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Exhibit 10.16
WILLIAMS-SONOMA BUILDING
[NAME OF BUILDING]
OFFICE LEASE
BETWEEN
TJM PROPERTIES, L.L.C. ("LANDLORD")
AND
WILLIAMS-SONOMA, INC. ("TENANT")
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TABLE OF CONTENTS
Page
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1. Premises................................................. 1
2. Term..................................................... 2
3.A Construction............................................. 3
3. Preparation for Occupancy................................ 6
4. Rent..................................................... 7
5. Maintenance and Repairs.................................. 7
6. Services................................................. 11
7. Alterations and Improvements............................. 11
8. Inspection............................................... 12
9. Casualty................................................. 12
10. Insurance and Indemnity.................................. 14
11. Condemnation............................................. 17
12. Default.................................................. 18
13. Holdover................................................. 20
14. Assignment and Subletting................................ 20
15. Quiet Enjoyment.......................................... 21
16. Subordination............................................ 21
17. Rules and Regulations.................................... 21
18. Estoppel Certificate..................................... 21
19. Signage; Change of Name.................................. 22
20. Mechanics' Liens......................................... 22
21. Extension................................................ 22
22. Notices.................................................. 23
23. Miscellaneous............................................ 24
24. Brokers.................................................. 27
25. Attachments.............................................. 27
26. Arbitration.............................................. 27
RIDER 1....................................................... 30
RIDER 2....................................................... 35
EXHIBIT A..................................................... 41
EXHIBIT B..................................................... 43
EXHIBIT C..................................................... 47
EXHIBIT D..................................................... 48
EXHIBIT E..................................................... 50
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LEASE
THIS LEASE, made as of the thirteenth day of February, 1998, between TJM
PROPERTIES, L.L.C. and/or its assigns, an Oklahoma limited liability company,
having its principal office at 3232 West Britton Road, Suite 250, Oklahoma City,
OK 73120 ("Landlord"), and WILLIAMS-SONOMA, INC., a California corporation
having its principal office at 3250 Van Ness Avenue, San Francisco, CA 94109
("Tenant").
1. Premises
(a) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord all of the space shown on the attached Exhibit A (the "Premises")
consisting of approximately 35,862 square feet of rentable area in a building to
be commonly known as "The Williams-Sonoma Building" (The "Building") situated on
real property located in Commerce Park at Block 9, Lot 1 of Silver Springs
Addition to Oklahoma City, in Oklahoma City, Oklahoma, said property being more
fully described in Exhibit B (the "Land"), together with the use of the
hallways, corridors, lobbies, lavatories, stairways, entrances, exits,
sidewalks, driveways, the parking areas provided for in Section 6 (a) (vi) and
all other areas and facilities of the Building and Land appurtenant thereto as
they may exist from time to time (the "Appurtenances"). Collectively, the
Building, the Land, and the Appurtenances are sometimes referred to in this
Lease as the "Property". The ratio by which the rentable area of the Premises
bears to the rentable area of the Building is referred to herein as the Tenant's
proportionate share ("Proportionate Share") and is one hundred percent (100%).
(b) Subject to the provisions of Paragraph 1(c) below, Landlord warrants
that it and no other person or entity has the right to lease the Premises to
Tenant; Landlord further warrants that the Land and the Building, and the
permitted uses thereof by Tenant, will, at the time possession of the Premises
is delivered to Tenant, comply with all laws, ordinances, orders, rules,
regulations and requirements of all federal, state and municipal governments,
departments, commissions, boards and officers, and all orders, rules and
regulations of the national Board of Fire Underwriters, the local Board of Fire
Underwriters or any other body or
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bodies exercising similar functions, which may be applicable to the Property,
including the curbs and vaults adjoining the Land (collectively "Applicable
Laws").
(c) Landlord represents and warrants that it has the right to acquire
the Property pursuant to a written agreement between Landlord and Express
Development II, L.L.C. Landlord acknowledges that, in entering into this Lease,
Tenant has relied on Landlord's representations and warranties of its intent to
acquire the Property in a timely manner. Accordingly, the parties agree that
Tenant's obligations under this lease shall be conditioned on the satisfaction
of each and every one of the conditions set forth below on or before March 2,
1998: (i) the closing of the purchase of the Property by Landlord; (ii) the
delivery to Tenant of evidence of financing sufficient to construct the
improvements to be constructed by Landlord pursuant to this Lease; (iii) the
recordation of a "Memorandum of Lease" and the issuance of leasehold title
insurance to Tenant in form and substance acceptable to Tenant and sufficient to
insure the priority of Tenant's interest in this Lease, subject to no monetary
encumbrances other than Landlord's acquisition/construction loan; (iv) the
delivery to Tenant of a fully executed Subordination, Non-Disturbance and
Attornment Agreement, in substantially the form of the agreement attached hereto
as Exhibit "E"; and (v) evidence that Landlord is duly organized and in good
standing in the State of Oklahoma. None of the foregoing conditions may be
waived, either expressly or by implication, except by a written waiver signed by
Tenant. Neither party shall have any further obligations under this Lease in the
event Tenant terminates by reason of the failure of a condition set forth above.
(d) The Premises shall be used for any lawful use consistent with the
other uses in the Park and not in conflict with other uses in place at the time
of sublease in the event Tenant subleases Premises.
2. Term
(a) The term of this Lease is ten (10) years (plus a partial month, if
any, immediately following the Commencement Date if the Commencement Date is
other than the first of the month) and shall commence on the later of August 15,
1998, or such date as the Premises shall be ready for occupancy (as the case may
be, the "Commencement Date"), and end on the later of August 31, 2008, or that
date which is the last day of the one hundred twentieth (120th) full calendar
month after the Commencement Date (as the case may be, the "Expiration Date"),
both dates inclusive constitute the "Original Term", unless the Original Term is
extended as provided
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in Section 21. The Premises shall be deemed ready for occupancy upon the earlier
of (i) the date an occupancy permit is issued for the Premises, including all
leasehold improvements or (ii) the date Tenant shall commence operations of its
call center business in the Premises. Tenant's preparation of the Premises for
occupancy, installation of telephone equipment and personal property, and
stocking of supplies as provided in Sections 3(b), (c), (d), and (e) below shall
not be deemed a commencing of operations. A "Lease Year" shall be a 12 month
period, the first day of which shall commence on the Commencement Date if it is
the first day of a month, otherwise, on the first day of the next month
following the Commencement Date and each subsequent Lease Year shall begin on
successive anniversaries of the commencement of the first Lease Year. A "Lease
Month" shall be a calendar month, the first of which shall commence on the
Commencement Date if it is the first day of a month, otherwise, on the first day
of the month next following the Commencement Date, and each subsequent Lease
Month shall begin on the first day of a month and shall end on the last day of
such month. "Term", as used in this Lease, shall be deemed to include the
Original Term and any extensions thereof (such extensions, or any of them, being
sometimes referred to as the "Extended Term").
(b) At any time after the Commencement Date, at the request of either
party, both parties shall execute a supplemental agreement to this Lease stating
the commencement Date and the Expiration Date.
3A. Construction
(a) Within twenty (20) days after execution of this Lease, Landlord
shall submit to Tenant the revised plans and specifications (the "Plans and
Specifications") for the Building and Appurtenances (the "Improvements") and the
construction schedule (collectively, the "Construction Documents"). The Plans
and Specifications shall be revised from the plans Tenant has provided Landlord
reflecting a 35,862 square foot building in Las Vegas, Nevada, currently
occupied by Tenant. The Plans and Specifications shall reflect the requirements
needed to comply with all Applicable Laws, including, without limitation the
applicable building codes for the State of Oklahoma and the City of Oklahoma
City, and shall include the following: (i) architectural; (ii) structural; (iii)
mechanical; (iv) plumbing; (v) electrical; (vi) fire/life/safety, including fire
sprinklers; and (vii) landscaping plans and specifications. Tenant shall have
two (2) business days following receipt of the Construction Documents to approve
or disapprove them. Failure by Tenant to respond within said two (2) business
days period shall be deemed
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approval of the Construction Documents. If the Construction Documents are
disapproved, Tenant shall inform Landlord of the reasons for such disapproval
after which Landlord shall have five (5) business days to submit revised
Construction Documents. Landlord shall not unreasonably refuse to satisfy any
objections of Tenant to the Construction Documents. If Tenant and Landlord are
unable to agree upon the Construction Documents by February 23, 1998, Tenant
shall have the right to terminate this Lease agreement, and thereafter, neither
party shall have any obligation to the other.
(b) The Building shall be constructed strictly in accordance with the
Plans and Specifications and no change shall be made in the Construction
Documents without the approval of Tenant, which approval shall not unreasonably
be withheld, delayed or conditioned. Any request made by Landlord to Tenant to
approve a change in the Construction Documents to which no objection is made
within five (5) business days of receipt of the change requested by Tenant and
Tenant's architect (if Tenant has provided its name and address to Landlord)
shall be deemed approved.
(c) Landlord's architect shall be Richard R. Brown, Associates
(Attention: Rick Brown), 2800 W. Country Club Drive, Suite 220, Oklahoma City,
OK 73116, phone number 405/843-0522 and fax number 405/843-0523. Landlord's
general contractor shall be Van Hoose Construction Co. (Attention: Jeff Van
Hoose), 920 N.W. 60th Street, Oklahoma City, OK 73118, phone number 405-848-0415
and fax number 405/848-3911.
(d) Landlord shall apply for and thereafter diligently pursue the
issuance of a building permit for the Improvements as soon as reasonably
practicable after the approval of Construction Documents. Landlord shall
commence construction of the Improvements in accordance with the Plans and
Specifications and all Applicable Laws by that date which shall be ten (10) days
following the availability of a building permit for the Improvements. Landlord
shall pursue construction of the Improvements without interruption, subject to
Force Majeure Events, in a good and workmanlike manner diligently to completion.
The Improvements shall be deemed substantially completed in accordance with the
Plans and Specifications upon the satisfaction of all of the following
conditions:
(i) Issuance of a certificate of occupancy for the Improvements which
will permit legal occupancy of the entire Improvements and full use of the
Premises by Tenant;
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(ii) Delivery of a certification by Landlord, Landlord's architect and
general contractor: that the Improvements have been completed with the exception
of punch list items, in accordance with the Plans and Specifications and stating
those respects in which the Improvements remain incomplete; that all utilities
and like services have been connected and are in operation; and that the
Improvements are ready for occupancy and full use of the Premises by Tenant;
(iii) Completion of an inspection of the Improvements by Tenant or
Tenant's architect which confirms completion, with the exception of punch list
items, of the Improvements in accordance with the Plans and Specifications;
provided, however, Tenant shall complete said inspection within fifteen (15)
days of notice by Landlord to Tenant that the Improvements are ready for
inspection. In the event Tenant fails to inspect within said fifteen-day
(15-day) period, then the right of inspection shall be deemed waived.
(e) Landlord shall obtain from each governmental authority having
jurisdiction over the Improvements the Permits necessary to construct, operate
and lawfully occupy the Improvements.
(f) Within sixty (60) days after to the Commencement Date, Landlord
shall discharge or bond over or escrow funds sufficient to satisfy any liens
filed by a contractor, subcontractor, materialman or laborer on the Building or
Premises.
(g) Landlord shall permit Tenant and its duly authorized agents free
access to the Land and Improvements, provided that Tenant shall not interfere
with the construction of the Improvements, and such access shall be at Tenant's
sole risk and expense. Landlord shall promptly respond to any inquiry from
Tenant for information with respect to the construction of the Improvements.
(h) If Tenant shall give Landlord notice of a defect in the Improvements
or of a departure from the Construction Documents not approved by Tenant, in
accordance with Section 3A Landlord shall, within thirty (30) days of receipt of
such notice, take all necessary steps to cure such defect or departure;
provided, however, in the event such defect or default cannot be cured within
such thirty-day (30-day) period, then the requirements of this paragraph shall
be satisfied if Landlord is diligently and continuously pursuing the cure of
said defect or departure. Further, in the event Landlord should disagree as to
such characterization of such
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defect or departure, then said dispute shall be resolved under Section 26,
Arbitration, of this Lease.
(i) Landlord shall deliver to Tenant within thirty (30) days after the
Commencement Date the following:
(a) two sets of final as-built plans and specifications; and
(b) a current as-built survey prepared by a surveyor licensed to
practice in the State of Oklahoma to the standard of the "Minimum Standard
Detail Requirements For Land Title Surveys" jointly established and adopted by
ALTA and ACSM in 1962, and with certifications satisfactory to Tenant, showing
the completed Improvements and all easements or other conditions serving or
affecting the Building, Land or Appurtenances.
3. Preparation for Occupancy
(a) On the Commencement Date, Landlord shall deliver possession of the
Premises to Tenant completed in accordance with Tenant's Construction Documents
(as defined and more particularly described in Exhibit C), except for minor
punchlist items which do not interfere with Tenant's use of the Premises, if
any. Tenant shall within thirty (30) days after the date Tenant takes occupancy,
deliver to Landlord a punchlist of any reasonably discoverable items that are
incomplete or defective in the Premises that were required to be installed or
constructed by Landlord, and Landlord shall diligently proceed to repair,
replace or correct all of said items within thirty (30) days after receipt of
the punchlist (except that if any item cannot be repaired, replaced or corrected
within said thirty (30) day period, this period shall be extended for a
reasonable additional time, provided that Landlord commences to repair, replace
or correct such item within said thirty (30) day period and proceeds diligently
thereafter to effect such repair, replacement or correction).
(b) Landlord shall, without charge, permit Tenant access to the Premises
not less than thirty (30) days prior to the Commencement Date for Tenant's
activities related to preparation of the Premises for occupancy including the
installation of furniture systems and other personal property of Tenant. Such
access shall be at Tenant's sole risk and expense and shall not interfere with
Landlord's construction.
(c) Landlord shall, without charge, permit telephone company employees
access to Tenant's telephone equipment room.
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(d) Landlord shall make available to the Premises at least thirty (30)
days prior to the Commencement Date all electricity and other utilities
necessary to prepare the Premises for occupancy. Tenant shall pay Landlord for
the actual costs of such electricity and of such other utilities based on
Landlord's reasonable estimate within thirty (30) days of the receipt by Tenant
of an invoice therefor.
(e) Tenant shall coordinate the access to the Premises with Landlord's
project manager, Gary Brooks, Beffort-Brooks-Malherbe Property Company,
Corporate Tower, 101 North Robinson, Suite 700, Oklahoma City, OK 73102, phone
405/236-2122, and fax 405/235-1328.
4. Rent
(a) Tenant shall pay an annual Fixed Rent, in equal monthly installments
in advance on the first day of each calendar month during the Term, in
accordance with the following schedule:
Lease Annual Fixed Monthly Annual Rental
Period Rent Installment Rate
- ----------- ------------ ----------- --------------
Years 1-5 $505,654.20 $42,137.85 $14.10
Years 6-10 $550,481.70 $45,873.48 $15.35
(b) All rent and other charges not paid within ten (10) days of the
date(s) when due shall bear interest at the rate of one and one-half percent
(1.5%) (the "Default Interest Rate") per month from and after the first (1st)
day following the date(s) said rent and charges become due and the same shall be
regarded as additional rent hereunder. Additionally, in the event any rent is
not paid on or before the tenth (10th) day after the same shall be due and if
Landlord elects to accept such Rent, in addition to the Rent and the interest
set forth herein, Tenant shall pay to Landlord late charges for such late
payment in the amount of $1,000.00 for each payment so delinquent more than ten
(10) days after written notice.
5. Maintenance and Repairs
(a) Landlord covenants that the Premises, Building and Appurtenances
(including plumbing, electrical lines and equipment, lighting, heating,
ventilating and air conditioning systems) shall be in first-class operating
condition on the Commencement Date.
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(b) Tenant shall conduct its operations in such a manner as to keep the
Premises in good order, condition and repair, (ordinary wear and tear excepted)
and to keep the Premises in a clean, sanitary and safe condition in accordance
with all Applicable Laws governing the use of the Premises by Tenant. Tenant
shall not knowingly permit any waste or nuisance upon or damage or injury to the
Premises or utilities supplied thereto. Tenant agrees that Tenant shall commit
no act which will cause either Tenant or Landlord to be in violation of any
pertinent laws of the State of Oklahoma the County of Oklahoma or any ordinances
of the City of Oklahoma City. Landlord at its expense, subject to the provisions
of Rider 1, shall perform such maintenance, repairs and replacements, structural
or otherwise, as are necessary to keep in good order and repair the
Appurtenances and the exterior of the Building, including the roof and all
Landlord's equipment, and shall also make any repairs or replacements to
Tenant's trade fixtures, installations or other property occasioned by negligent
act or omission of Landlord, its agents, employees or contractors. Subject to
the provisions of Sections 9 and 10 hereof, with the exception of Tenant's right
to terminate the Lease or abate rent, Landlord, at Tenant's expense, shall make
any repairs or replacements to the Building and Appurtenances occasioned by the
negligent act or omission of Tenant, its agents, employees or contractors.
Landlord's maintenance and repairs shall keep the Premises, the Appurtenances
and Building in at least its original condition, reasonable wear and tear
excepted, and all replacement installations shall be at least equal in quality
to the originals. In performing such maintenance, repairs and replacements
Landlord shall use reasonable efforts to minimize any disruption of or
interference with Tenant's business or access to the Premises.
(c) (i)Landlord shall comply with all lawful rules, regulations, orders,
laws, ordinances and legal requirements (including the Occupational Safety and
Health Act, as amended and the Americans With Disabilities Act) and standards
issued thereunder by any governmental authority or fire rating organization
which affect the Premises, Appurtenances, Land, Building, equipment and
improvements or that require repairs, alterations, changes or additions thereto,
including structural repairs, alterations, changes or additions. All boilers and
other pressure vessel equipment, if any, shall be constructed and maintained by
Landlord in accordance with current ASME Standards and Code. Landlord shall use
best efforts to minimize routine inspections, repairs and maintenance during
"Holiday Season."
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(ii) (A) Landlord represents and warrants to the best of its knowledge,
that there is no Hazardous Material on or under the property as of the
Commencement Date of this Lease. "Hazardous Material" shall mean: (1) asbestos
or asbestos containing material, (2) polychlorinated biphenyls in concentrations
greater than 50 parts per million and (3) any other material, waste or
substance, whether solid, gaseous or liquid, which may pose a hazard to human
health or the environment (a) hazardous substance, waste identified in
accordance with Section 3001 of the Federal Resource Conservation and Recovery
Act of 1976, as amended, and (b) any hazardous substance, waste, or material
identified by statute or regulation of any governmental authority regulating
environmental or health matters but excluding those materials or substances
which are ordinarily and customarily used in business such as toner and cleaning
supplies to the extent they are lawfully and actually used in quantities
consistent with such custom.
(B) Landlord further warrants and covenants that during construction of
the Building such procedures as are legally required to prevent the installation
or use of any Hazardous Material in or on the Property were instituted and
maintained and Landlord shall maintain such procedures throughout the Term. If
any Hazardous Material is discovered in or on the Building during the Term,
which was defined by any governmental authority regulating environmental or
health matters as a Hazardous Material as of the Commencement Date, Landlord
shall, at its sole cost and expense, completely remove all of such Hazardous
Material strictly in accordance with and as required by all Applicable Laws
within thirty (30) days after Landlord is notified of such discovery at no cost
to Tenant unless such Hazardous Materials are brought onto the Property by
Tenant, in which case Tenant shall be responsible for their removal. If
applicable laws do not require the removal of a Hazardous Material, then
Landlord shall institute a maintenance and operation plan implementing
procedures necessary to protect the health, safety and well being of Tenant's
employees, guests and invitees and such other procedures as are required by
Applicable Laws. If the removal of such Hazardous Material cannot be completed
within said thirty (30) day period, this period shall be extended for a
reasonable additional time, provided the removal has been commenced within
thirty (30) days after notice of discovery and proceeds diligently thereafter to
effect such removal; provided however, that if either the presence or removal of
any Hazardous Material will prevent Tenant from carrying on its normal business
operations for a period of more than sixty (60) days, then
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Tenant may terminate this Lease upon sixty (60) days notice to Landlord. If a
Hazardous Material is discovered in or on the Building, Premises or
Appurtenances during the Term but such Hazardous Material was not defined as
hazardous material by the Commencement Date, then Landlord shall not be
obligated to remove such Hazardous Material at the time of discovery if removal
is not required by the laws but shall be obligated to handle (including
maintain, use, store, repair, preserve and including removal, if removal is
required by the Applicable Laws at a later date) such Hazardous Material all in
accordance with all Applicable Laws. The Rent shall abate equitably based on the
practical nonavailability of any portion of the Premises for the purposes
permitted by this Lease due to the presence or removal of the Hazardous
Material. Upon discovery of Hazardous Material in the Building, Premises or
Appurtenances, Landlord shall promptly deliver notice of the same to Tenant
together with a statement prepared by a reputable environmental consultant or
engineer setting forth the status of the Hazardous Material, the plan and
procedure for handling the same, including removal if required and the time
frame for such plans and procedures.
(C) Landlord shall indemnify, defend Tenant and hold it harmless against
any claims, damages, losses or liabilities (including reasonable attorneys'
fees) incurred by Tenant and arising from any breach of the foregoing
representation and warranty and from the installation, presence or removal of
the Hazardous Material; provided however, the foregoing indemnity shall not
apply to Hazardous Material so determined after installation in or on the
Property, except insofar as any claims, damages, losses or liabilities
(including reasonable attorneys' fees) arise from the actions in connection with
the removal or remediation thereof.
(D) Tenant agrees that it will not place, hold or dispose of any
Hazardous Materials on, under or at the Premises, the Building or the Land and
that it will not knowingly use the Premises or any other portion of the Building
or the Land as a treatment, storage or disposal site (whether permanent or
temporary) for any Hazardous Materials. Tenant further agrees that it will not
cause or allow any asbestos or other Hazardous Materials to be incorporated into
any improvements or alterations which it makes to the Premises. Tenant shall
indemnify, defend Landlord and hold it harmless against any claims, damages,
losses or liabilities (including reasonable attorneys' fees) incurred by
Landlord and arising from any breach of the foregoing agreement, representation
and warranty; provided however, the foregoing indemnity shall not apply to
Hazardous Material so determined after the Commencement Date or
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after installation in or on the Property, except insofar as any claims, damages,
losses or liabilities (including reasonable attorneys' fees) arise from the
actions in connection with the removal or remediation thereof.
6. Services
Landlord shall furnish to Tenant the following services and facilities:
(i) Access to the Premises 24 hours a day, 7 days a week, with entry to
the Building after normal business hours.
(ii) Removal of ice, snow and debris from all exterior Appurtenances as
may be reasonable under the circumstances.
(iii) On-Site parking properly marked and illuminated to accommodate at
least seven (7) parking spaces for each 1,000 rentable square feet in the
Premises for Tenant's use on an unreserved basis at no cost to Tenant. Landlord
shall provide an additional parking area available for the non-exclusive use of
Tenant immediately adjacent to Tenant's exclusive parking area as shown on the
attached site plan marked "Overflow Parking," at no cost to Tenant. The Overflow
Parking area and Tenant's exclusive parking area combined shall provide a
minimum of thirteen (13) parking spaces per 1,000 square feet of building.
7. Alterations and Improvements
(a) Tenant at its own expense may, without Landlord's prior written
consent, redecorate the Premises (including repainting, adding, replacing or
removing wallcovering, and refinishing millwork) and may, with Landlord's
consent and subject to Landlord's reasonable conditions, make from time to time
such nonstructural and nonpermanent alterations including floorcovering,
additions and improvements in and to the Premises as it may deem necessary or
desirable. Landlord shall cooperate with Tenant in securing any necessary
building and other permits, the cost thereof being borne by Tenant.
Notwithstanding the foregoing, Landlord may choose to make such structural
alterations, improvements or additions as Tenant may request and, upon
completion of the work, (which shall include a reasonable construction
management fee), Tenant shall pay Landlord within thirty (30) days of demand the
cost therefor; provided, however, that Landlord shall, prior to commencing such
work, submit a bid to Tenant for such work and, if so requested by Tenant, two
(2) additional bids from other reputable contractors selected by Landlord.
Landlord and Tenant shall then mutually select the contractor. In addition to
the foregoing, Landlord may elect to use its contractors for electrical,
mechanical, plumbing
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and sprinkler work, provided, however, that the cost to Tenant for such work
shall not exceed the lowest bid submitted by a qualified and responsible bidder,
which shall include a reasonable construction management fee.
(b) Tenant may, at is option, remove from the Premises any furniture,
furnishings, trade fixtures, business equipment or other personal property which
are not permanently affixed in the Premises and were installed by Tenant at its
expense. Tenant at its expense shall repair any damage caused by such removal to
the reasonable satisfaction of Landlord.
(c) Landlord's consent to such alterations, additions, or improvements,
or Landlord's approval of the plans, specifications, and working drawings for
such alterations, additions, or improvements shall create no responsibility or
liability on the part of Landlord for their completeness, design sufficiency, or
compliance with all Applicable Laws. Tenant shall bear the cost of compliance
with the Americans with Disabilities Act of 1990 and all regulations issued
thereunder or revisions or amendments caused by and arising out of Tenant's
alterations, additions, or improvements, made after the Commencement Date.
8. Inspection
Landlord shall, upon forty-eight (48) hours advance notice to Tenant
(except in an emergency), have the right at all reasonable times to inspect the
Premises and show the same to prospective mortgagees, purchasers and government
employees in their official capacity and at all times to make repairs or
replacements as required by this Lease; provided, however, that Landlord shall
use reasonable efforts not to disturb Tenant's use and occupancy of the
Premises.
9. Casualty
(a) If the Building or the Premises are damaged by fire or any other
casualty, Landlord shall deliver to Tenant notice of, together with a statement
prepared by a reputable contractor setting forth the contractor's estimate of,
the time required to repair the damage (the "Repair Period") within sixty (60)
days after the date of the damage. For purposes of determining the Repair
Period, it shall be deemed to commence on the date of the damage. If the
reasonably estimated cost to repair such damage exceeds fifty (50%) percent of
the replacement cost of the Building, Landlord may terminate this Lease by
giving notice to Tenant. If the Repair Period is determined to be longer than
one hundred eighty (180) days or if Landlord fails to deliver such statement
within sixty (60) days, after the date of the damage, and Tenant determines in
its
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reasonable business judgment that such damage will prevent Tenant from carrying
on its normal business operations for a period of one hundred eighty (180) days
or more, Tenant may elect to terminate this Lease by giving notice to Landlord.
Upon such termination, Tenants shall be afforded a reasonable amount of time and
reasonable opportunity to remove its personality from the Premises, and Tenant's
obligations hereunder, including the obligation to pay the Rent, shall cease as
of the date of termination, provided however, that the Rent shall abate
equitably from the date of the damage. If Tenant is unable to use the Premises
due to the acts or omission of Landlord, then rent shall abate.
(b) If Tenant shall not terminate this Lease: (i) the Rent shall abate
for the period the Premises are untenantable, and thereafter, Tenant shall pay
the Rent for only such portion of the Premises which Tenant in its reasonable
business judgment determines it may occupy; and (ii) all repairs necessary to
restore the Building, the Premises, and the Appurtenances to their original
condition shall be: (A) commenced within sixty (60) days after the occurrence of
such damage; (B) performed in a diligent and workmanlike manner within the time
period estimated by Landlord's contractor with material of at least similar or
equivalent quality as that originally utilized in the construction of the
Building, the Premises, and the Appurtenances; (C) completed by Landlord at its
expense using reasonable efforts to minimize any interference with Tenant's
normal business operations.
(c) If Landlord undertakes but fails to repair and restore the Building,
the Premises, and the Appurtenances as required by this Section 9 within the
time period estimated by Landlord's contractor (which time period shall be
extended one day for each day of delay due to Tenant), Tenant may terminate this
Lease upon thirty (30) days notice to Landlord, provided further, however, that
if Landlord is prevented from completing the repair and restoration within said
period due to causes beyond Landlord's control, including labor disputes, civil
commotion, hostilities, sabotage, weather delays, governmental regulations or
controls (collectively, "Force Majeure Events"), Landlord shall have an
additional period of sixty (60) days to repair or restore. Anything in the
foregoing which may be to the contrary notwithstanding, Force Majeure Events
shall not include shortage of funds (whether due to the insufficiency of
insurance proceeds or otherwise), nor inability to obtain financing nor
inability to obtain materials, labor or services due to Landlord's failure to
provide for such matters in a timely manner. Upon such termination, Tenant's
obligations hereunder, including the obligation to pay the Rent, shall cease as
of the
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expiration of such notice period. Rent shall be apportioned as of the
date of the damage and all prepaid Rent shall be repaid to Tenant.
(d) Anything in the foregoing to the contrary notwithstanding, if the
damage by fire or other casualty occurs within the last year of the Term (as may
be extended by the provisions of this Lease), then if the Repair Period is such
that the balance of the Term after such Repair Period is less than one hundred
eighty (180) days, then either Landlord or Tenant may elect to terminate this
Lease by giving notice to the other, except that Tenant may nullify Landlord's
election by exercising an available option to extend the term of this Lease
within thirty (30) days of Landlord's notice to terminate. Upon such
termination, Tenant shall be afforded a reasonable amount of time and reasonable
opportunity to remove its personality from the Premises, and Tenant's
obligations hereunder, including the obligation to pay the Rent, shall cease as
of the date of termination, provided however, that the Rent shall abate
equitably from the date of the damage.
10. Insurance and Indemnity
(a) Landlord shall, from and after the date hereof, maintain insurance
policies covering the Building, (including Rental Interruption coverage) the
Appurtenances and anything that is, or by operation of this Lease becomes
Landlord's property against loss, damage, or destruction caused by boiler
explosion or machinery breakdown, fire and the perils specified in the standard
extended coverage endorsement, by vandalism and malicious mischief, and by
sprinkler, gas, water, steam, glass breakage and sewer leakage, and shall also
maintain when appropriate builder's risk insurance. Fire and extended coverage
shall equal full replacement cost (valued at the full replacement cost without
deduction for depreciation) of the Building, the Appurtenances and Landlord's
property, exclusive of architectural and engineering fees, excavation, footings
and foundations, but in any event sufficient to prevent application of any
coinsurance provision, and shall include an inflation guard endorsement. Such
policies shall provide for a deductible not greater than $25,000.00 from any
loss and providing Tenant thirty (30) days notice of cancellation. Landlord
shall provide Tenant with certificates evidencing all insurance required
hereunder upon request.
(b) Landlord shall, from and after the date hereof, maintain commercial
general liability insurance policies covering Landlord's liability for all
claims or losses resulting from any injury
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on the Land or Building to property or persons or related thereto in a single
limit of not less than $1,000,000.
(c) At all times during the Term, Tenant will carry and maintain, at
Tenant's expense, the following insurance, in the amounts specified below, with
insurance companies reasonably satisfactory to Landlord:
(i) commercial general liability insurance and personal injury
liability insurance, with a combined single occurrence limit of not less than
$3,000,000.
(ii) insurance covering all of Tenant's equipment, trade
fixtures, appliances, furniture, furnishings, and other personal property from
time to time in, on or upon the Premises, in an amount not less than the full
replacement cost without deduction for depreciation from time to time during the
Term, providing protection against all perils included within the classification
of fire, extended coverage, vandalism, malicious mischief, special extended
peril (all risk), boiler, flood, and sprinkler leakage.
(iii) Business interruption insurance in such amounts as will
reimburse Tenant for direct or indirect loss of earnings attributable to all
perils commonly insured against by prudent tenants or assumed by Tenant pursuant
to this Lease.
(iv) automobile insurance covering owned, non-owned and hired
vehicles in an amount not less than $1,000,000.00 combined single limit.
(d) All policies of insurance which Tenant is obligated to maintain
according to this Lease (other than any policy of workman's compensation
insurance) will name Landlord and Landlord's lenders of which Landlord shall
notify Tenant from time to time, as additional insureds, but only as their
interest may appear. Certificates of Insurance which evidence Tenant's insurance
and evidence of the payment of all premiums of such policies will be delivered
to Landlord prior to Tenant's occupancy of the Premises and from time to time at
Landlord's request made not more often than once per Lease Year. All such
policies maintained by Tenant will provide that they may not be terminated or
amended except after 30 day's prior notice to Landlord. All commercial general
liability, and personal property maintained by Tenant will be written as primary
policies, not contributing with and supplemental to the coverage that Landlord
may carry. Insurance required to be maintained by Tenant under subsections (c)
(i) hereof may be subject to a deductible of up to $100,000.00.
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(e) Landlord and Tenant each waive any and all rights to recover against
the other, or against the officers, directors, shareholders, members, partners,
joint venturers, employees, agents, for any loss or damage to such waiving party
arising from perils covered by property insurance and required to be carried by
such party to the extent of the limits of such policy. Landlord and Tenant shall
cause their respective insurers to issue appropriate waivers of subrogation
rights endorsements to all such property policies of insurance. Tenant agrees to
cause all other occupants of the Premises by, under or through Tenant to execute
and deliver to Landlord such a waiver of subrogation rights endorsement.
(f) Tenant shall not do anything in or about the Premises which would
cause an increase in the insurance rates above the rate in effect for Tenant's
lawful use of the Premises as general office use for any policies of insurance
carried by Landlord covering the Building or the Premises. If, as the result of
any failure by Tenant to comply with the terms of this Section 10(f), the
insurance rates applicable to any policy of insurance carried by Landlord
covering the Building or the Premises shall be increased, Tenant agrees to pay
Landlord, as additional rent, within 30 days after Landlord's demand therefor,
the increment in cost of the premiums for such insurance above the cost which
Landlord would have paid absent Tenant's actions due solely to Tenant's actions.
This additional rent shall be computed exclusive of the computation in Rider 1,
and the liability hereunder, shall accrue notwithstanding Rider 1. A schedule or
rule book issued by the Insurance Services Office, Inc. or any other comparable
insurance rating organization, or the rating procedures or rules of Landlord's
insurance companies shall be evidence of any items and charges which make up the
insurance rates and premiums for the Premises and the Building. Landlord agrees
that Tenant's use of the Premises for the uses set forth in this Lease shall not
subject Tenant to any obligation for payment of increased insurance rates
pursuant to this Section.
(g) Tenant indemnifies and agrees to defend and hold harmless Landlord
and its agents, licensees, employees and contractors from all claims or losses
(other than those for which liability is waived by express provision in this
Lease) resulting from any injury in or upon the Land or Building to property or
persons due to any negligence or intentional or willful acts or omissions of
Tenant, its agents, licensees, employees or contractors, including, without
limitation, reasonable attorneys' fees and costs. Landlord indemnifies and
agrees to defend and hold harmless Tenant and its agents, licensees, employees
and contractors from all claims and
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losses (other than those for which liability is waived by express provision in
this Lease) resulting from any injury in or upon the Land or the Building to
property or persons due to any negligence intentional or willful acts or
omissions of Landlord, its agents, licensees, employees or contractors,
including, without limitation, reasonable attorneys' fees and costs. Neither
party's indemnification of the other party as provided in this Section 10 shall
be applicable with respect to claims resulting in whole or in part from the
willful acts or omissions or the breach of this Lease by the other party, or
acts or omissions for which a party is strictly liable, nor shall either party
in any event be liable to the other for indirect or consequential damages.
11. Condemnation
(a) If all of the Land, the Building, the Premises or the, Parking Area,
Appurtenances shall be condemned for public use, whether such use be temporary
or otherwise, or damaged by any public use, including damage resulting from the
alteration of the location or grade of any street or public way, or voluntarily
transferred to a public or quasi-public body in lieu of condemnation (any of
which occurrences is hereafter referred to as a "taking"), this Lease shall
terminate as of the date of taking and the Rent shall be adjusted to the date of
termination. If a portion of the Building, the Premises or the Appurtenances
shall be taken, and if Tenant determines, in its reasonable business judgment,
that the taking will prevent Tenant from carrying on its normal business
operations for a period of ninety (90) days or more, Tenant may elect to
terminate this Lease by giving notice to Landlord. Upon such termination,
Tenant's obligations hereunder, including the obligation to pay the Rent, shall
cease as of the date of taking.
(b) If Tenant shall not terminate this Lease: (i) the Rent shall abate
for the period the Premises are untenantable, and, thereafter, Tenant shall pay
the Rent for only such portion of the Premises which Tenant, in its reasonable
business judgment, determines it may occupy; and, (ii) all repairs necessary to
restore the Building, the Premises and the Appurtenances as nearly as possible
to their original condition shall be : (A) commenced within sixty (60) days
after the actual taking; (B) performed in a reasonably diligent and workmanlike
manner with material of at least similar or equivalent quality as that
originally utilized in the construction of the Building, the Premises and the
Appurtenances; and, (C) completed by Landlord at its expense using reasonable
efforts to minimize any interference with Tenant's normal business operations.
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(c) If Landlord undertakes but fails to repair and restore the Building,
the Premises, and the Appurtenances as required by this Section 11 within one
hundred eighty (180) days from the date of the taking (which 180-day period
shall be extended one day for each day of delay due to Tenant), and if Tenant
determines, in its reasonable business judgment, that such failure will prevent
Tenant from carrying on its normal business operations for a period of one
hundred eighty (180) days or more from the date of the taking, then Tenant may
terminate this Lease upon thirty (30) days notice to Landlord. Upon such
termination, Tenant's obligations hereunder, including the obligation to pay the
Rent, shall cease as of the expiration of such notice period. Rent shall be
apportioned as of the date of the taking and all prepaid Rent shall be repaid to
Tenant.
(d) Tenant shall not be entitled to any portion of Landlord's award or
settlement resulting from the taking of its fee interest, provided that nothing
contained herein shall be construed in any way to restrict or limit Tenant from
asserting a claim for any damages resulting from the taking of its leasehold or
any moving expenses, or otherwise permitted by law.
12. Default
(a) If Tenant shall default in the payment of the Rent and additional
rent and such default shall continue for ten (10) days after notice therefor
from Landlord or if Tenant shall default in the performance of any of its other
obligations under this Lease and such default shall continue for thirty (30)
days after notice from Landlord specifying Tenant's default (except that if such
default cannot be cured within said thirty (30) day period, this period shall be
extended for a reasonable additional time, provided that Tenant commences to
cure such default within the thirty-day (30 day) period and proceeds diligently
thereafter to effect such cure) or if Tenant shall be adjudged bankrupt or shall
make an assignment for the benefit of creditors, or if a receiver of any
property of Tenant in or upon the Premises shall be appointed in any action,
suit or proceeding by or against Tenant and is not removed within thirty (30)
days after appointment, then, in addition to any other remedies available to
Landlord at law or in equity, Landlord shall have the immediate option to
terminate this Lease and all rights of Tenant hereunder by giving Tenant notice
of such election to terminate. In the event that Landlord shall elect to so
terminate this Lease, then Landlord may recover from Tenant:
(i) The worth at the time of award of any unpaid Rent which had
been earned at the time of such termination; plus
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(ii) The worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss Tenant proves could have been
reasonably avoided; plus
(iii) The worth at the time of award of the amount by which the
unpaid Rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably avoided; plus
(iv) At Landlord's election, such other amounts in addition to or
in lieu of the foregoing necessary to compensate Landlord for all detriment
caused by Tenant's failure to perform its obligations under the Lease or which
in the ordinary course of things would be likely to result therefrom, including,
but not limited to, costs to repair, remodel, and relet Premises. (Such as
brokerage fees, legal fees, etc.)
Landlord shall use reasonable efforts to mitigate its damages in the
event of Tenant's default.
As used in subparagraphs (i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the Default Interest Rate. As used in
subparagraph (iii) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of
Kansas City at the time of award plus one percent (1%) (the "Discount Rate").
(b) If Landlord shall default in the performance of any of its
obligations, agreements or covenants under this Lease, and such default shall
continue for thirty (30) days after written notice from Tenant specifying
Landlord's default (except that if such default cannot be cured within said
thirty (30) day period, this period shall be extended for a reasonable
additional time, provided that Landlord commences to cure such default within
the thirty (30) day period and proceeds diligently thereafter to effect such
cure), then, in addition to other remedies available to Tenant at law or in
equity, Tenant may, without prejudice to any of its other rights under this
Lease or without waiving any claim for damages for such breach: (1) withhold
payment of the Rent due and to accrue hereunder (to the extent necessary to
cover the costs reasonably estimated by Tenant to cure such default) so long as
Landlord remains in default, subject to the arbitration provisions in Section 26
if Landlord disputes such default or the cost to cure such default; (2) proceed
judicially or otherwise, either at law or in equity, to enforce any rights and
remedies which Tenant may have under this Lease or at law; or (3) to cure such
default for the account of Landlord and any amount paid or any contractual
liability incurred by Tenant in so doing may
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be, subject to the arbitration provisions of Section 26 if Landlord disputes
such default or the cost to cure such default, deducted by Tenant from the next
or any succeeding payment of the Rent due hereunder. Tenant shall act reasonably
in curing such default and in incurring costs to effect such cure. Tenant may
correct such default prior to the expiration of the thirty (30) day period upon
giving notice to Landlord that the curing of such default prior to the
expiration of such will materially interfere with Tenant's operations in the
Building.
13. Holdover
Any holding over after the expiration of the Term or extensions thereof,
shall be deemed and construed to be a tenancy from month to month and shall not
be construed to be a renewal and extension of the Lease, and shall otherwise be
on the terms and conditions herein specified so far as applicable. The Fixed
Rent payable during the holding over shall be equal to one hundred fifty (150%)
of the Fixed Rent paid for the last full month of the Term. In addition, the
Tenant shall hold the Landlord harmless from any and all actual damages to new
tenant resulting from Tenant's holdover.
14. Assignment and Subletting
Tenant may assign this Lease or sublet the Premises in whole or in part
at any time during the Term with the prior written consent of Landlord given in
accordance with Section 22, Notices, of this Lease which consent shall not be
unreasonably withheld or delayed. In such event, Tenant shall notify Landlord
thereof and shall remain primarily liable for the faithful performance of all of
the covenants, terms and conditions hereof on Tenant's part to be performed.
Landlord agrees that if Tenant assigns this Lease and the assignee defaults and
fails to cure such default within the applicable grace period, Tenant shall have
the right to recover possession of the Premises by curing the assignee's default
within a reasonable time. Notwithstanding the foregoing, Tenant may, without
Landlord's consent, assign or sublet the Premises to any company controlled by,
in control of, or under common control with Tenant or to a transferree by reason
of the merger, consolidation or sale of substantially all the assets of Tenant.
In such event, Tenant shall notify Landlord thereof and shall remain responsible
for the faithful performance of all of the covenants, terms and conditions
hereof on Tenant's part to be performed. In the event Tenant assigns or sublets
the Premises with Landlord's consent to other than a company controlled by, in
control of, or under common control with Tenant, Tenant shall pay to Landlord
fifty percent (50%) of any rent or additional rent received by Tenant in excess
of the Fixed Rent, additional
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rent, costs of subletting or assigning this Lease (amortized with interest at
the Prime Rate as published from time to time in the Wall Street Journal) or any
other sum payable under this Lease (the "Excess Rent").
15. Quiet Enjoyment
So long as Tenant is not in default beyond the applicable grace periods
in the payment of the Rent or in the performance of any other covenant or
agreement herein contained, Landlord covenants that Tenant may peaceably and
quietly have, hold, occupy and enjoy the Premises.
16. Subordination
Tenant agrees that this Lease and its interest in the Premises may, at
Landlord's option, be made subordinate to any mortgages or underlying leases now
or hereafter covering the Premises, provided, however, that such subordination
shall be contingent upon Tenant's receipt of a non-disturbance agreement in form
reasonably acceptable to it, providing that so long as Tenant shall not be in
default under the Lease beyond the applicable grace periods, Tenant shall not be
disturbed in its occupancy of the Premises and this Lease shall continue in full
force and effect. The form of the Non-Disturbance Agreement shall be
substantially the same as the attached Exhibit E.
17. Rules and Regulations
Tenant shall abide by and observe the rules and regulations attached
hereto as Exhibit D, as well as such other reasonable rules and regulations as
may be promulgated from time to time by Landlord, provided the same are not
inconsistent with the provisions of this Lease, and apply uniformly to all
tenants and occupants of the Building, and provided further that a copy thereof
is received by Tenant.
18. Estoppel Certificate
Tenant shall, at any time and from time to time, upon not less than
fifteen (15) business days prior notice from Landlord, deliver to Landlord a
statement in writing (a) certifying that this Lease is unmodified and to
Tenant's knowledge, in full force and effect (or if there have been
modifications, that this Lease is in full force and effect as modified and
stating the modifications); (b) stating the dates to which the Rent has been
paid by Tenant; (c) stating whether or not Tenant has knowledge that Landlord is
in default in the performance of any covenant, agreement or condition contained
in this Lease, and, if Tenant has knowledge of such a default, specifying each
such default; (d) stating the address to which notices to Tenant shall be
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sent and (e) such other statements of facts as shall be reasonably required
concerning this Lease or Tenant's tenancy hereunder, which statement shall be to
the best of Tenant's knowledge. Landlord shall, at any time and from time to
time upon not less than fifteen (15) business days prior notice from Tenant,
deliver to Tenant an estoppel certificate, in substance and form similar to that
described above, relative to the status of this Lease and any ground lease,
underlying lease or mortgage encumbering the Building or Land.
19. Signage; Change of Name
Tenant shall not place or cause to be placed on the outside of the
Building, inside the common areas of the Building, or on the Land, any signs,
notices or other media of advertising, unless approved by Landlord.
20. Mechanics' Liens
Tenant shall discharge by payment, bond or otherwise, mechanics' liens
filed against the Building for work, labor, services or materials claimed to
have been performed at or furnished to the Premises for or on behalf of Tenant,
except when the mechanics' liens are filed by a contractor, subcontractor,
materialman or laborer of Landlord, in which event Landlord shall discharge the
liens by payment, bond or otherwise. If, however, Tenant notifies Landlord in
writing that Tenant refuses to pay any such claim and desires to contest the
same, unless required by notice to Tenant from the holder of a first mortgage on
the Building, Tenant shall not be required to discharge such lien but shall
diligently prosecute the contest thereof to final judgment and decision, and
shall pay any judgment that may be rendered on account thereof, and shall cause
said property to be freed and discharged from any lien or charge adjudged
against the same; provided, however, in no event shall the time to discharge
settlement extend beyond the Term or extensions as provided herein.
21. Extension
(a) Provided that Tenant is not in default of any of the terms and
conditions of this Lease beyond any applicable grace period, Tenant may extend
the Original "Term for up to two (2) periods of five (5) years each upon the
same terms and conditions contained herein, except for the Fixed Rent specified
below, by giving notice to Landlord of its intention to extend at least six (6)
months prior to the Expiration Date, and thereupon the Term and the Expiration
Date shall be so extended without any further action by either party. The Fixed
Rent for Option Period One (1) shall be Sixteen and 60/100 dollars ($16.60) per
rentable square foot per annum; for
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Option Period Two (2) shall be Seventeen and 85/100 dollars ($17.85) per
rentable square foot per annum.
22. Notices
All notices, demands or other communications (notices) permitted or
required to be given hereunder shall be in writing and, shall be deemed given on
the date of actual receipt. Notices shall be given by certified mail, return
receipt requested or through a national delivery service. Notices shall be
addressed as follows:
(a) if to Landlord, to:
TJM PROPERTIES, L.L.C.
3232 West Britton Road
Suite 250
Oklahoma City, OK 73120
Attention: F. Barry Tapp
Telephone:(405) 752-7522
Facsimile: (405) 749-9924
with a copy to:
Virgil L. Holden
Attorney at Law
P. O. Box 1594
Norman, OK 73070
2321 Westpark Drive
Norman, OK 73069
Telephone: (405) 364-329-9603
Facsimile: (405) 364-2414
and to:
Beffort Brooks Malherbe Property Company
Corporate Tower
101 North Robinson
Suite 700
Oklahoma City, OK 73102
Attention: Gary Brooks
Telephone: (405) 236-2122
Facsimile: (405) 235-1328
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and
(b) if to Tenant, to:
WILLIAMS-SONOMA, INC.
3250 Van Ness Avenue
San Francisco, CA 94109
Attention: Susi Browne
Director, Facilities
3250 Van Ness Avenue
San Francisco, CA 94109
Telephone: 415/616-8659
Facsimile: 415/439-8673
with a copy to:
IRELL MANELLA
Attention: Sandra G. Kanengiser, Esq.
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90057-4276
with a copy sent to Tenant at the Premises.
Landlord and Tenant may from time to time by notice to the other
designate such other place or places for the receipt of future notices. The
inability to deliver because of a changed address of which no notice was given
or rejection or other refusal to accept any notice shall be deemed to be the
receipt of the notice as of the date of such inability to deliver or rejection
or refusal to accept.
Notices may also be given by facsimile ("Business Hours"); provided,
however, the original of a facsimile notice must be sent by overnight courier to
the receiving party on the same day that the facsimile is sent and will not be
deemed received on the date of the facsimile transmission unless the original
notice is received by the other party on the first business day following the
facsimile transmission, and the party sending a facsimile notice shall use its
best efforts to notify the receiving party by telephone during Business Hours on
such date that a facsimile notice has been sent.
23. Miscellaneous
(a) The language of this Lease shall be construed according to its
normal and usual meaning and not strictly for or against either Landlord or
Tenant.
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(b) No remedy or election given by any provision in this Lease shall be
deemed exclusive unless so indicated, but each shall, wherever possible, be
cumulative in addition to all other remedies in law or equity which either party
may have arising out of the default of the other party and failure to cure such
default within the applicable grace period.
(c) Failure of either party to cure a default of the other under this
Lease shall not render such non-defaulting party in any way liable therefor, or
relieve the defaulting party from any of its obligations hereunder.
(d) The acceptance of possession of the Premises by Tenant shall not be
deemed a waiver of any of the obligations under this Lease to be performed by
Landlord under Section 3.
(e) Subject to Landlord's approval, not to be unreasonably withheld,
Tenant may deal with any person, firm or corporation for services, supplies,
materials, labor, equipment, transportation, tools, machinery and any other
similar or dissimilar services or items in connect ion with the alteration,
improvements or maintenance of the Premises.
(f) "Rentable" area, "usable" area and "storage" area when used in this
Lease shall mean an area measured in accordance with ANSI 765.1-1980 as
published by BOMA International.
(g) Upon any termination or expiration of this Lease, Tenant shall
surrender the Premises in the same condition as existed at the Commencement Date
and free of excess debris, except for normal wear and tear and damage caused by
the elements, any casualty required to be insured under Section 9(a), or any
cause beyond Tenant's control. Any of Tenant's personal property not removed the
day following the Expiration Date shall be deemed abandoned. Except a otherwise
provided in this Lease, all improvements, alterations, additions and fixtures,
other than Tenant's personalty, which have been made or installed by either
Landlord or Tenant upon the Premises shall become Landlord's property upon the
installation thereof and shall remain as Landlord's property and shall be
surrendered with the Premises or as a part thereof.
(h) If any clause or provision of this Lease is or becomes illegal,
invalid, or unenforceable because of present or future laws or any rule or
regulation of any governmental body or entity, effective during the Term, the
intention of the parties hereto is that the remaining parts of this Lease shall
not be affected thereby.
(i) As used in this Lease, any list of one (1) or more items preceded by
the word "including" shall not be deemed limited to the stated items but shall
be deemed without limitation.
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(j) This Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective executors, distributees, heirs,
representatives, successors and assigns.
(k) This Lease contains the entire agreement of the parties and may not
be modified except by an agreement in writing signed by both parties.
(l) The captions appearing within the body of this Lease have been
inserted as a matter of convenience and for reference only and in no way define,
limit or enlarge the scope or meaning of this Lease or of any provision hereof.
(m) This Lease has been executed in several counterparts, all of which
constitute one and the same instrument.
(n) Landlord and Tenant shall not unreasonably withhold, delay or
condition any consent or approval which this Lease requires.
(o) The use of the neuter singular pronoun to refer to either party
shall be deemed a proper reference even though it may be an individual,
partnership, corporation or a group of two or more individuals or corporations.
The necessary grammatical changes required to make the provisions of this Lease
apply in the plural number where there is more than one Landlord or Tenant and
to either corporations, associations, partnerships or individuals, males or
females, shall in all instances be assumed as though in each carefully
expressed.
(q) In any action or proceeding which Landlord or Tenant may be required
to prosecute to enforce its respective rights hereunder, the unsuccessful party
agrees to pay all costs incurred by the prevailing party therein, including
reasonable attorneys' fees.
(r) If Landlord should sell or otherwise transfer Landlord's interest in
the Land or Building, or if the same should be sold or transferred by operation
of law or otherwise, Tenant agrees that provided that the transferee shall have
assumed the Landlord's obligation under the Lease Landlord shall thereafter have
no liability to Tenant under this Lease, except for such liability as may have
accrued prior to the date of such sale or transfer.
(s) Nothing contained herein shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of principal and
agent, or of partnership, or of joint venture between the parties hereof, the
sole relationship being that of landlord and tenant.
(t) Tenant's personal property and trade fixtures, if any, shall be
separately listed for assessment purposes and/or for taxation purposes. Tenant
shall promptly pay all taxes levied thereon.
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(u) Nothing in this Lease (express or implied) is intended to or shall
be construed to confer upon or give any person or entity, other than the parties
hereto, any right or remedy under or by reason or this Lease or the
representations or agreements contained herein.
(v) The laws of the State of Oklahoma shall govern the validity,
performance and enforcement of this Lease.
(w) Any assent or waiver, expressed or implied by the Landlord to any
breach by Tenant of any covenant or condition herein contained, shall operate as
assent or waiver only in the specific instance and shall not be construed as an
assent or waiver of any such consent or condition generally or of any subsequent
breach of the covenants and conditions thereof.
24. Brokers
Tenant warrants and represents that it has not dealt with any real
estate broker or agent in connection with this Lease or its negotiation except
Mr. John Yandle, C. B. Commercial, San Jose, California, and Beffort Brooks
Malherbe Property Company. Tenant shall indemnify and hold Landlord harmless
from any cost, expense or liability (including costs of suit and reasonable
attorney's fees) for any compensation, commission or fees claimed by any other
real estate broker or agent in connection with this Lease or its negotiation by
reason of any act of Tenant. Landlord is solely responsible for commission per
Letter of Intent.
25. Attachments
Rider 1, Rider 2, Exhibits A, B, C, D, and E are attached to this Lease
and made a part hereof.
26. Arbitration
Except as specifically provided for herein, if a dispute arises between
Landlord and Tenant relating to this Lease, then the dispute shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association as provided in Section (a) below prior to either party
pursuing other available remedies.
(a) (i) Within ten (10) business days after notice from one party to the
other that a dispute has arisen, Landlord and Tenant shall each appoint a person
as arbitrator from a list of arbitrators provided by the American Arbitration
Association. The arbitrators appointed shall
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jointly appoint a third person and such three arbitrators shall as promptly as
possible resolve the dispute, provided, however, that
(A) if one party fails to appoint an arbitrator within the ten
(10) business day period as aforesaid, the arbitrator appointed by the other
party shall proceed to resolve the dispute and shall render his or her decision
and award in writing within thirty (30) days after the expiration of said 10
business day period; and
(B) if the two arbitrators are appointed by the parties and shall
be unable to agree, within ten (10) days after the appointment of the second of
them, upon the appointment of a third arbitrator, they shall give written notice
to the parties of such failure to agree, and, if the parties fail to agree upon
the selection of such third arbitrator within ten (10) business days after the
arbitrators appointed by the parties give notice as aforesaid, then within five
(5) business days thereafter either of the parties upon notice to the other
party may request such appointment by the American Arbitration Association (or
any successor organization), or in its absence, refusal, failure or inability to
act, may apply to a court having competent jurisdiction for a court appointment
of such arbitrator.
(ii) Each arbitrator shall be a qualified person who shall have had at
least ten (10) years experience in the County of Oklahoma in a calling connected
with the matter of the dispute. In addition to meeting the foregoing
requirements, the third arbitrator shall be impartial.
(iii) The arbitration shall be conducted in Oklahoma City in accordance
with the then prevailing rules of the American Arbitration Association (or any
successor organization) applicable to the subject matter of the particular
dispute. The arbitrators, if more than one, shall render their decision and
award in writing, upon the concurrence of at least two of their number, within
30 days after the appointment of the third arbitrator. Such decision and award
or the decision and award of the single arbitrator as provided above, shall be
final and conclusive on the parties and counterpart copies thereof shall be
delivered to each of the parties. In rendering such decision and award, the
arbitrators shall not add to, subtract from or otherwise modify the provisions
of this Lease. Judgment may be had on the decision and award of the arbitrators
so rendered in any court of competent jurisdiction.
(iv) Each party shall pay the fees and expenses of the one of the two
original arbitrators appointed by or for such party and the fees and expenses of
the third arbitrator and all
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other expenses of the arbitration (other than the
fees and disbursements of attorneys or witnesses for each party) shall be borne
by the parties equally.
IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Lease.
TJM PROPERTIES, L.L.C.
(LANDLORD)
By /s/ F. BARRY TAPP
-----------------------------------------
F. Barry Tapp
-------------------------------------------
(Print Name)
Member Manager
-------------------------------------------
(Title)
WILLIAMS-SONOMA, INC.
(TENANT)
By /s/ PAT CONNOLLY
-----------------------------------------
Pat Connolly
-------------------------------------------
(Print Name)
Executive V.P and General Manager Catalogue
-------------------------------------------
(Title)
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RIDER 1
Attached To And Made Part Of Lease Dated As Of February 13, 1998.
Made Between
TMJ PROPERTIES, L.L.C. (Landlord)
and
WILLIAMS-SONOMA, INC. (Tenant)
Expense Contribution
The Fixed Rent does not anticipate increases in taxes on the Building, the Land
or any improvements situated thereon (together hereinafter referred to as the
"Property") and increases in the cost of managing, maintaining, operating and
repairing the same. Therefore, in order that the Rent payable throughout the
Term shall reflect any such increases, the parties agree as hereinafter in this
Rider set forth.
(a) During the Term, Tenant shall pay Landlord as additional rent any amount
equal to Tenant's proportionate share of the sum of (i) the total real estate
taxes (as hereinafter defined) and (ii) the total operating expenses actually
and reasonably incurred by Landlord during each calendar year during the Term,
in excess of $2.00 times the Rentable area of the Building (such excess
hereinafter referred to as the "Excess Expenses").
(b) Tenant shall, at its expense, be responsible, throughout the Original Term,
and any extensions thereof, for the following:
(i) The costs and expenses for cleaning and janitor service to the
common areas of the Building and the Premises of Tenant, including janitor
equipment and supplies and rubbish removal, in general accordance with the
specifications set forth in this Lease.
(ii) The costs of utilities serving the Premises, Building, Land, and
Appurtenances thereto, and including electricity for interior and exterior
lighting, plugs, outlets, and heating, ventilating and air-conditioning systems
serving the Building, water and sewer charges, and fuel oil, natural gas, and
steam charges, if any, used by the heating, ventilating and air-conditioning
systems serving the Building.
(iii) The costs and expenses of repairing and maintaining the restrooms,
lobbies, hallways and other interior areas of the Premises, the mechanical,
electrical, heating, ventilating
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and air conditioning equipment and plumbing systems servicing the Building, and
the Appurtenances.
(c) Landlord's "Operating expenses" are defined as those direct expenses
actually incurred on an accrual basis to manage, maintain, operate and repair
the Building and the Appurtenances in a manner deemed reasonable and appropriate
and for the best interests of Tenant, including the following:
(i) The costs and expenses of repairing, and maintaining the
non-structural elements of the roof and building exterior.
(ii) The costs and expenses of removing snow, ice and debris from the
exterior appurtenances, the non-capital repairs made to paving, curbing,
walkways, landscaping (including replanting and replacing flowers and other
plantings), and maintaining exterior lighting systems.
(iii) Reasonable management fees not to exceed three and one-half
percent (3 -1/2%) of the base rental income of the Building, and labor costs for
maintenance staff under the grade of building manager, including wages,
salaries, fringe benefits, worker's compensation, disability benefits, social
security, insurance, payroll taxes, unemployment taxes and contributions and
health and welfare benefits.
(iv) Property, casualty and liability insurance, including Rent
Interruption Insurance, required to be carried by Landlord pursuant to the
provisions of this Lease.
(v) Any other reasonable costs necessary to and customarily incurred in
the operation of a Class A office building in the general vicinity of the
Building, including the cost of rental equipment used intermittently for the
repair and maintenance of the Building and the Appurtenances, personal property,
sales and excise taxes, and license and permit fees.
(vi) Upon completion of Building "B" in the Commerce Park Development,
the common area expenses associated with the maintenance of the Overflow Parking
Area and the Expansion Overflow Parking Area shall be shared equitably with the
Commerce Park Development.
Operating expenses shall not include expenses for any capital
improvements or capital items or the replacement of a capital item or of a major
component of a capital item or major repairs to a capital item in lieu of
replacement; the cost of rental equipment used regularly for the repair and
maintenance of the Building that is customarily owned by landlords of Class A
office
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buildings (which, when purchased, would be a capital equipment item);
depreciation; expenses for which Landlord is entitled to be reimbursed or
indemnified (either by an insurer, condemnor, tenant, contractor who is
obligated under any warranty or guaranty, or otherwise); expenses incurred in
leasing or procuring tenants (including lease commissions, advertising expenses
and expenses of renovating space for tenants); legal expenses arising out of the
construction, operation, use, leasing, occupation or maintenance of the Building
or Land or the enforcement of the provisions of any agreements affecting the
Land or the Building; interest or amortization payments on any mortgage or
mortgages, and rental under any ground or underlying lease or leases; wages,
salaries or other compensation paid to any executive employees above the grade
of building manager; wages, salaries or other compensation paid for clerks or
attendants in concessions or newsstands operated by Landlord; expenses in
connection with maintaining and operating any parking facility operated by
Landlord that generates parking fee income; the cost of any work or service
performed for or facilities furnished to a tenant at the tenant's cost; the cost
of correcting defects (latent or otherwise) in the construction of the Building
or in the building equipment, except that conditions (not occasioned by
construction defects) resulting from ordinary wear and tear shall not be deemed
defects; the cost of installing, operating and maintaining a specialty
improvement (unless such specialty improvements results in a cost savings to the
Building and Appurtenances, in which case the cost may be including in operating
expenses but only to the extent of the cost savings) including an observatory or
broadcasting, cafeteria or dining facility or club, or athletic or recreational
club (unless such athletic or recreational club is provided without charge to
all tenants of the Building); and any cost or expense representing an amount
paid to a related or affiliated person or entity which is in excess of the
amount which would reasonably have been paid in the absence of such
relationship, costs of environmental testing, remediation not caused by Tenant;
and reserves.
(d) "Real estate taxes" are defined as all real estate taxes and assessments
(except as hereinafter provided) that are levied or assessed against the
Property or any taxes which shall be levied on the rentals of the Building in
lieu of or in addition to any such real estate taxes. The tax during any
calendar year in respect to which Tenant is obligated to pay its proportionate
share of an increase in real estate taxes shall be subject to adjustment to take
into account the final determination in the event that real estate taxes are
contested. In no event shall Tenant be obligated to pay any interest or
penalties imposed upon Landlord for late payment or otherwise.
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35
(e) Following the end of the calendar year in which the Commencement Date occurs
and each calendar year thereafter during the Term, Landlord shall cause its
actual Excess Expenses for the Building and Land to be certified by an officer
of Landlord, who shall prepare an itemized statement of the operating expenses
for the previous calendar year, together with, following the end of the calendar
year after which the Commencement Date occurs, a computation of the Excess
Expenses and additional rent due, if any, and who shall certify that the
statement fairly and accurately presents the Operating Expenses for such
calendar year, determined in accordance with generally accepted accounting
principles, consistently applied. No later than one hundred twenty (120) days
after the end of each calendar year during the Term (the "Statement Due Date"),
Tenant shall be furnished a copy of the statement, and, within thirty (30) days
after its receipt (except as provided below) Tenant shall pay Landlord the
additional rent specified in the statement. If Tenant has not received a
statement by the end of the calendar year in which the statement is due from
Landlord, it shall be conclusively presumed that Landlord has waived its claim
against Tenant for Tenant's proportionate share of Excess Expenses that would
have been set forth in such statement.
(f) In order to provide for reasonably current payments on account of the Excess
Expenses, Tenant shall pay as additional rent, Landlord's reasonable estimate of
its Proportionate Share of the Excess Expenses in twelve (12) monthly equal
installments, commencing on the first day of the month following the month in
which Tenant receives the notice of such estimate. No new estimate of the Excess
Expenses shall be effective until one year after Tenant's receipt of the
preceding estimate, and Tenant shall pay as additional rent any estimated
increase in such cost commencing on the first day of the month following the
month in which Tenant receives such estimate. Notwithstanding the foregoing, if
Tenant has not received the statement of actual operating expenses by the end of
the calendar year in which the statement is due from Landlord, then Tenant shall
not be obligated to pay any additional rent based on Landlord's estimate of
Excess Expenses until such statement is received. If Tenant's Proportionate
Share of the Excess Expenses for the previous calendar year exceeds the
aggregate of the monthly payments made by Tenant for such year, if any, Tenant
shall within thirty (30) days after the receipt of the statement, tender to
Landlord an amount equal to such excess as additional rent. If such aggregate of
the estimated monthly payments exceeds the Tenant's Proportionate Share of the
Excess Expenses for such calendar year, then Landlord shall, together with the
statement, tender
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36
to Tenant an amount equal to such difference or such difference shall be a
credit against the next and each successive payment of Rent becoming due until
such credit is exhausted. The obligations of Tenant and Landlord to make
payments or credits required by this Rider shall survive the Expiration Date.
(g) Landlord shall, at Tenant's request, forward copies of all records
reasonably necessary for Tenant to verify the accuracy of the statement of
Excess Expenses. Further, Landlord shall, at Tenant's request, make available to
Tenant for inspection and examination, all the books and records that relate to
such statement of Excess Expenses. However, if the books and records are not
made available at Landlord's offices upon reasonable request by Tenant during
Landlord's business hours, then the additional rent due in that year shall, in
no event, be due and payable earlier than 20 days after Tenant's request is
honored. Tenant shall have the right to cause and Landlord shall permit audits
to be made of the statement and such books and records by Tenant's auditors or
by independent auditors or accountants of Tenant's choosing. Any statement
period used as a base year for the purpose of calculating Excess Expenses may be
audited at any time; an audit of any statement must begin no more than six (6)
months after Tenant's receipt of such statement from Landlord. Landlord shall
cooperate with such auditors and accountants and shall promptly (but in no event
later than ten business days after request) make such additional records of
Landlord as they shall reasonably request available for examination at the
Landlord's offices. If the results of such audit indicate the statement for any
calendar year overstated Operating Expenses for such calendar year by five
percent (5%) or more, Landlord shall pay Tenant the reasonable cost of such
audit in addition to any overpayment made by Tenant within 10 days of demand
therefor. A report of the findings of the auditors or accountants shall be
provided to both Landlord and Tenant and shall be binding and conclusive upon
Landlord and Tenant.
(h) Landlord shall use best efforts to operate the Building and the
Appurtenances at costs comparable for similar types of Class A office buildings
in Oklahoma City, and at the same time keep operating expenses at a reasonable
minimum. Without limiting the generality of the foregoing, Landlord and Tenant
acknowledge that during the Term costs necessary to provide the same general
level of services provided during the first calendar year may thereafter
increase.
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37
RIDER 2
Attached To And Made Part Of Lease Dated As Of February 13, 1998.
Made Between
TMJ PROPERTIES, L.L.C. (Landlord)
and
WILLIAMS-SONOMA, INC. (Tenant)
Expansion Premises. Tenant shall have the option (Expansion Option") to
cause Landlord to expand the Premises to accommodate an additional 15,000
rentable square feet of improved space, together with Overflow Parking (minimum
of thirteen (13) parking spaces per 1,000 square feet of building), in the
location depicted on Exhibit "B" attached hereto and described in Exhibit "A"
attached hereto (the "Expansion Premises"). The Expansion Option shall not, at
Landlord's election, be exercisable if Tenant is in default under Paragraph 12
of this Lease at the time Tenant attempts to exercise the Expansion Option. In
order to exercise the Expansion Option, Tenant must deliver written notice
("Expansion Notice") thereof to Landlord prior to the expiration of the third
(3rd) Lease Year. Upon Tenant's timely exercise of the Expansion Option,
Landlord shall cause the construction of the Expansion Premises in accordance
with the terms of this Lease. Subject to Applicable Laws, the improvements
provided by Landlord for the Expansion Premises shall be substantially the same
as the Base Improvements provided by Landlord for the original Improvements. The
estimated Commencement Date for the Expansion Premises will be twelve (12)
months following the date of Landlord's receipt of the Expansion Notice;
provided, however, that upon request from Tenant, Landlord shall use
commercially reasonable efforts to accelerate construction of improvements in
the Expansion Premises. The actual Commencement Date for Tenant's lease of the
Expansion Premises will be the date upon which the Expansion Premises has been
substantially completed as that term is defined in this Lease. The Term of
Tenant's lease of the Expansion Premises shall be co-terminous with the Term of
Tenant's lease of the original Premises. Effective upon the Commencement Date
for the Expansion Premises, (I) the Expansion Premises shall become a portion of
the Premises for all purposes under this Lease, and (ii) annual Fixed Rent shall
be increased by an amount equal to the product of the then-current Annual Fixed
Rent (on a rentable square foot basis) multiplied by the rentable square footage
35
38
contained in the improvements constructed for the Expansion Premises. The
then-current Annual Fixed Rent shall be adjusted for construction cost increases
from January 1, 1998 to the date that Tenant notifies Landlord of its intention
to exercise the Expansion Option under this Section. The index used to determine
the construction cost increases shall be the United States Bureau of Labor
Statistics Consumer Price Index for Urban Wage Earners and Clerical Workers
(Revised Series). The CPI for a specific date shall be deemed to mean the CPI
published on that date or, if not published on that date, the most recent
publication of the CPI prior to such date. If publication of the CPI shall be
discontinued, "CPI" shall be such other source as is most nearly comparable to
the CPI as defined above. Fixed Rent for the Expansion Space may also be
adjusted based on increases and/or decreases in the prime rate charged by
NationsBank, N.A. from the date this lease was executed to the date Tenant
notifies Landlord of its intention to exercise this Expansion Option.
Delay in Delivery. The term "Outside Date" shall mean August 15, 1998;
provided, however, that such August 15, 1998 date shall be extended on a
day-for-day basis to the extent that Landlord is delayed in substantially
completing the Improvements as a result of Tenant not executing the Lease by
February 9, 1998, any Tenant delays, and/or Force Majeure. In the event that the
Commencement Date does not occur on or before the Outside Date (as so extended),
then (i) Tenant's obligation to pay Monthly Fixed Rent shall not commence until
the commencement Date, (ii) for each week after the Outside Date (as so
extended) in which the Commencement Date has not occurred, (a) Tenant's first
obligations to pay Monthly Fixed Rent shall be reduced by the sum of $20,000 and
(b) the date of expiration of the initial Term shall be extended for two (2)
weeks.
The term "Outside Training Date" shall mean September 1, 1998; provided,
however, that such September 1, 1998 date shall be extended on a day-for-day
basis to the extent that Landlord is delayed in substantially completing the
Improvements as a result of Tenant not executing the Lease by February 9, 1998,
any Tenant delays, and/or Force Majeure. In the event that the Commencement Date
does not occur on or before the Outside Training Date (as so extended), then in
addition to Tenant's rights under preceding paragraph, (I) Landlord shall
reimburse Tenant, within thirty (30) days after Landlord's receipt of a
reasonably particularized invoice and other evidence of payment reasonably
requested by Landlord, for the excess ("Training Excess") of any actual,
out-of-pocket costs incurred by Tenant in order to train
36
39
Tenant's employees who will be working from the premises as of the Commencement
Date over and above the amount of actual, out-of-pocket expenses Tenant would
have incurred in order to train such employees had the Commencement Date
occurred on or before the Outside Training Date (as so extended), and (ii) the
date of expiration of the Initial Term shall be extended (in addition to the
extension described in the preceding paragraph) for a sufficient number of days
so that the monthly Fixed Rent paid by Tenant for the Premises during such
extension shall be equivalent to the amount of the Training Excess so paid by
Landlord.
Notwithstanding the foregoing, in the event the portion of the Building
designed for training (including adequate restroom facilities) in the Tenant's
floor plans is made available prior to September 1, 1998, then in that event
Landlord shall not be required to reimburse Tenant for the Training Excess of
any actual, out-of-pocket cost incurred by Tenant.
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40
EXHIBIT A
[MAP OF SITE PLAN]
36
41
[COON ENGINEERING, INC. LETTERHEAD]
EXHIBIT "B"
LEGAL DESCRIPTION
FOR
WILLIAMS-SONOMA
AND
OVERFLOW PARKING
PHASE II
AT
SILVER SPRINGS CROSSING
OKLAHOMA CITY, OKLAHOMA
A part of Lots Two (2) and Three (3), Block Nine (9), and a part of Lot One
(1), Block Four (4), Silver Springs Crossing Section 2, an addition to the City
of Oklahoma City, Oklahoma County, Oklahoma as recorded on Page 60 and 69 in
Book 53 of Plats and being more particularly described as follows:
Commencing at the Northeast corner of said Lot Three (3), thence along the
north line of said Lot 3, said line also being the south right of way line of
Northwest Eighty-Eighth (88th) Street, North 78 degrees 31' 47" West a distance
of 198.72 feet and thence South 11 degrees 28' 13" West a distance of 148.59
feet to the Point of Beginning; thence from said Point of Beginning South 00
degrees 00' 39" East a distance of 448.47 feet; thence South 40 degrees 37' 23"
West a distance of 183.25 feet; thence north 11 degrees 28' 13" East a distance
of 599.53 feet to the Point of Beginning containing 26,572 square feet or 0.61
acres more or less.
37
42
[MAP OF WILLIAMS-SONOMA & OVERFLOW PARKING PHASE II AT SILVER SPRINGS CROSSING
OKLAHOMA CITY, OKLAHOMA]
38
43
[MAP OF OVERFLOW PARKING PHASE II AT SILVER SPRINGS CROSSING
OKLAHOMA CITY, OKLAHOMA]
39
44
[MAP OF OVERFLOW PARKING PHASE II AT SILVER SPRINGS CROSSING
OKLAHOMA CITY, OKLAHOMA]
40
45
[COON ENGINEERING, INC. LETTERHEAD]
EXHIBIT "B"
LEGAL DESCRIPTION
FOR
WILLIAMS-SONOMA
CATALOG STORE
AT
SILVER SPRINGS CROSSING
OKLAHOMA CITY, OKLAHOMA
A part of Lots One (1), Two (2) and Three (3), Block Nine (9), and a part of
Lot One (1), Block Four (4), Silver Springs Crossing Section 2, an addition to
the City of Oklahoma City, Oklahoma County, Oklahoma as recorded on Page 60 and
69 in Book 53 of Plats and being more particularly described as follows:
Commencing at the Northeast corner of said Lot Three (3), thence along the
north line of said Lot 3, said line also being the south right of way line of
Northwest Eighty-Eighth (88th) Street, North 78 degrees 31'47" West a distance
of 198.72 feet and thence South 11 degrees 28'13" West a distance of 318.07
feet to the Point of Beginning; thence from said Point of Beginning South 11
degrees 28'13" West a distance of 430.04 feet; thence South 89 degrees 59'21"
West a distance of 383.17 feet; thence North 00 degrees 00'39" West a distance
of 421.44 feet; thence North 89 degrees 59'21" East a distance of 468.76 feet
to the Point of Beginning containing 179,467 square feet or 4.12 acres more or
less.
41
46
[Map of Williams Sonoma Catalog Store at Silver Springs
Crossing Oklahoma City, Oklahoma]
42
47
[CEI LOGO]
EXHIBIT "B"
LEGAL DESCRIPTION
FOR
OVERFLOW PARKING
AT
SILVER SPRINGS CROSSING
OKLAHOMA CITY, OKLAHOMA
A part of Lots One (1), Two (2) and Three (3), Block Nine (9), Silver Springs
Crossing Section 2, an addition to the City of Oklahoma City, Oklahoma County,
Oklahoma as recorded on Page 60 in Book 53 of Plats and being more particularly
described as follows:
Commencing at the Northeast corner of said Lot Three (3), thence along the north
line of said Lot 3, said line also being the south right of way line of
Northwest Eighty-Eighth (88th) Street, North 78 degrees 31' 47" West a distance
of 198.72 feet to the Point of Beginning on the south right of way line of
Northwest Eighty-Eighth (88th); thence from said Point of Beginning South 11
degrees 28' 13" West a distance of 318.07 feet; thence South 89 degrees 59' 21"
West a distance of 468.76 feet; thence North 00 degrees 00' 39" West a distance
of 82.93 feet to a point on the south right of way line of Northwest
Eighty-Eighth (88th) Street, continuing along said right-of-way line the
following five calls; thence round a non-tangent curve to the left having a
central angle of 29 degrees 20' 54", a radius of 351.15 feet, an arc distance of
179.87 feet, a chord bearing of North 53 degrees 11' 14" Each with a distance of
177.90 feet; thence North 38 degrees 30' 47" East a distance of 96.03 feet;
thence around a non-tangent curve to the right having a central angle of 22
degrees 33' 41", a radius of 204.98 feet, an arc distance of 80.72 feet, a chord
bearing of North 49 degrees 47' 38" East with a distance of 80.20 feet; thence
around a non-tangent curve to the left having a central angle of 25 degrees 11'
18", a radius of 146.00 feet, an arc distance of 64.18 feet, a chord bearing of
North 70 degrees 00' 32" East with a distance of 63.67 feet; thence around a
non-tangent curve to the right having a central angle of 22 degrees 31' 37" a
radius of 204.98 feet, an arc distance of 80.59 feet, a chord bearing of South
89 degrees 47' 36" East with a distance of 80.08 feet; thence South 78 degrees
31' 47" East a distance of 131.27 feet to the Point of Beginning containing
128,066 square feet or 2.94 acres more or less.
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48
[MAP FOR OVERFLOW PARKING AT SILVER SPRINGS CROSSING OKLAHOMA CITY, OKLAHOMA]
44
49
INSERT EXHIBIT "C" HERE (TENANT'S CONSTRUCTION DOCUMENTS)
47
50
EXHIBIT D
Attached To And Made part Of Lease Dated As Of February 13, 1998.
Made Between TJM PROPERTIES, L.L.C. (Landlord)
and
WILLIAMS-SONOMA, INC. (Tenant)
RULES & REGULATIONS
Tenant shall abide by and observe the following rules and regulations as well as
other reasonable rules and regulations as may be promulgated from time to time
by Landlord for the operation, safety, security and maintenance of the Building.
A copy of any new rules and regulations shall be provided by Landlord to Tenant.
1. Nothing shall be placed in the Premises which may be visible from the
exterior of the Building (including window treatments) without the prior written
consent of Landlord.
2. No additional or replacement locks shall be placed on any door of the
Premises and Tenant shall not permit duplicate keys to be made. Additional keys
shall be procured by Landlord for Tenant at Tenant's expense. Tenant shall be
solely responsible for the security of keys to the Premises. All keys furnished
to Tenant shall be surrendered to Landlord at the termination of the term.
3. Tenant shall not install or operate any steam or internal combustion
engine, boiler, machinery, or air conditioning apparatus in or about the
Premises or carry on any mechanical business therein. Landlord shall provide
vending machines.
4. The rest room fixtures shall not be used for purposes other than
those for which they were constructed.
5. Tenant shall not make noises, cause disturbances or vibrations or use
any electrical or electronic devices or other devices that emit sound or other
waves or disturbances or create odors, and shall not place or install any
musical instrument or equipment or any similar
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51
device outside the Building without the prior approval of Landlord. The use
thereof, if permitted, shall be subject to the control of the Landlord to the
end that others shall not be disturbed or annoyed.
6. No animals (except animal assistants to the disabled), birds,
bicycles or other vehicles shall be allowed in any part of the Building without
the prior consent of Landlord.
7. Tenant shall not accumulate or store on the Premises any waste paper,
discarded records, books, paper files, sweepings, rags, rubbish or other
combustible matter.
8. Tenant shall not exhibit, sell or offer to sell, use, rent or
exchange any item or service in or from the Premises unless within the permitted
use of the Premises as set forth in the Lease.
9. Landlord reserves the right to exclude from the Building all
disorderly persons, persons under the influence of alcohol or a controlled
substance, idlers and peddlers, solicitors, and persons entering in crowds or in
such unusual numbers as to cause inconvenience to the tenants of the Building.
10. Any parking spaces included in the Lease shall be used only for the
personal automobiles of Tenant and its employees and guests (including pickup
trucks and vans but excluding trucks, motor homes and the like). Landlord
reserves the right to designate locations for one or more of such parking
spaces. Upon Landlord's request, Tenant shall promptly furnish Landlord the
names, vehicle descriptions and vehicle license numbers of each authorized user
of Tenant's parking spaces. Landlord reserves the right to tow illegally parked
vehicles at the expense of the vehicle owner.
11. Tenant shall comply with all terms, conditions and covenants of the
Lease in connection with its use and occupancy of the Premises.
12. All deliveries to the Premises shall be made during business hours.
13. The Tenant shall not do or permit anything to be done in the Lease
Premises or bring or keep anything therein which will in any way increase the
rate of fire insurance on the Building or on property kept therein or obstruct
or interfere with the laws relating to fire or with any regulations of the fire
department or with the insurance policy upon the Building or any part thereof or
conflict with any of the rules or ordinances of the Board of Health of Oklahoma
City.
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EXHIBIT "E"
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(CHOOSE FROM BOLDED LANGUAGE IN BRACKETS)
This Subordination, Non-Disturbance and Attornment Agreement (this
"Agreement") dated February 23, 1998, is made among Williams-Sonoma, Inc.
("Tenant"), TJM Properties, L.L.C. ("Landlord"), and Local Federal Bank, F.S.B.,
("Mortgagee").
WHEREAS, Mortgagee is the owner of a promissory note (herein, as it may
have been or may be from time to time renewed, extended, amended or
supplemented, called the "Note") dated February 23, 1998, executed by TJM
Properties, L.L.C. payable to the order of Local Federal Bank, F.S.B., in the
principal amount of $3,590,000, bearing interest and payable as therein
provided, secured by, among other things, a Deed of Trust (herein, as it may
have been or may be from time to time renewed, extended, amended or
supplemented, called the "Mortgage"), recorded in Volume 7252, Page 148, real
property records of Oklahoma County, OK, covering, among other property, the
land (the "Land") described in Exhibit "A" which is attached hereto and
incorporated herein by reference, and the improvements ("Improvements") thereon
(such Land and Improvements being herein together called the "Property");
WHEREAS, Tenant is the tenant under a lease which, including all
amendments and supplements thereto, is described as follows:
Williams-Sonoma Building
- ------------------------------------------------------------------------------
(herein, as it may from time to time be renewed, extended, amended or
supplemented, called the "Lease"), covering a portion of the Property (said
portion being herein referred to as the "Premises"); and
WHEREAS, the term "Landlord" as used herein means the present landlord
under the Lease or, if the landlord's interest is transferred in any manner, the
successor(s) or assign(s) occupying the position of landlord under the Lease at
the time in question:
THEREFORE, in consideration of the mutual agreements herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Subordination. Tenant agrees and covenants that the Lease and the
rights of Tenant thereunder, all of Tenant's right, title and interest in and to
the property covered by the Lease, and any lease thereafter executed by Tenant
covering any part of the Property, are and shall be subordinate and inferior to
(a) the Mortgage and the rights of Mortgagee thereunder, and all right, title
and interest of Mortgagee in the Property, and (b) all other security documents
now or hereafter securing payment of any indebtedness of the Landlord (or any
prior landlord) to Mortgagee which cover or affect the Property (the "Security
Documents"). This Agreement is not intended and shall not be construed to
subordinate the Lease to any mortgage, deed of trust or other security document
other than those referred to in the preceding sentence, securing the
indebtedness to Mortgagee. Without limitation of any other provision hereof,
Mortgagee may, at its option and without joinder or further consent of Tenant,
Landlord, or anyone else, at any time after the date hereof subordinate the lien
of the Mortgage (or any other lien or security interest held by Mortgagee which
covers or affects the Property) to the Lease by executing an instrument which is
intended for that purpose and which specifies such subordination; and, in the
event of any such election by Mortgagee to subordinate, Tenant will execute any
documents required to evidence such subordination; provided however,
notwithstanding that the Lease may by unilateral subordination by Mortgagee
hereafter be made superior to the lien of the Mortgage, the provisions of the
Mortgage relative to the rights of Mortgagee with respect to proceeds arising
from an eminent domain taking (including a voluntary conveyance by Landlord)
and/or insurance payable by reason of damage to or destruction of the Premises
shall be prior and superior to and shall control over any contrary provisions in
the Lease.
2. Non-Disturbance. Mortgagee agrees that so long as the Tenant is not
in default in the payment of rent, additional rent, or other payments or in the
performance of any of the other terms, covenants or conditions of the Lease on
Tenant's part to be performed (beyond the period, if any, specified in the Lease
within which Tenant may cure such default),
(a) Tenant's possession of the Premises under the Lease shall
not be disturbed or interfered with by Mortgagee in the exercise of any
of its rights under the Mortgage, including any foreclosure or
conveyance in lieu of foreclosure, and
(b) Mortgagee will not join Tenant as a party defendant for the
purpose of terminating Tenant's interest and estate under the Lease in
any proceeding for foreclosure of the Mortgage.
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3. Attornment.
(a) Tenant covenants and agrees that in the event of foreclosure
of the Mortgage, whether by power of sale or by court action, or upon a
transfer of the Property by conveyance in lieu of foreclosure (the
purchaser at foreclosure or the transferee in lieu of foreclosure,
including Mortgagee if it is such purchaser or transferee, being herein
called "New Owner:"), Tenant shall attorn to the New Owner as Tenant's
new landlord, and agrees that the Lease shall continue in full force and
effect as a direct lease between Tenant and New Owner upon all of the
terms, covenants, conditions and agreements set forth in the Lease and
this Agreement, except for provisions which are impossible for Mortgagee
to perform; provided, however, that in no event shall the New Owner be:
(i) liable for any act, omission, default,
misrepresentation, or breach of warranty, of any previous landlord
(including Landlord) or obligations accruing prior to New Owner's actual
ownership of the property;
(ii) subject to any offset, defense, claim or
counterclaim which Tenant might be entitled to assert against any
previous landlord (including Landlord);
(iii) bound by any payment of rent, additional rent or
other payments, made by Tenant to any previous landlord (including
Landlord) for more than one (1) month in advance;
(iv) bound by any amendment, or modification of the
Lease hereafter made, (including Landlord) under the Lease to any
assignment or sublease hereafter granted, without the written consent of
Mortgagee; or
(v) liable for any deposit that Tenant may have given to
any previous landlord (including Landlord) which has not, as such, been
transferred to New Owner.
(b) The provisions of this Agreement regarding attornment by
Tenant shall be self-operative and effective without the necessity of
execution of any new lease or other document on the part of any party
hereto or the respective heirs, legal representatives, successors or
assigns of any such party. Tenant agrees, however, to execute and
deliver at any time and from time to time, upon the request of Landlord
or of any holder(s) of any of the indebtedness or other obligations
secured by the Mortgage, any instrument or certificate reasonably may be
necessary to appropriate in any such foreclosure proceeding or otherwise
to evidence such attornment, including, if requested, a new lease of the
Premises on the same terms and conditions as the Lease for the then
unexpired term of the Lease.
4. Estoppel Certificate. Tenant agrees to execute and deliver from time
to time, upon the request of Landlord or of any holder(s) of any of the
indebtedness or other obligations secured by the Mortgage, a certificate
regarding the status of the Lease, consisting of statements, if true (or it not,
specifying why not), (a) that the Lease is in full force and effect, (b) the
date through which rentals have been paid, (c) the date of the commencement of
the term of the Lease, (d) the nature of any amendments or modifications of the
Lease (e) that to Tenant's knowledge no default, or state of facts which with
the passage of time or notice (or both) would constitute a default, exists under
the Lease, and (f) such other matters as may be reasonably requested.
5. Acknowledgement and Agreement by Tenant. Tenant acknowledges and
agrees as follows:
(a) Tenant acknowledges that Landlord will execute and deliver
to Mortgagee in connection with the financing of the Property [AN
ASSIGNMENT OF LEASES AND RENTS ASSIGNING ABSOLUTELY THE RENT AND ALL
OTHER SUMS DUE UNDER THE LEASE] [A COLLATERAL ASSIGNMENT OF LEASES AND
RENTS, AND ALL OTHER SUMS DUE UNDER THE LEASE TO MORTGAGEE AS ADDITIONAL
SECURITY]. Tenant hereby expressly consents to such (absolute
assignment) (collateral assignment) and agrees that such assignment
shall, in all respects, be superior to any interest Tenant has in the
Lease or the Property, subject to the provisions of this Agreement.
Tenant shall not prepay any rents or other sums due under the lease for
more than one (1) month in advance of the due date therefor. Tenant
acknowledges that Mortgagee will rely upon this instrument in connection
with such financing.
(b) Mortgagee, in making any disbursements to landlord, is under
no obligation or duty to oversee or direct the application of the
Proceeds of such disbursements, and such proceeds may be used by
Landlord for purposes other than improvement of the Property.
(c) From and after the date hereof, in the event of any act or
omission by Landlord which would give Tenant the right, either
immediately or after the lapse of time, to terminate the Lease or to
claim a partial or total eviction, Tenant will not exercise any such
right (I) until it has given written notice of such act or omission to
the Mortgagee; and (ii) until the same period of time as is given to
Landlord under the Lease to cure such act or omission shall have elapsed
following such giving of notice to Mortgagee and following the time when
Mortgagee shall have
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become entitled under the Mortgage to remedy the same, but in any event
30 days after receipt of such notice during which period of time
Mortgagee shall be permitted to cure or remedy such default, act, or
omission; provided, however, that Mortgagee shall have no duty or
obligation to cure or remedy and breach or default. It is specifically
agreed that Tenant shall not, as to Mortgagee, require cure of any such
default which is personal to Landlord and therefore not susceptible to
cure by Mortgagee.
(d) In the event that Mortgagee notifies Tenant of a default
under the Mortgage, Note, or Security Documents and demands that Tenant
pay its rent and all other sums due under the Lease directly to
Mortgagee, Tenant shall honor such demand and pay the full amount of its
rent and all other sums due under the Lease directly to Mortgagee or as
otherwise required pursuant to such notice beginning with the payment
next due after such notice of default, without inquiry as to whether a
default actually exists under the Mortgage, Security documents or
otherwise in connection with the Note, and notwithstanding any contrary
instructions of or demands from Landlord, and without any liability to
Landlord for making such payment to Mortgagee.
(e) Tenant shall send a copy of any notice or statement of
Landlord's default under the Lease to Mortgagee at the same time such
notice or statement is sent to Landlord.
(f) Tenant has no right or option of any nature whatsoever,
whether pursuant to the Lease or otherwise, to purchase the Premises or
the Property, or any portion thereof or any interest therein, and to the
extent that Tenant has had, or hereafter acquires, any such right or
option, same is hereby acknowledged to be subject and subordinate to the
Mortgage and is hereby waived and released as against Mortgagee.
(g) This Agreement satisfies any condition or requirement in the
Lease relating to the granting of a non-disturbance agreement with
respect to the subject Mortgage only and Tenant waives any requirement
to the contrary in the Lease.
(h) Mortgagee and any New Owner shall have no obligation nor
incur any liability with respect to the erection or completion of the
improvements in which the Premises are located or for completion of the
Premises or any improvements for Tenant's use and occupancy, either at
the commencement of the term of the Lease or upon any renewal or
extension thereof or upon the addition of additional space, pursuant to
any expansion rights contained in the Lease.
(i) Mortgagee and any New owner shall have no obligation nor
incur any liability with respect to any warranties of any nature
whatsoever, whether pursuant to the Lease or otherwise, including,
without limitation, any warranties respecting use, compliance with
zoning, Landlord's title, landlord's authority, habitability, fitness
for purpose or possession.
(j) In the event that Mortgagee or any New Owner shall acquire
title to the Premises or the Property, Mortgagee or such New Owner shall
have no obligation, nor incur any liability, beyond Mortgagee's or New
Owner's then equity interest, if any, in the Property or the Premises,
and Tenant shall look exclusively to such equity interest of Mortgagee
or New Owner, if any, for the payment and discharge of any obligations
imposed upon Mortgagee or New Owner hereunder or under the Lease or for
recovery of any judgment from Mortgagee, or New Owner, and in no event
shall Mortgagee, New Owner, nor any of their respective officers,
directors, shareholders, agents, representatives, servants, employees or
partners ever be personally liable for such judgement.
(k) Nothing herein contained is intended, nor shall it be
construed, to abridge or adversely affect any right or remedy of
Landlord under the Lease in the event of any default by Tenant in the
payment of rent and/or any other sums due under the Lease or in the
performance of any of the other terms, covenants or conditions of the
Lease on Tenant's part to be performed.
(l) Landlord has not agreed to any abatement of rent or other
sums or period of "free rent" for the Premises unless same is
specifically provided in the Lease, and Tenant agrees that in the event
Mortgagee, or any New Owner becomes the owner of the Property, no
agreement for abatement of rent or any other sum not specifically
provided in the Lease will be binding on Mortgagee or New Owner.
6. Acknowledgement and Agreement by Landlord. Landlord, as landlord
under the Lease and grantor under the Mortgage, acknowledges and agrees for
itself and its heirs, representatives, successors and assigns, that: (a) this
Agreement does not constitute a waiver by Mortgagee of any of its rights under
the Mortgage, Note, or Security Documents, or in any way release landlord from
its obligations to comply with the terms, provisions, conditions, covenants,
agreements and clauses of the Mortgage, Note, and Security Documents; (b) the
provisions of the Mortgage, Note, or Security Documents remain in full force and
effect and must be complied with by Landlord; and (c) Tenant is hereby
authorized to pay its rent and all other sums due under the Lease directly to
Mortgagee upon receipt of a notice as set forth in paragraph 5(d) above from
Mortgagee and that
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Tenant is not obligated to inquire as to whether a default actually exists under
the Mortgage, Security Documents or otherwise in connection with the Note.
Landlord hereby releases and discharges Tenant of and from any liability to
Landlord resulting from Tenant's payment to Mortgagee in accordance with this
Agreement. Landlord represents and warrants to Mortgagee that a true and
complete copy of the Lease has been delivered by landlord to Mortgagee.
7. Lease Status. Landlord and Tenant certify to Mortgagee that neither
Landlord nor Tenant has knowledge of any default on the part of the other under
the Lease, that the Lease is bonafide and contains all of the agreements of the
parties thereto with respect to the letting of the Premises and that all of the
agreements and provisions therein contained are in full force and effect.
8. Notices. All notices, requests, consents, demands and other
communications required or which any party desires to give hereunder shall be in
writing and shall be deemed sufficiently given or furnished if delivered by
personal delivery, by telegram, telex, or facsimile, by expedited delivery
service with proof of delivery, or by registered or certified United States
mail, postage prepaid, at the addresses specified at the end of this Agreement
(unless changed by similar notice in writing given by the particular party whose
address is to be changed). Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of
delivery service or mail, as of the date first attempted delivery at the address
and in the manner provided herein, or, in the case of telegram, telex or
facsimile, upon receipt. Notwithstanding the foregoing, no notice of change of
address shall be effective except upon receipt. This Paragraph 8 shall not be
construed in any way to affect or impair any waiver of notice or demand provided
in this Agreement or in the lease or in any document evidencing, securing or
pertaining to the loan evidenced by the Note or to require giving of notice or
demand to or upon any person in any situation or for any reason.
9. Miscellaneous.
(a) This Agreement supersedes any inconsistence provision of the
Lease.
(b) Nothing contained in this Agreement shall be construed to
derogate from or in any way impair or affect the lien, security interest
or provisions of the Mortgage, Note, or Security documents.
(c) This Agreement shall inure to the benefit of the parties
hereto, their respective successors and permitted assigns, and any New
Owner, and its heirs personal representatives, successors and assigns;
provided however, that in the event of the assignment or transfer of the
interest of Mortgagee, all obligations and liabilities of the assigning
Mortgagee under this Agreement shall terminate, and thereupon all such
obligations and liabilities shall be the responsibility of the party to
whom mortgagee's interest is assigned or transferred.
(d) THIS AGREEMENT AND ITS VALIDITY, ENFORCEMENT AND
INTERPRETATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
OKLAHOMA AND APPLICABLE UNITED STATES FEDERAL LAW EXCEPT ONLY
TO THE EXTENT, IF ANY, THAT THE LAWS OF THE STATE IN WHICH THE
PROEPRTY IS LOCATED NECESSARILY CONTROL.
(e) The words "herein", "hereof", "hereunder" and other similar
compounds of the word "here" as used in this Agreement refer to this
entire Agreement and not to any particular section or provision.
(f) This Agreement may not be modified orally or in any manner
other than by an agreement in writing signed by the parties hereto or
their respective successors in interest.
(g) If any provision of the Agreement shall be held to be
invalid, illegal, or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not apply to or affect any other
provision hereof, but this Agreement shall be construed as if such
invalidity, illegality, or unenforceability did not exist.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
ADDRESS OF MORTGAGEE: MORTGAGEE:
- --------------------- ----------
LOCAL FEDERAL BANK, F.S.B. LOCAL FEDERAL BANK, F.S.B.
- -------------------------------- -------------------------------------
3601 N.W. 63rd St. By: /s/ Paul Lienhard
- -------------------------------- -------------------------------------
Okla. City, Okla. 73116 Name: Paul Lienhard
- -------------------------------- -----------------------------------
Attention: Paul Lienhard Title: Senior Vice President
----------------------- ----------------------------------
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ADDRESS OF TENANT: TENANT:
- ------------------ -------
3250 Van Ness Avenue
- -------------------------------- -------------------------------------
San Francisco, CA 94109 By: /s/ PAT CONNOLLY
- -------------------------------- -------------------------------------
Name: Pat Connolly
- -------------------------------- -----------------------------------
Attention: Susi Browne Title: Executive V.P. General Manager
----------------------- ----------------------------------
Catalogue
----------------------------------
ADDRESS OF LANDLORD: LANDLORD:
- -------------------- ---------
3232 W. Britton Rd TJM Properties L.L.C.
- -------------------------------- -------------------------------------
Suite 250 By: /s/ F. BARRY TAPP
- -------------------------------- -------------------------------------
Oklahoma, OK 73120 Name: F. Barry Tapp
- -------------------------------- -----------------------------------
Attention: F. Barry Tapp Title: Manager Member
----------------------- ----------------------------------
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