STATE OF TEXAS)
COUNTY OF DALLAS)
ASSIGNMENT AND ASSUMPTION OF LEASE OBLIGATIONS
KNOW ALL MEN BY THESE PRESENTS, THAT, SUBJECT TO THE TERMS AND CONDITIONS
SET FORTH IN THIS ASSIGNMENT AND ASSUMPTION OF LEASE OBLIGATIONS, SOUTHWESTERN
FINANCIAL SERVICES CORPORATION ("ASSIGNOR"), A DELAWARE CORPORATION, FOR AND IN
CONSIDERATION OF THE SUM OF $10.00 IN HAND PAID AND OTHER GOOD AND VALUABLE
CONSIDERATION FROM MIDDLEBERG, RIDDLE & GIANNA ("ASSIGNEE"), A TEXAS GENERAL
PARTNERSHIP, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, HEREBY
ASSIGNS, TRANSFERS AND CONVEYS UNTO ASSIGNEE, EFFECTIVE JUNE 10TH, 2000 (THE
"EFFECTIVE DATE"), ALL OF ASSIGNOR'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER
THAT PORTION OF A CERTAIN WRITTEN LEASE (INCLUDING ANY RENEWALS, EXTENSIONS, OR
MODIFICATIONS THEREOF) ("LEASE") DATED THE 27TH DAY OF MARCH, 1997, BETWEEN
MAXUS TOWER LIMITED PARTNERSHIP AS LANDLORD AND ASSIGNOR AS TENANT COVERING THE
RENTAL OF APPROXIMATELY 50,184 RENTABLE SQUARE FEET OF OFFICE SPACE CONSTITUTING
ALL OF THE 23RD AND 24TH floors of the Maxus Energy Tower at 717 N. Harwood
Street, Dallas, Texas ("Assigned Premises"), to have and to hold the same for
and during the remainder of the term of the Lease. Assignor does further
covenant that Assignor's interest in the Lease is free from all other gifts,
grants, bargains, sales, leases and encumbrances made or created by the
Assignor, and Assignor does further covenant, for itself and its successors and
assigns, that it will take no action and will not fail to take any action, which
action or failure to act would cause the Lease to be canceled or terminated,
without first obtaining the written consent of the Assignee. Assignee, for and
in consideration of such assignment by Assignor, does hereby covenant and agree
that, from and after the Effective Date, Assignee shall assume, perform and
release and hold Assignor harmless from and against any and all liabilities and
obligations of Assignor under the Lease relating to the Assigned Premises;
provided, however, that Assignee does not and shall not assume or release and
hold harmless Assignor from and against any monetary liability of Assignor under
the Lease relating to the Assigned Premises which accrued at any time prior to
the Effective Date.
IN CONSIDERATION of the aforesaid assignment and Assignee's agreement,
herewith given, to assume and fully and completely perform each and all of the
Lease obligations concerning the Assigned Premises as set forth in the Lease,
Assignor and Assignee further agree as follows:
1. BACKGROUND. Assignor and Assignee acknowledge and stipulate to the
following facts:
(A) Assignee and BRE/Maxus, L.P. (the "Landlord"), a Delaware limited
partnership which is the successor in interest to Maxus Tower Limited
Partnership, a Texas limited partnership which was the original lessor
under the Lease, have executed and delivered that certain Partial
Assumption of Lease and Lease Amendment No. 1 (the "Partial
Assumption") pursuant to which Assignee has assumed and agreed to
perform any and all obligations of Assignor under the Lease relating
to the Assigned Premises from and after the Effective Date;
(B) Assignor and Landlord have negotiated to final form and have agreed to
execute and deliver that certain Consent to Partial Assignment and
Lease Amendment No. 1 (the "Consent") pursuant to which Landlord will
(i) consent to Assignor's partial assignment of the Lease to Assignee
relating to the Assigned Premises effective on and as of the Effective
Date and (ii) release Assignor from any and all obligations under the
Lease relating to the Assigned Premises effective on and as of the
Effective Date;
(C) Assignor and Assignee previously executed and delivered that certain
Assignment of Lease dated June 16, 2000 (the "Prior Assignment")
pursuant to which Assignor assigned to Assignee that portion of the
Lease relating to the Assigned Premises; and
(D) Assignor tendered to Assignee, and Assignee accepted, the sum of
$586,425 by check number 011382 dated June 16, 2000 in satisfaction of
Assignor's obligations under the Prior Assignment to pay to Assignee:
(1) a Tenant Improvement Payment in the amount of $150,000 pursuant
to section 3 of the Prior Assignment; and
(2) one-half of the Rent Equalization Payment of $872,850 pursuant to
section 4 of the Prior Assignment.
2. PRIOR ASSIGNMENT SUPERSEDED. Assignor and Assignee agree that the Prior
Assignment is and shall be for all purposes superseded and replaced in its
entirety by this Assignment and Assumption of Lease Obligations, and that
the Prior Assignment is and shall be void and shall have no force or
effect.
3. COMMENCEMENT OF RENT OBLIGATION. Assignee shall be entitled to occupancy of
the Assigned Premises from and after September 15, 2000, and shall commence
to pay the rent under the Lease attributable to the Assigned Premises on
and after January 1, 2001. Assignee has inspected the Assigned Premises and
accepts the Assigned Premises on an "AS IS" and "WITH ALL FAULTS" basis,
and Assignor shall have no liability or obligation to Assignee based upon,
relating to or arising out of any actual or alleged defect or other
characteristic of the Leased Presmises.
4. FURNITURE PROVISIONS.
(A) ASSIGNOR SHALL LEAVE IN PLACE ON THE 23RD AND 24TH FLOORS ALL MODULAR
FURNITURE NECESSARY TO REASONABLY FACILITATE THE NEEDS OF ASSIGNEE FOR
BOTH THE 23RD AND 24TH FLOORS. IN THE EVENT THAT ADDITIONAL MODULAR
FURNITURE IS REQUIRED BY ASSIGNEE, ASSIGNOR WILL, TO THE EXTENT AND
ONLY TO THE EXTENT THAT SAME IS AVAILABLE FROM ITS OTHER FLOORS OR ITS
WAREHOUSE, PROVIDE SUCH ADDITIONAL MODULAR FURNITURE. ASSIGNEE
ACKNOWLEDGES AND AGREES THAT IN CERTAIN SITUATIONS CERTAIN MODULAR
FURNITURE CONFIGURATIONS CURRENTLY LOCATED ON THE 23RD FLOOR WILL BE
RELOCATED BY ASSIGNOR TO OTHER FLOORS AND RETAINED BY ASSIGNOR IN
ORDER TO PRESERVE AND MAINTAIN IDENTICAL WORKING CONDITIONS FOR THOSE
ASSIGNOR EMPLOYEES CURRENTLY USING SUCH MODULAR FURNITURE
CONFIGURATIONS. SPECIFIC TO THE 23RD floor, Assignor will provide, at
its expense, reasonable rebuilding of disassembled Modular Furniture
to the specifications of Assignee and/or Assignee's sub-tenant. Such
rebuilding will be completed on or before December 01, 2000.
(B) The term "Modular Furniture" as used in this Assignment and Assumption
of Lease Obligations shall mean and include any and all components of
the Steelcase office furniture currently in use or held in storage by
Assignor, including, but not limited to, chairs, overhangs, work
surfaces, integrated file cabinets, and wall panels; provided,
however, that free-standing file cabinets are not included within the
definition of such term.
(C) SUBJECT TO THE TERMS OF ASSIGNOR'S EXISTING LEASE OF SUCH MODULAR
FURNITURE FROM STEELCASE, ASSIGNOR AND ASSIGNEE WILL USE THEIR MUTUAL
BEST EFFORTS, AT THE EXPIRATION OF THE STEELCASE LEASE CONTRACT, TO
RETAIN (THROUGH PURCHASE OR OTHERWISE) THE MODULAR FURNITURE THEN
LOCATED ON THE 23RD AND 24TH floors (any such transaction shall be
hereinafter referred to as the "Modular Furniture Retention").
Financial responsibility for the Modular Furniture Retention, and
ownership (whether outright or through leasehold) of the Modular
Furniture so retained, shall be borne by and vested in Assignor and
Assignee, respectively, with respect to the Modular Furniture each of
Assignor and Assignee, respectively, possesses at the time of the
Modular Furniture Retention. By the end of January 2001, Assignor and
Assignee will complete a written Modular Furniture inventory which
will specify and quantify the inventory of Modular Furniture each
party has in its possession.
(D) Assignor and Assignee agree that:
(1) ALL KITCHEN EQUIPMENT CURRENTLY LOCATED ON THE 24TH floor will
remain in place and become the property of Assignee on and as of
the Effective Date;
(2) THE LARGE CONFERENCE ROOM TABLES AND ASSOCIATED CHAIRS CURRENTLY
LOCATED ON BOTH THE 23RD AND 24TH floors will remain in place and
become the property of Assignee on and as of the Effective Date;
(3) THE LARGE LANDSCAPE PAINTING ARTWORK CURRENTLY LOCATED WITHIN THE
24TH floor large conference room will remain in place and become
the property of Assignee on and as of the Effective Date;
(4) ALL CHAIRS AND TEN (10) TABLES CURRENTLY LOCATED IN THE TRAINING
ROOM ON THE 24TH floor will remain in place and become the
property of Assignee on and as of the Effective Date;
(5) ALL FREE-STANDING FILE CABINETS WILL BE REMOVED FROM BOTH THE
23RD AND 24TH floors and will remain the property of Assignor;
and
(6) ALL ARTWORK AND OTHER PROPERTY NOT EXPRESSLY TRANSFERRED AND
ASSIGNED TO ASSIGNEE PURSUANT TO THIS ASSIGNMENT AND ASSUMPTION
OF LEASE OBLIGATIONS WILL BE REMOVED FROM BOTH THE 23RD AND 24TH
floors and will remain the property of Assignor.
(E) Assignee has inspected all Modular Furniture, other furniture, kitchen
equipment, artwork and other property transferred and assigned to
Assignee pursuant to this Assignment and Assumption of Lease
Obligations, accepts all of such property on an "AS IS" and "WITH ALL
FAULTS" basis, and acknowledges that Assignor (i) makes no
representations or warranties, express or implied, with respect to any
of such property and (ii) expressly disclaims any and all warranties,
express or implied, of design, quality, workmanship, safety,
merchantability or fitness for a particular or any purpose with
respect to any and all of such property.
(5) TENANT IMPROVEMENT PAYMENT. Assignor has paid to Assignee, and Assignee has
accepted, the Tenant Improvement Payment of $150,000 referenced in section
1(D)(1) of this Assignment and Assumption of Lease Obligations.
(6) RENT EQUALIZATION PAYMENT. ASSIGNOR SHALL PAY TO ASSIGNEE THE SUM OF
$872,850.00 AS CONSIDERATION FOR ASSIGNEE'S AGREEMENT TO PAY RENTAL FOR THE
23RD AND 24TH floors under the Lease from and after January 1, 2001 at the
rate specified in the Lease and for the full term of the Lease. Assignor
has paid to Assignee, and Assignee has accepted, one-half of such Rent
Equalization Payment as referenced in section 1(D)(2) of this Assignment
and Assumption of Lease Obligations. Assignor shall pay to Assignee the
remaining one-half of such Rent Equalization Payment, together with
interest on such amount at the rate of 8% per annum accruing monthly for
two (2) months from and after June 10, 2000, upon execution and delivery of
this Assignment and Assumption of Lease Obligations. In the event that
Assignee defaults in the full and timely payment and performance of any
liabilities or obligations under the Lease assumed by Assignee pursuant to
this Assignment and Assumption of Lease Obligations, such Rent Equalization
Payment shall be returned to Assignor, pro-rated over the term of the Lease
remaining from and after the Effective Date from the actual date of any
such default through the end of the term of the Lease.
(7) COMPUTER FACILITY. ASSIGNOR SHALL, FOR THE REMAINING TERM OF THE LEASE,
PERMIT ASSIGNEE USE OF THE RAISED FLOOR COMPUTER FACILITY CURRENTLY LOCATED
WITHIN ASSIGNOR'S LEASED PREMISES ON THE 22ND FLOOR TO HOUSE AND OPERATE
ASSIGNEE'S CURRENT HEWLETT-PACKARD COMPUTERS AND RELATED SUPPORT SERVICES.
ASSIGNOR AND ASSIGNEE AGREE THAT THE SPACE UTILIZED FOR SUCH PURPOSES WILL
BE SUCH AS TO BE MUTUALLY AND REASONABLY AGREEABLE. ACCESS SECURITY THAT
CURRENTLY EXISTS WITH RESPECT TO SUCH RAISED FLOOR COMPUTER FACILITY IS
AGREED TO BE SUFFICIENT FOR BOTH ASSIGNOR AND ASSIGNEE. ASSIGNOR FURTHER
AGREES THAT, IN ANY EVENT OTHER THAN TERMINATION OF THE LEASE PURSUANT TO
WHICH ASSIGNOR SHALL CEASE TO MAINTAIN AND OPERATE THE RAISED FLOOR
COMPUTER FACILITY NOW EXISTING WITHIN ASSIGNOR'S LEASED PREMISES ON THE
22ND floor, Assignor shall use its full best efforts to facilitate
assignment of the Lease with respect to such raised floor computer facility
to Assignee.
Assignee does hereby convenant and agree for itself and for its successors
and assigns to perform all of the covenants and obligations required to be
performed from and after the Effective Date by the Tenant under the Lease with
respect to the Assigned Premises, the same as if Assignee had been named as
Tenant therein.
EXECUTED this 15th day of August, 2000.
ASSIGNEE: ASSIGNOR:
Middleberg, Riddle & Gianna Southwestern Financial Services Corporation
By:/s/Michael L. Riddle By: /s/David B. Little
-------------------- ------------------
Michael L. Riddle David B. Little
Managing Partner Its: Sr. Vice President
