
THE STATE OF TEXAS )
)
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public in and for the
State of Texas, on this day personally appeared Howard Clinton of GlobeNet
International I, Inc., a Delaware corporation, [known to me] or [proved to me
through his Texas Drivers License or other document] to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that he executed the same as a duly authorized officer of such
corporation, for the purposes and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 12th day of June, 1998.
/s/ CHARLOTTE BURROWS
---------------------------------------------
Notary Public, State of Texas
CHARLOTTE BURROWS, NOTARY PUBLIC
State of Texas
Comm. Exp. 04-03-2001
THE STATE OF MASSACHUSETTS )
)
COUNTY OF SUFFOLK )
BEFORE ME, the undersigned authority, a Notary Public in and for the
State of Massachusetts, on this day personally appeared Mark A. Albertson of AEW
Advisors Inc., a Massachusetts corporation, general partner of CIIF Associates
II Limited Partnership, a Delaware limited partnership, [known to me] or [proved
to me through his Texas Drivers License or other document] to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that he executed the same as a duly authorized officer of such
corporation, for the purposes and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 19th day of June, 1998.
/s/ GAIL M. TRAMONTOZZI
----------------------------------------------
Notary Public, State of Massachusetts
ADD
- ---
Gail M. Tramontozzi, NOTARY PUBLIC
My Commission Expires Mar. 30, 2001
ADDENDUM TO STANDARD
INDUSTRIAL LEASE AGREEMENT - Page 3
23
EXHIBIT "A"
LEGAL DESCRIPTION
Being an approximate 119,192 square foot lease space located at 2301 Chovanetz
Court, Irving, Dallas County, Texas, in an approximate 119,192 square foot
building known as 2301 Chovanetz Court and located on a tract being further
described as:
Metes and bounds description
BEING a 4.355 acre tract out of TRACT "K" in the Walnut Hill Distribution
center North in the City of Irving, Texas as originally recorded in Volume
76081, page 296, Deed Records of Dallas County and corrected by Certificate of
Correction in Volume 77247, Page 0005, Deed Records of Dallas County, and being
more particularly described as follows:
BEGINNING at the intersection of the North line of Tract "K-1" (a 50 foot
private R.O.W. easement) and the East right-of-way line of Hurd Drive;
THENCE leaving Hurd Drive South 73 degrees 07' 00" East 22.28 feet along the
North line of said Tract "K-1" to a point for a corner; said point being the
point of curvature of a curve to the left with a central angle of 17 degrees 09'
40" and a radius of 739.65 feet;
THENCE with said curve to the left 221.54 feet to the point of tangency of said
curve;
THENCE continuing along the North line of Tract "K-1" North 89 degrees 43' 20"
East 360.24 feet to a point for a corner; said point being the Southwest corner
of an 8.019 acre tract conveyed by Las Colinas Corporation to E.I. DuPont
DeNemours and Company, Inc., as recorded in Volume 78012, Page 0685, Dallas
County Deed Records, January 17, 1978;
THENCE leaving the North line of Tract "K-1" North 00 degrees 16' 40" West
303.43 feet along the western boundary line of said 8.019 acre tract to a point
for a corner;
THENCE continuing along the western boundary line of said 8.019 acre tract,
North 44 degrees 46' 50" West 266.16 feet to a point for a corner; said point
being in the East right-of-way line of Hurd Drive; said point also being the
Northwest corner of said 8.019 acre tract;
THENCE along Hurd Drive South 45 degrees 13' 10" West 439.00 feet to a point for
a corner; said point being the point of curvature of a curve to the left with a
central angle of 28 degrees 20' 45" and a radius of 461.14 feet;
THENCE southwesterly along Hurd Drive with said curve to the left through a
central angle of 22 degrees 08' 10" a distance of 178.16 feet to the POINT OF
BEGINNING.
CONTAINING 4.355 acres of land, more of less.