Exhibit 10.1
OFFICE LEASE AGREEMENT
by and between
TEXAS CORPORATE PROPERTIES, L.P.
a Texas limited partnership,
as Landlord
and
▇▇▇▇▇ HOSPITALS LIMITED
a Texas limited partnership,
as Tenant
GALLERIA NORTH, TOWER I
Dallas, Texas
May 14, 1998
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I
LEASED PREMISES, TERM, AND USE.........................................1
1.1 Leased Premises..................................................1
1.2 Term.............................................................6
1.3 Base Building Design............................................11
1.4 Use.............................................................15
1.5 Special Uses....................................................16
1.6 Survival........................................................20
ARTICLE II
RENTAL, OPERATING EXPENSES AND TENANT INDUCEMENTS.....................20
2.1 Rental Payments.................................................20
2.2 Base Rental.....................................................22
2.3 Additional Rental...............................................25
2.4 Operating Expenses..............................................27
2.5 Improvements Allowance..........................................34
ARTICLE III
BUILDING SERVICES, PARKING AND SIGNAGE................................37
3.1 Services........................................................37
3.2 Keys and Locks..................................................44
3.3 Graphics and Building Directory.................................45
3.4 Parking.........................................................46
3.5 Building Name and Signs.........................................49
3.6 Communications Equipment........................................52
ARTICLE IV
CARE OF PREMISES; LAW, RULES AND REGULATIONS..........................55
4.1 Care of Leased Premises.........................................55
4.2 Entry for Repairs and Inspection................................55
4.3 Nuisance........................................................55
4.4 Laws and Regulations: Rules of Project..........................55
4.5 Legal Use and Violations of Insurance Coverage..................56
4.6 REA Rights......................................................57
ARTICLE V
CONSTRUCTION OF IMPROVEMENTS AND REPAIRS..............................61
5.1 Base Building Improvements......................................61
i
5.2 Tenant Improvements.............................................63
5.3 Repairs by Landlord.............................................66
5.4 Repairs by Tenant...............................................66
5.5 Payments by Tenant..............................................67
5.6 Management......................................................67
ARTICLE VI
CONDEMNATION, CASUALTY AND INSURANCE..................................67
6.1 Condemnation....................................................67
6.2 Damages from Certain Causes.....................................70
6.3 Casualty Clause.................................................70
6.4 Casualty Insurance..............................................72
6.5 Liability Insurance.............................................74
6.6 Hold Harmless...................................................74
6.7 Waiver of Recovery and Subrogation..............................74
ARTICLE VII
DEFAULTS, REMEDIES, BANKRUPTCY, SUBORDINATION.........................75
7.1 Default and Remedies............................................75
7.2 Insolvency or Bankruptcy........................................79
7.3 Negation of Lien for Rent.......................................79
7.4 Attorney's Fees.................................................80
7.5 Waiver of Homestead.............................................80
7.6 No Waiver of Rights.............................................80
7.7 Holding Over....................................................80
7.8 Subordination...................................................82
7.9 Estoppel Certificate or Three-Party Agreement...................83
7.10 Vacating the Leased Premises....................................83
ARTICLE VIII
SUBLEASING, ASSIGNMENT, LIABILITY, AND PUBLICITY......................84
8.1 Sublease or Assignment by Tenant................................84
8.2 Assignment by Landlord..........................................90
8.3 Peaceful Enjoyment..............................................92
8.4 Limitation of Personal Liability................................92
8.5 Memorandum of Lease.............................................92
8.6 Consents........................................................92
8.7 Confidentiality.................................................92
8.8 Publicity.......................................................93
ARTICLE IX
OPTIONS...............................................................93
9.1 Renewal Options.................................................93
ii
ARTICLE X
ARBITRATION...........................................................98
10.1 Arbitration.....................................................98
ARTICLE XI
MISCELLANEOUS........................................................100
11.1 Notices........................................................100
11.2 Brokers........................................................102
11.3 Moving Procedures..............................................102
11.4 Definitions....................................................102
11.5 Binding on Successors..........................................107
11.6 Rights and Remedies Cumulative.................................107
11.7 Governing Law..................................................107
11.8 Rules of Construction..........................................108
11.9 Authority......................................................108
11.10 Severability...................................................108
11.11 Time of the Essence............................................108
11.12 Amendments.....................................................108
11.13 Entirety.......................................................108
11.14 References.....................................................108
11.15 Exhibits.......................................................108
11.16 Counterpart Execution..........................................108
11.17 Guaranty.......................................................108
EXHIBITS
Exhibit A-1 - Description of Project Land
Exhibit A-2 - Description of Complex Land
Exhibit A-3 - Description of Garage Land
Exhibit A-4 - Depiction of Project ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, Loading Dock and Complex Common Areas
Exhibit A-5 - Tollway Sign Land
Exhibit B - Communications Area
Exhibit C-1 - Base Building Improvements
Exhibit C-2 - Mechanical, Electrical and Plumbing Design Criteria
Exhibit D-1 - Construction of Building, Base Building Improvements and
Tenant Improvements
Exhibit D-2 - Outside Contractors
Exhibit E - Form of Calculation Notice
Exhibit F - Form of Commencement Declaration
Exhibit G - Schedule of Janitorial Services
Exhibit H - Form of Memorandum of Lease
Exhibit I - Building Standard Improvements
Exhibit J - Form of Guaranty
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Exhibit K - Landlord Fees
Exhibit L - Line Item Budget
Exhibit M - Form of Project Costs Declaration
Exhibit N - Sign Parameters
Exhibit O - Confidentiality Agreement
Exhibit P - On-Site Personnel
Exhibit Q - Architect's Certificate
Exhibit R - Project Rules
Exhibit S - Preliminary Plans and Specifications
iv
INDEX
DEFINITIONS
Term Page
---- ----
Actual Tenant...............................................................90
Additional Electrical Equipment.............................................40
Additional Equipment........................................................53
Adjacent Garage..............................................................3
Advance Transfer Notice.....................................................90
Affiliate..................................................................102
Applicable Arbitrated Amount................................................99
Applicable Factor...........................................................22
Applicable Rate.............................................................21
Approval Period.............................................................87
Assigned Parking Permits....................................................46
Base Building..............................................................103
Base Building Completion D...................................................7
Base Building Improvements..................................................61
Base Building Systems......................................................103
Base Rental.................................................................22
Base Rental Rate............................................................22
Basic Services Failure......................................................43
Building.....................................................................1
Building Construction Schedule..............................................62
Building Garage..............................................................3
Building II Lease..........................................................103
Building Operating Hours...................................................103
Building Permit Date........................................................28
Building Plans and Specifications..........................................103
Building Standard Rated Electrical Design Load..............................39
Building Standard Services..................................................37
Business Days..............................................................103
Calculation Notice...........................................................5
Commencement Date............................................................6
Commencement Declaration....................................................11
Common Areas.................................................................3
Communications Area.........................................................52
Communications Equipment....................................................52
Company....................................................................103
Comparable Buildings.......................................................103
Complex......................................................................1
Complex Common Areas.........................................................4
Complex Land.................................................................1
v
Complex Monument Sign.......................................................50
Condemnation Proceeds.......................................................69
Condition...................................................................49
Contract Services...........................................................34
Contractor Date.............................................................35
Contractor Payment..........................................................35
Control....................................................................102
Converted Spaces............................................................47
Convertible Amount..........................................................47
Damaged Property............................................................70
Delay Items................................................................103
Delay Payments..............................................................10
Design Parameters...........................................................11
Development Fee.............................................................23
Director....................................................................98
Dispute Period..............................................................81
Disputed Amounts............................................................36
Election Notice.............................................................94
Environmental Laws..........................................................56
Equity Contributions........................................................70
Estimated Excess............................................................63
Event of Default............................................................75
Final Bid Specifications....................................................14
Financial Institution......................................................103
First Class Building Standards.............................................104
First Notice................................................................78
First Services Notice.......................................................44
floor........................................................................4
Floor Group 1 Portion........................................................5
Floor Group 2 Portion........................................................5
Floor Group 3 Portion........................................................5
Floor Group 4 Portion........................................................5
Force Majeure Delays.......................................................104
Force Majeure Events.......................................................104
Garage Land..................................................................4
General Common Areas.........................................................3
General Contractor..........................................................62
Governmental Authority.....................................................104
Hazardous Materials........................................................104
HILP.......................................................................105
▇▇▇▇▇ ▇.▇..................................................................105
▇▇▇▇▇ Group................................................................105
▇▇▇▇▇ Manager..............................................................105
Holdover Notice.............................................................81
Holidays...................................................................105
Identity Signs..............................................................49
vi
Improvements Allowance......................................................35
INDEMNIFIED PARTY...........................................................19
Initial Leased Premises......................................................4
Initial REA................................................................105
Initial Term.................................................................6
Insurance Request...........................................................72
insured risk................................................................71
Intent Notice...............................................................94
Landlord Payment............................................................35
Landlord Termination Right..................................................85
Lease Year.................................................................105
Leased Premises..............................................................1
Leasehold Improvements.....................................................105
Legal Requirements.........................................................105
Line Item Budget............................................................23
Loading Dock.................................................................4
Major Portion................................................................5
Major Portion Anniversary Date...............................................9
Major Portion of the Initial Leased Premises.................................5
Market Base Rental Rate.....................................................96
Meeting.....................................................................99
Net Rentable Area............................................................2
net sales proceeds..........................................................91
Non-Disturbance Agreement...................................................82
Non-removable Improvements..................................................65
North Dallas Area..........................................................106
Notice Parties..............................................................44
Operating Expense Statement.................................................26
Operating Expenses..........................................................27
Outside Date.................................................................9
Outstanding Project Costs...................................................70
Parapet Signs...............................................................49
Parking Facility.............................................................3
Parking Permits.............................................................46
Parking Rental..............................................................96
PCB.........................................................................57
Permitted Affiliate.........................................................84
Permitted Holdover..........................................................81
Phase II Building............................................................4
Preliminary Plans and Specifications........................................13
Prime Rate..................................................................21
Pro Rata Floor Carry Costs..................................................10
Project......................................................................4
Project Costs...............................................................22
Project Costs Declaration...................................................24
Project Land.................................................................1
vii
Project Monument Sign.......................................................49
Project Plaza................................................................4
Qualified Damage............................................................71
Rate Notice.................................................................94
REA........................................................................106
Reduction Date..............................................................12
Reduction Notice............................................................12
Renewal Election Period.....................................................94
Renewal Option..............................................................93
Renewal Option Period.......................................................93
Renewal Space...............................................................94
Renewal Term................................................................93
Renewal Terms...............................................................93
Rent.......................................................................106
Rental Commencement Date.....................................................6
Rental Payments.............................................................20
Repairs by Landlord.........................................................66
Repairs by Tenant...........................................................66
Reportable Quantity.........................................................57
Required Amount.............................................................69
Restored Condition..........................................................72
Scheduled Completion Date....................................................8
Second Assignment/Sublease Notice...........................................87
Second Notice...............................................................78
Second Services Notice......................................................44
Service Areas................................................................2
Services Failure............................................................44
Sign Parameters.............................................................49
Special Private Uses........................................................16
Special Public Uses.........................................................16
Special Use Area............................................................18
Special Uses................................................................17
Sublease Threshold..........................................................86
substantially complete.....................................................106
substantially completed....................................................106
Substitute Parking..........................................................47
Substitute Parking Area.....................................................47
Successor...................................................................82
Tenant Construction Costs..................................................106
Tenant Construction Schedule................................................62
Tenant Delays..............................................................106
Tenant Improvement Delays..................................................107
Tenant Improvements........................................................107
Tenant Improvements Completion Date........................................107
Tenant Payment..............................................................35
Tenant's Additional Rental..................................................25
vii
Tenant's Additional Rental Adjustment.......................................26
Tenant's Auditor............................................................23
Tenant's Forecast Additional Rental.........................................25
Tenant's Percentage Share...................................................25
Term.........................................................................6
Tollway Sign................................................................50
Twenty Day Period...........................................................61
Unassigned Parking Permits..................................................46
Unavoidable Interruption....................................................43
Usable Area..................................................................3
Variable Operating Expenses.................................................34
Visitor Spaces..............................................................46
ix
OFFICE LEASE AGREEMENT
THE STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
THIS OFFICE LEASE AGREEMENT (this "Lease") is made and entered into
as of the 14th day of May, 1998 (the "Effective Date"), by and between Texas
Corporate Properties, L.P., a Texas limited partnership (hereinafter called
"Landlord"), and ▇▇▇▇▇ Hospitals Limited, a Texas limited partnership
(hereinafter called "Tenant").
W I T N E S S E T H:
- - - - - - - - - -
ARTICLE I
LEASED PREMISES, TERM, AND USE
1.1 Leased Premises.
(a) Subject to and upon the terms hereinafter set forth, and in
consideration of the sum of Ten Dollars ($10.00), the premises, and the mutual
covenants set forth herein, the receipt and sufficiency of which are hereby
acknowledged, Landlord does hereby lease and demise to Tenant, and Tenant does
hereby lease and take from Landlord, those certain premises (the "Leased
Premises") in the office building (the "Building") to be constructed on that
certain tract or parcel of land located in Dallas County, Texas, more
particularly described on Exhibit A-1 (the "Project Land"), which Project Land
comprises a portion of a larger tract of land consisting of approximately 8.03
acres located in the northerly portion of the block bounded by Southern
Boulevard, ▇▇▇▇ Road, Alpha Road and ▇▇▇▇▇▇ Drive more particularly described on
Exhibit A-2 (the "Complex Land"), which Complex Land and any improvements
constructed thereon (including without limitation, the Parking Facility) shall
commonly be referred to as "Galleria North" (the "Complex"), such Leased
Premises being more particularly described as follows:
All of the Net Rentable Area (defined below) in the Building, as
determined pursuant to Section 1.1(c) below, subject to Section
1.3(c) below.
So long as Tenant is entitled to possession of the Leased Premises,
but subject to the provisions of this Lease, Tenant shall be entitled to the
following as appurtenances to the Leased Premises: the right to use (i) the
Parking Facility (defined in Section 1.1(b)) subject to, and in accordance with,
Section 3.4 hereof, (ii) the Communications Area (defined in Section 3.6)
subject to, and in accordance with, Section 3.6 hereof, (iii) for Tenant's
exclusive use (subject to the other provisions of this Lease), the restrooms on
floors leased entirely by Tenant, (iv) for Tenant's exclusive use (subject to
the other provisions of this Lease), the telephone and electric closets on
floors leased entirely by Tenant (however, in no event may such use by Tenant
interfere with Landlord's access to, and use of, such telephone and electric
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closets as deemed necessary by Landlord), (v) for Tenant's nonexclusive use
(subject to the other provisions of this Lease), the telephone and electric
closets on floors not leased entirely by Tenant (however, in no event may such
use by Tenant interfere with Landlord's access to, and use of, such telephone
and electric closets as deemed necessary by Landlord), (vi) the reserved parking
spaces to be located in the Building Garage (as defined in Section 1.1(b))
subject to, and in accordance with, Section 3.4 hereof, and (vi) in common with
Landlord and other tenants or occupants of the Building and the Complex, their
invitees and guests, and others as designated by Landlord from time to time, all
lobbies, driveways, sidewalks and other areas and facilities on the Project
Land, in the Building and other portions of the Complex from time to time
intended for the common use of tenants in the Building and the Complex as
determined by Landlord, and all rights and benefits appurtenant to, or necessary
or incidental to, the use and enjoyment of the Leased Premises by Tenant for the
purposes permitted by Section 1.4 hereof, including, but not limited to, the
right of Tenant, its employees and invitees, in common with Landlord and other
persons, to the benefits of (x) the REA (as defined in Section 11.4 hereof), and
(y) any other reciprocal easements and/or use agreements burdening and/or
benefitting the Project to the extent necessary or incidental to the use and
enjoyment of the Leased Premises for the purposes permitted by Section 1.4 and
Tenant's approval shall not be required for Landlord to enter into any such
future easement or use agreement, unless Tenant's express rights under this
Lease with respect to the Leased Premises are materially and adversely affected
thereby.
(b) The term "Net Rentable Area" shall mean the area or areas of
space within the Building determined as follows: (i) Net Rentable Area in the
case of a full floor leased to a single tenant is determined by measuring from
the inside surface of the outer pane of glass and extensions of the plane
thereof in non-glass areas to the inside surface of the opposite outer pane of
glass and extensions of the plane thereof in non-glass areas and shall include
all areas enclosed by such surfaces, excluding only Service Areas (defined
below) and General Common Areas (defined below), plus an allocation of the
square footage of the General Common Areas, and (ii) Net Rentable Area in the
case of a floor leased to more than one tenant (i.e., a multi-tenant floor)
shall include the total square footage of all floor areas enclosed by the inside
surface of the outer pane of glass and extensions of the plane thereof in
non-glass areas and by demising walls (measured from the midpoint of demising
walls), excluding only Service Areas and General Common Areas, plus an
allocation of the square footage of the Common Areas (defined below) and the
General Common Areas. In determining Net Rentable Area pursuant to (i) and (ii)
above, no deduction from Net Rentable Area shall be made for columns or
projections necessary to the Building.
The exact Net Rentable Area of the Initial Leased Premises shall be
determined in accordance with Section 1.1(c) below.
The term "Service Areas" shall mean the total square footage within
vertical penetrations such as (and measured from the midpoint of the walls
enclosing) Building stairs, elevator shafts, fire towers, flues, vents, stacks,
vertical pipe shafts, and vertical ducts; however, structural columns are not
included in Service Areas. Areas for the specific use of Tenant or other tenants
of the Building or installed at the request of Tenant or other tenants such as
special stairs or elevators are not included within the definition of Service
Areas.
-2-
The term "General Common Areas" shall mean the total square footage
within (and measured from the midpoint of the walls enclosing or from the inside
surface of the outer pane of glass enclosing, or extensions of the plane thereof
in non-glass areas) the Building's elevator machine rooms, main mechanical
rooms, loading dock facilities, telephone switch rooms, main electrical rooms,
public lobbies (including the main floor lobby of the Building), engineering,
security, postal and main cleaning areas, and other areas not leased or held for
lease within the Building but which are necessary or desirable for the proper
utilization of the Building or to provide customary services to the Building. It
is understood and agreed that all or part of the loading dock facilities may not
be located within the Building, but shall be included as a part of the General
Common Areas for purposes of this Lease. The allocation of the square footage of
the General Common Areas referred to in this Section 1.1 shall be equal to the
total square footage of the General Common Areas multiplied by a fraction, the
numerator of which is the Net Rentable Area of the Leased Premises (excluding
the allocation of the General Common Areas) and the denominator of which is the
total of all Net Rentable Area of space leased or held for lease as office space
or retail space contained in the Building (excluding the allocation of the
General Common Areas).
The term "Common Areas" shall mean the total square footage of all
areas within (and measured from the midpoint of the walls enclosing or from the
inside surface of the outer pane of glass enclosing, or extensions of the plane
thereof in non-glass areas) public corridors, elevator foyers, rest rooms,
mechanical rooms, janitor closets, telephone, electrical and equipment rooms,
and other similar facilities for the use of all tenants on the floor on which
the Leased Premises are located. The allocation of the square footage of the
Common Areas shall be equal to the total square footage of the Common Areas on
said floor multiplied by a fraction, the numerator of which is the Net Rentable
Area of the portion of the Leased Premises (excluding the allocations of General
Common Areas and Common Areas) located on said floor and the denominator of
which is the total of all Net Rentable Area on said floor (excluding the
allocations of General Common Areas and Common Areas).
The term "Usable Area" shall mean (A) in the case of a full floor
leased entirely by a single tenant, the Net Rentable Area of the floor area
minus the allocation of General Common Areas (it being agreed that Common Areas
are included in the calculations of Usable Area in the case of a full floor
leased entirely by a single tenant), and (B) in the case of a floor not leased
entirely by one tenant, the Net Rentable Area of the floor area minus the
allocation of General Common Areas and Common Areas which were included in Net
Rentable Area pursuant to this Section 1.1.
The term "Parking Facility" as used in this Lease shall mean (i) the
Garage Land (defined below) and the shared facilities for parking to be
constructed on the Garage Land to serve the Building and other buildings located
or to be located within the Complex (the "Adjacent Garage"), which Adjacent
Garage will be owned in common by Landlord and the owners of certain other
buildings to be constructed within the Complex, and which may be used by
Landlord and the tenants of the Building in common with others pursuant to, and
subject to the provisions of, the REA, (ii) any surface parking spaces to be
located on the Project Land which are a part of the Complex Common Areas and
which may be used by Landlord and the tenants of the Building in common with
others pursuant to and subject to the provisions of the REA, (iii) the parking
garage to be constructed under the Building (the "Building Garage"), and (iv)
any additional improvements now or hereafter located on the Project Land or
Garage Land related to parking and the foregoing facilities. Landlord and Tenant
acknowledge and agree that the Parking Facility is not included in the
definition of "Building" for purposes of this Lease.
-3-
The term "Garage Land" as used in this Lease shall mean that certain
tract or parcel of land located in Dallas County, Texas, more particularly
described on Exhibit A-3 upon which the Adjacent Garage will be constructed,
which Garage Land is owned in common by Landlord, and the owners of certain
other buildings to be constructed in the Complex, as more particularly set forth
in the REA.
The term "Loading Dock" as used in this Lease shall mean the loading
dock depicted on Exhibit A-4 adjacent to the Building to be constructed on such
portion of the Project Land depicted on Exhibit A-4, which Loading Dock is
intended to be used in common by the Building and the Phase II Building (defined
below), pursuant to, and subject to the provisions of, the REA.
The term "Phase II Building" as used in this Lease shall mean the
building which is proposed to be constructed within the Complex in the area
which is generally southwest of the Building, which Phase II Building shall not
be owned by Landlord.
The term "Project Plaza" as used in this Lease shall mean the
portion of the plaza area within the Project which is depicted on Exhibit A-4
and any improvements constructed therein from time to time.
The term "Complex Common Areas" as used in this Lease shall mean (i)
the Loading Dock and the portion of the Project Land upon which the Loading Dock
is located, (ii) the accessways depicted on Exhibit A-4 and all improvements
constructed therein from time to time, and (iii) the connecting pedestrian
skywalks, walkways and tunnels or other means of access in the Complex which are
depicted on Exhibit A-4 (excluding the ground level walkway between the Building
and the Adjacent Garage identified as the Tower I Grade Level Entrance in
Exhibit A-4).
The term "Project" as used in this Lease shall mean the Building,
the Building Garage, the Project Land, the Project Plaza, the Complex Common
Areas, the ground level walkway between the Building and the Adjacent Garage
identified as the Tower I Grade Level Entrance in Exhibit A-4, and any and all
additional improvements now or hereafter located on the Project Land that serve
the Building or the tenants of the Building generally (including, without
limitation, any connecting walkways, covered walkways, skywalks, tunnels, or
other means of access to and from the Building, the Adjacent Garage and the
other buildings to be located within the Complex and located on the Project
Land).
The term "Initial Leased Premises" as used in this Lease shall mean
the Leased Premises as of the Effective Date (as reduced, if any, pursuant to
Section 1.3 and as determined pursuant to Section 1.1(c)).
The term "floor" as used in this Lease shall mean all portions of
the Building located on a single level of the Building.
-4-
The term "Floor Group 1 Portion" as used in this Lease shall mean
that portion of the Net Rentable Area of the Initial Leased Premises located on
floors 3 through 6, inclusive, of the Building (subject to Section 1.3(c)
below).
The term "Floor Group 2 Portion" as used in this Lease shall mean
that portion of the Net Rentable Area of the Initial Leased Premises located on
floors 7 through 10, inclusive, of the Building (subject to Section 1.3(c)
below).
The term "Floor Group 3 Portion" as used in this Lease shall mean
that portion of the Net Rentable Area of the Initial Leased Premises located on
floors 11 through 14, inclusive, of the Building (subject to Section 1.3(c)
below).
The term "Floor Group 4 Portion" as used in this Lease shall mean
that portion of the Net Rentable Area of the Initial Leased Premises located on
floors 1, 2, 15 and 16, inclusive, of the Building (subject to Section 1.3(c)
below).
The term "Major Portion" as used in this Lease shall mean either the
Floor Group 1 Portion, the Floor Group 2 Portion, the Floor Group 3 Portion, or
the Floor Group 4 Portion, as the context requires; and the term "Major Portion
of the Initial Leased Premises" as used in this Lease shall mean all of that
portion of the Initial Leased Premises located entirely within a Major Portion
of the Building.
(c) Prior to the Rental Commencement Date (defined below) for each
floor in the Initial Leased Premises, Landlord shall execute and deliver to
Tenant a notice in the form of Exhibit E (the "Calculation Notice"), which shall
contain Landlord's calculation (together with an exhibit or other backup
supporting information reflecting the calculations made by the Landlord's
architect for the Base Building) of the exact number of square feet of Net
Rentable Area and Usable Area within each such floor as of such date. Tenant
shall have the right to object to the applicable Calculation Notice by
delivering written notice (including detailed objections to the calculations set
forth therein) to Landlord within thirty (30) days after Landlord delivers such
Calculation Notice to Tenant, failing which Tenant shall be deemed to have
agreed that the information contained in such Calculation Notice is correct and
Tenant shall be required to execute and deliver such Calculation Notice to
Landlord within five (5) Business Days after the expiration of such thirty (30)
day period. If Tenant objects to a Calculation Notice within said thirty (30)
day period, Landlord and Tenant shall work together to resolve their
differences, failing which the dispute shall be submitted to arbitration under
Article X. After such differences have been resolved between Landlord and Tenant
or by arbitration, Landlord and Tenant shall execute the Calculation Notice, or
to the extent necessary, a corrected version thereof. Upon the execution of a
Calculation Notice by Landlord and Tenant for all floors of the Initial Leased
Premises, the Net Rentable Area of all floors included in the Initial Leased
Premises as shown on the executed Calculation Notices shall replace the Net
Rentable Area of the Initial Leased Premises as set forth in Section 1.1(a)
hereof and shall be deemed to be the Net Rentable Area of the Initial Leased
Premises as of such date for all purposes under this Lease; provided, however,
the Net Rentable Area of the Initial Leased Premises shall not exceed 380,000
square feet or be less than 300,000 square feet, unless the Building Plans and
Specifications approved or deemed approved by Tenant pursuant to the provisions
of Section 1.3 hereof provide otherwise, in which event the Building Plans and
Specifications so approved or deemed approved by Landlord and Tenant shall
-5-
control (subject, in all events, to minor variations from the Building Plans and
Specifications approved or deemed approved by Tenant to the extent required in
this Lease resulting from actual construction and completion of the Initial
Leased Premises for occupancy so long as such work is performed in accordance
with the terms of this Lease). All payments of Rent (defined in Section 11.4
hereof) shall be made as and when required in this Lease, notwithstanding any
unresolved objections to any Calculation Notice. All payments of Base Rental
(defined in Section 2.2 hereof), Tenant's Forecast Additional Rental (defined in
Section 2.3(b) hereof) and Tenant's Additional Rental Adjustment (defined in
Section 2.3(d) hereof) shall be based upon the Calculation Notice as prepared by
Landlord and submitted to Tenant until such Calculation Notice (or a corrected
version thereof) has been executed by Landlord and Tenant, whereupon any
overpayment or any underpayment theretofore made shall be adjusted by increasing
or reducing, as the case may be, the next installment(s) of Base Rental coming
due by the amount of such underpayment or overpayment, as applicable (and,
except as provided in Section 2.3(e) herein, no interest or penalty shall be
applied thereto).
1.2 Term.
(a) Subject to and upon the terms and conditions set forth herein,
or in any exhibit hereto, the term of this Lease as to each floor comprising the
Initial Leased Premises shall commence on the Rental Commencement Date for said
floor, and the term of this Lease shall expire as to the entire Leased Premises
ten (10) years after the Commencement Date (defined in Section 1.2(b)) at 11:59
p.m. (the "Initial Term"). The Initial Term may be renewed and extended pursuant
to Section 9.1 (the Initial Term and, to the extent renewed and extended, any
such Renewal Terms [defined in Section 9.1] are hereinafter collectively called
the "Term").
(b) As used in this Lease, the term "Commencement Date" shall mean
the first (1st) day of the first (1st) full calendar month following the date
that the last Rental Commencement Date for all Major Portions of the Initial
Leased Premises has occurred; provided, however, if the Rental Commencement Date
for any Major Portion of the Initial Leased Premises has not occurred prior to
the last day of the twelfth (12th) full calendar month after the first Rental
Commencement Date for a Major Portion of the Initial Leased Premises, the
Commencement Date shall mean the first day of the first (1st) full calendar
month following the expiration of such twelve (12) calendar month period.
As used in this Lease, the term "Rental Commencement Date" for any
Major Portion of the Initial Leased Premises shall mean, subject to the
provisions of Sections 1.2(c), 1.2(d) and 2.5(c) hereof, the later to occur of
(i) the Base Building Completion Date (defined below) for such Major Portion, or
(ii) the earlier to occur of (x) the date that is five (5) Business Days
following the Tenant Improvements Completion Date (defined in Section 11.4
hereof) for such Major Portion, or (y) the completion by Tenant of the
installation of substantially all furniture and equipment in such Major Portion
in the Initial Leased Premises not included in the construction of the Tenant
Improvements (defined in Section 11.4) and of substantially all other moving and
initial occupancy activities of Tenant (but not necessarily the commencement of
business by Tenant); provided, however, the Rental Commencement Date as to any
Major Portion of the Initial Leased Premises shall be accelerated by any actual
delays in achieving the Rental Commencement Date as to such Major Portion of the
Initial Leased Premises caused by Tenant Delays (defined in Section 11.4 hereof)
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and Tenant Improvement Delays (defined in Section 11.4 hereof); and provided
further, however, in no event (except as provided in Section 1.2(c) below) shall
the Rental Commencement Date occur for any Major Portion prior to November 1,
1999. Notwithstanding the foregoing, if the Rental Commencement Date is
determined under subsection (b)(ii)(x) above, during the five (5) Business Day
period following the Tenant Improvements Completion Date and prior to the Rental
Commencement Date, Tenant shall pay Tenant's Additional Rental (defined in
Section 2.3 hereof) with respect to the applicable Major Portion.
As used in this Lease, the "Base Building Completion Date" with
respect to any Major Portion of the Initial Leased Premises shall mean the first
date on which all of the following have occurred with respect to such Major
Portion of the Initial Leased Premises:
(i) the exterior curtain wall and window glass shall be
substantially complete (except for hoistways) to the extent necessary for
such Major Portion of the Initial Leased Premises to be water-tight;
(ii) the services described in Section 3.1 are ready and
capable of being furnished to such Major Portion of the Initial Leased
Premises;
(iii) the toilet rooms on all floors of such Major Portion of
the Initial Leased Premises shall be substantially completed (defined in
Section 11.4 hereof) and operational;
(iv) All passenger elevator cabs to such Major Portion will be
operational and finished to Building Standard (defined in Exhibit C-1)
condition, except up to two (2) passenger elevator cabs in such Major
Portion will be operational but unfinished. The operational but unfinished
passenger cab(s) and the freight cab (if operational) in each Major
Portion shall be for the exclusive use by Landlord and its contractors.
Tenant acknowledges that the unfinished elevator cab(s) serving such Major
Portion of the Initial Leased Premises will not be operational for a
period of time following the completion of the Tenant Improvements
(defined in Section 11.4 hereof) to permit Landlord to finish such
elevator cabs to Building Standard condition. Notwithstanding the
foregoing, Tenant and its contractors may utilize the freight elevator (if
operational), provided (i) Tenant schedules in advance such use with
Landlord, (ii) such use does not unreasonably interfere with Landlord's
and its contractors' use of such freight elevator or their construction
activities in the Building, and (iii) such use shall in all events comply
with the terms of this Lease relating to the use of the freight elevator
by Tenant;
(v) the Building Garage and the Adjacent Garage, sufficient
for Tenant's parking requirements for such Major Portion of the Initial
Leased Premises in accordance with Section 3.4, and access thereto from
the Building and public streets shall be substantially completed;
(vi) the floors, ceilings and walls in the public entrances to
the Building and the ground floor Building lobby serving the Initial
Leased Premises shall be completed to the extent necessary to provide
Tenant and its employees and visitors safe (and no hard hats shall need to
be worn by Tenant or any of its employees and visitors), reasonably
-7-
presentable (Landlord being permitted to erect dry wall to partition
unfinished areas from the sight of Tenant and its employees and visitors
and to paint such partitions so as to make such areas reasonably
presentable as herein required) and unimpeded access to and from such
Major Portion of the Initial Leased Premises;
(vii) the areas located within the Project Plaza intended to
provide access to and from the Building shall be substantially completed,
however, landscaping and any non-access related improvements to be located
within the Project Plaza need not be installed or substantially complete;
(viii) except as specifically provided to the contrary in this
Section 1.2(b), the Base Building Improvements (excluding item 25 listed
on Exhibit C-1) actually located, or pursuant to Exhibit C-1, intended to
be located, in such Major Portion of the Initial Leased Premises have been
substantially completed;
(ix) a certificate of occupancy or other governmental
authorization shall have been issued for the shell of the Building to the
extent necessary to not preclude Tenant from obtaining a certificate of
occupancy or other permit required for Tenant's use of such Major Portion
of the Initial Leased Premises for the purposes set forth in Section 1.4
hereof upon completion of its Tenant Improvements; and
(x) Landlord's architect for the Base Building (defined in
Section 11.4 hereof) certifies that (i) through (ix) above have occurred
pursuant to the form of Architect's Certificate attached hereto as Exhibit
Q.
(c) Notwithstanding anything to the contrary contained in this
Section 1.2, Tenant may, at its sole option, elect to occupy for business
purposes any floor in a Major Portion of the Initial Leased Premises prior to
the Rental Commencement Date for such Major Portion of the Initial Leased
Premises unless said occupancy, as determined by Landlord in its reasonable
discretion, would (i) cause undue interference or delay in Landlord's completing
the remainder of the Building or Leased Premises, or (ii) be unlawful or unsafe
in light of the status of the construction of the Building. The occupancy for
business purposes of any portion of a floor shall be deemed to be occupancy of
the entire floor. As to the floor occupied by Tenant for business purposes, the
Rental Commencement Date shall be deemed to have occurred, the term of the Lease
shall be deemed to have commenced as to such floor, and the terms of this Lease
shall be applicable thereto as of the date of such occupancy, but in no event
shall the Rental Commencement Date be deemed to have occurred or the Initial
Term be deemed to have commenced as to the remainder of such Major Portion of
the Initial Leased Premises as a result thereof.
(d) As used herein, "Scheduled Completion Date" shall mean for each
Major Portion of the Initial Leased Premises the following date for such
indicated Major Portion:
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Major Portion Scheduled Completion Date
------------- -------------------------
Floor Group 1 Portion November 6, 1999
Floor Group 2 Portion November 20, 1999
Floor Group 3 Portion December 6, 1999
Floor Group 4 Portion December 20, 1999
; provided, however, for all purposes of this Lease, the Scheduled Completion
Date for each Major Portion shall be extended by one (1) day for each day of
Tenant Delays, Tenant Improvement Delays and Force Majeure Delays.
As used herein, "Outside Date" for each Major Portion of the Initial Leased
Premises shall mean the following date for such indicated Major Portion:
Major Portion Outside Date
------------- ------------
Floor Group 1 Portion February 4, 2000
Floor Group 2 Portion February 20, 2000
Floor Group 3 Portion March 6, 2000
Floor Group 4 Portion March 20, 2000
; provided, however, for all purposes of this Lease, the Outside Date for each
Major Portion shall be extended by one (1) day for each day of Tenant Delays,
Tenant Improvement Delays and Force Majeure Delays.
As used herein, "Major Portion Anniversary Date" for each Major
Portion of the Initial Leased Premises shall mean the following dates for such
indicated Major Portion:
Major Portion Major Portion Anniversary Date
------------- ------------------------------
Floor Group 1 Portion November 6, 2000
Floor Group 2 Portion November 20, 2000
Floor Group 3 Portion December 6, 2000
Floor Group 4 Portion December 20, 2000
; provided, however, the Major Portion Anniversary Date shall be extended by one
(1) day for each day of Tenant Delays, Tenant Improvement Delays and Force
Majeure Delays.
Landlord shall have no liability to Tenant for delays in
constructing, or for failure to construct, the Project, the Adjacent Garage, the
Base Building Improvements or the Tenant Improvements except as provided below
in this subsection (d). Tenant's sole and exclusive remedies for any such delays
or failures are as follows (Tenant hereby waiving all other remedies at law and
in equity):
(i) If the Rental Commencement Date for any floor of the
Initial Leased Premises does not occur on or before the Outside Date for
the Major Portion of which such floor is a part, the Pro Rata Floor Carry
Costs (defined below) incurred by Landlord after the Scheduled Completion
Date for such floor shall not be included in Project Costs for purposes of
this Lease;
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(ii) If the Rental Commencement Date for any floor of the
Initial Leased Premises does not occur on or before the Outside Date for
Floor Group 4 Portion, Landlord shall be obligated to pay to Tenant a
monthly amount with respect to each such floor (or a prorata portion
thereof for any partial month) from the Outside Date for the Floor Group 4
Portion through the earlier to occur of (A) the Rental Commencement Date
for such floor, or (B) the Major Portion Anniversary Date for the Major
Portion of which such floor is a part, One and No/100 Dollars ($1.00) for
each square foot of Net Rentable Area comprising such floor (collectively,
the "Delay Payments"). Landlord shall make such Delay Payments to Tenant
for each calendar month (or prorata portion thereof) on the fifteenth
(15th) day of the following calendar month; and
(iii) If the Rental Commencement Date for any floor of the
Initial Leased Premises does not occur on or before the Major Portion
Anniversary Date for the Major Portion of which such floor is a part,
Tenant shall have the right to terminate this Lease only as to such floor
which fails such test by delivering notice to Landlord within ten (10)
days after the Major Portion Anniversary Date for the Major Portion of
which such floor is a part, and in such event this Lease shall
automatically terminate as to such floor as of the date of Tenant's
notice, such floor shall no longer be a part of the Initial Leased
Premises or Leased Premises for purposes of this Lease, and Landlord shall
have no liabilities to Tenant arising therefrom or hereunder; provided,
however, (A) the aggregate costs of constructing and developing the Base
Building for such floor shall not be included in Project Costs (which
amount to be deducted from Project Costs shall equal the product of (x)
total Project Costs excluding the entire Improvements Allowance,
multiplied by (y) a fraction, the numerator of which is one and the
denominator of which is the total number of floors in the Building); (B)
such floor shall not be a part of the Initial Leased Premises (defined in
Section 2.5) for purposes of the Improvements Allowance under Section 2.5;
therefore, the aggregate Improvements Allowance available to Tenant shall
be reduced accordingly (and any necessary adjustments between Landlord and
Tenant shall be made accordingly); and (C) Landlord shall pay Tenant any
Delay Payments (as defined in subsection (ii) above) in accordance with
the provisions of subsection (ii) that have accrued as to such floor prior
to the date of such termination in accordance with this subsection (iii),
and upon such termination, no further Delay Payments shall accrue under
subsection (ii) with respect to such floor. If Tenant shall have failed to
exercise its rights to terminate this Lease as to any floor prior to the
Major Portion Anniversary Date for such Major Portion of which such floor
is a part, Tenant's right to terminate this Lease as to such floor as
provided in this subsection (iii) shall automatically terminate and be of
no further force and effect, and Tenant shall have waived forever such
right to terminate this Lease as to such floor pursuant to this subsection
(iii).
As used herein, "Pro Rata Floor Carry Costs" for each floor of the
Initial Leased Premises shall mean the product of (aa) the total interest which
accrues on any outstanding loan or equity obtained by Landlord to fund Project
Costs after the applicable Scheduled Completion Date for the Major Portion of
which such floor is a part, multiplied by (bb) a fraction, the numerator of
which is one (1) and the denominator of which is the total number of floors in
the Building.
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Notwithstanding anything to the contrary contained in this Lease,
for all purposes of this subsection (d), (A) if the Rental Commencement Date is
determined for any portion of the Initial Leased Premises pursuant to subsection
(ii)(x) of the definition thereof, the Rental Commencement Date shall be deemed
to have occurred without the expiration of the five (5) Business Days referred
to therein, and (B) the Rental Commencement Date shall be determined on a
floor-by-floor basis (and not on a Major Portion basis).
Upon satisfaction of Landlord's obligations under this Section
1.2(d), and at Landlord's request, Tenant shall execute an amendment to this
Lease evidencing that Landlord's obligations hereunder are fully satisfied.
(e) After each Rental Commencement Date for each Major Portion of
the Initial Leased Premises, Landlord shall submit to Tenant and Tenant shall
execute and deliver to Landlord within twenty (20) days of Tenant's receipt
thereof from Landlord, a declaration (in the form attached hereto as Exhibit F)
(the "Commencement Declaration") to confirm the occurrence of the Rental
Commencement Date(s) for such Major Portion of the Initial Leased Premises (or
floors thereof). Tenant shall have fifteen (15) days to give written notice to
Landlord objecting to a Commencement Declaration, failing which Tenant shall be
deemed to have agreed such Commencement Declaration is correct. If, however,
Tenant objects to such Commencement Declaration within such fifteen (15) day
period, Landlord and Tenant shall work together to resolve their differences,
failing which such matter shall be submitted to arbitration pursuant to Article
X. After such differences have been resolved, Landlord and Tenant shall execute
and deliver the original Commencement Declaration or, to the extent necessary, a
corrected version thereof. All payments of Rent shall be made as and when
required in this Lease, notwithstanding any unresolved objections to a
Commencement Declaration. All such payments shall be based upon Landlord's
determination of the applicable Rental Commencement Date set forth in the
Commencement Declaration prepared by Landlord and submitted to Tenant until such
objections have been finally resolved and such Commencement Declaration (or a
corrected version thereof) has been executed by Landlord and Tenant, whereupon
any overpayment or any underpayment theretofore made shall be adjusted by
increasing or reducing, as the case may be, the next installment(s) of Rent
coming due by the amount of such underpayment or overpayment, as applicable
(and, except as provided in Section 2.3(e) herein, no interest or penalty shall
be applied thereto).
1.3 Base Building Design.
(a) For purposes of this Section 1.3, the term "Design Parameters"
shall mean:
(i) the general location and design of the Building, Building
Garage, Loading Dock, Adjacent Garage, Project Plaza and Complex Common
Areas as to aesthetics and functionality only, and the overall quality of
the materials used in constructing the Building;
(ii) the selection of materials for the exterior skin of (A)
the Building, (B) Loading Dock, (C) Adjacent Garage, (D) Project Plaza and
(E) Complex Common Areas;
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(iii) the size, configuration and floor-to-floor heights of
the ground floor Building lobby and the floor plates comprising the
Initial Leased Premises; provided, however, Tenant acknowledges that (A)
the size of the floors shall range from approximately 20,542 to
approximately 24,064 square feet of Net Rentable Area, and (B) the total
square feet comprising the Initial Leased Premises shall be subject to the
provisions of Sections 1.1(c) and 1.3(c);
(iv) the design of any exterior signage identifying the
Building;
(v) changes to the specific design parameters contained in
Exhibit C-1 or Exhibit C-2 hereto;
(vi) the location and design of the enclosed air conditioned
skybridge from the Building to the Adjacent Parking Garage; and
(vii) the design, configuration and operating characteristics
of the elevators of the Building and the Adjacent Parking Garage.
Notwithstanding the foregoing, the foregoing Design Parameters and
all of Tenant's approval rights under this Section 1.3 shall be subject to the
following conditions:
(1) Tenant's approval shall not be required for (a) structural
elements of the design of the Building (except for Tenant's specific floor
load bearing requirements within the Initial Leased Premises), Loading
Dock, Building Garage, Adjacent Garage, Project Plaza and Complex Common
Areas, and (b) changes required to conform with Legal Requirements; and
(2) Tenant recognizes that the plans for the Loading Dock,
Adjacent Garage and Complex Common Areas are subject to the approval of
other owners of portions of the Complex pursuant to the REA; therefore, to
the extent Tenant's approval is required under Section 1.3, Tenant agrees
to reasonably cooperate in approving design elements relating to those
improvements so long as the cost of completing such improvements is not
materially increased by any such change required by such owners.
(b) Landlord and Tenant have jointly selected HaldemanPowell +
Partners to design the Project.
(c) The Building is currently being designed to contain
approximately 378,000 square feet of Net Rentable Area. Tenant may elect,
however, at any time prior to August 1, 1998 (the "Reduction Date"), to reduce,
on a full floor basis only, the Net Rentable Area to be contained within the
Initial Leased Premises (and consequently the Building) to no less than 300,000
square feet by providing Landlord with written notice (the "Reduction Notice")
of Tenant's election to so reduce the size of the Initial Leased Premises on or
before the Reduction Date, which Reduction Notice shall specify the reduced
number of square feet of Net Rentable Area Tenant desires to be contained within
the Initial Leased Premises. Tenant shall be obligated to pay, and to reimburse
Landlord for, any out-of-pocket costs reasonably incurred by Landlord to third
parties to accommodate Tenant's reduction request (including, without
limitation, architectural and engineering costs and costs of materials), and
-12-
such costs shall not be included within the term "Project Costs" for the
purposes of this Lease. Notwithstanding anything to the contrary contained
herein, the Building will not be designed or developed to contain more than
380,000 square feet of Net Rentable Area unless Tenant provides a Reduction
Notice, in which event the Building will not be designed or developed to contain
more than the number of square feet of Net Rentable Area specified by Tenant in
its Reduction Notice, unless the Building Plans and Specifications approved or
deemed approved by Tenant pursuant to the provisions of this Section 1.3 provide
otherwise, in which event the Building Plans and Specifications so approved or
deemed approved by Landlord and Tenant shall control (subject, in all events, to
minor variations to the Building Plans and Specifications approved or deemed
approved by Tenant to the extent required in this Lease resulting from actual
construction and completion of the Initial Leased Premises for occupancy so long
as such work is performed in accordance with the terms of this Agreement).
Additionally, in the event Tenant elects to reduce the Net Rentable
Area to be contained within the Initial Leased Premises pursuant to this
subsection (c), the Major Portions shall be adjusted as follows:
(i) In the event Tenant elects to reduce only one (1) full
floor from the Initial Leased Premises, then (a) the Floor Group 1 Portion
shall be deemed to include floors 3 through 6, inclusive, of the Building,
(b) the Floor Group 2 Portion shall be deemed to include floors 7 through
10, inclusive, of the Building, (c) the Floor Group 3 Portion shall be
deemed to include floors 11 through 13, inclusive, of the Building, and
(d) the Floor Group 4 Portion shall be deemed to include floors 1, 2, 14
and 15 of the Building;
(ii) In the event Tenant elects to reduce only two (2) full
floors from the Initial Leased Premises, then (a) the Floor Group 1
Portion shall be deemed to include floors 3 through 6, inclusive, of the
Building, (b) the Floor Group 2 Portion shall be deemed to include floors
7 through 9, inclusive, of the Building, (c) the Floor Group 3 Portion
shall be deemed to include floors 10 through 12, inclusive, of the
Building, and (d) the Floor Group 4 Portion shall be deemed to include
floors 1, 2, 13 and 14 of the Building; and
(iii) In the event Tenant elects to reduce three (3) full
floors from the Initial Leased Premises, then (a) the Floor Group 1
Portion shall be deemed to include floors 3 through 5, inclusive, of the
Building, (b) the Floor Group 2 Portion shall be deemed to include floors
6 through 8, inclusive, of the Building, (c) the Floor Group 3 Portion
shall be deemed to include floors 9 through 11, inclusive, of the
Building, and (d) the Floor Group 4 Portion shall be deemed to include
floors 1, 2, 12 and 13 of the Building.
(d) Landlord and Tenant have approved the preliminary Building Plans
and Specifications which are attached to this Lease as Exhibit S ("Preliminary
Plans and Specifications"). Tenant's approval shall also be required (which
approval (i) shall not be unreasonably withheld, and (ii) may not be withheld to
the extent the Final Bid Specifications are consistent with the Preliminary
Plans and Specifications), as to the final Building Plans and Specifications
delivered to the General Contractor for bid ("Final Bid Specifications").
Tenant's approval shall be deemed given unless Tenant objects to such Final Bid
-13-
Specifications in writing delivered to Landlord within five (5) Business Days of
receipt thereof. Any requests by Tenant to change the Preliminary Plans and
Specifications prior to the submission of the Final Bid Specifications to the
General Contractor shall be subject to Landlord's reasonable approval. If Tenant
requests any changes to the Preliminary Plans and Specifications prior to the
submission of the Final Bid Specifications to the General Contractor and any
such change would result in a delay of the Building Construction Schedule or
Tenant Construction Schedule, Landlord shall not be required to make such change
unless (x) Tenant agrees in writing that the entire delay in the Building
Construction Schedule or Tenant Construction Schedule resulting from such
requested change will constitute a Tenant Delay (as to the Building Construction
Schedule) and a Tenant Improvement Delay (as to the Tenant Improvement Schedule)
for all purposes of this Lease, (y) the total of (i) the aggregate of the number
of days of Tenant Delays and Tenant Improvement Delays Tenant has previously
agreed to in writing under this sentence, subsection (e) below, and the last
sentence of Section 5.1(a), plus (ii) the General Contractor's or Tenant
Contractor's (as applicable) estimate of the number of days of the subject
delay, is less than ninety (90) days, and (z) Landlord otherwise approves such
change as provided above. At such time as Landlord receives bids from the
General Contractor, Landlord will work with Tenant in selecting from the various
pricing alternates contained in the Final Bid Specifications; however, all
selections must be made within ten (10) days of receipt of the bids. Landlord
shall enter into a guaranteed maximum price contract with the General Contractor
and the guaranteed maximum price shall be the price bid by General Contractor
and all subcontractors (taking into account the pricing alternates selected).
(e) After Tenant's approval or deemed approval of the Final Bid
Specifications as aforesaid, Tenant's approval, which approval shall not be
unreasonably withheld, shall be required for any material changes to, material
deviations from, or material additions to, the approved Final Bid Specifications
as to the Design Parameters only; provided, however, Tenant may, in its sole
discretion, withhold its approval of any such material change, material
deviation or material addition which affects the aesthetics of the Building,
unless the Building Construction Schedule or Tenant Construction Schedule is
adversely affected thereby. Notwithstanding the foregoing, if (x) Tenant agrees
in writing that the entire delay in the Building Construction Schedule or Tenant
Construction Schedule resulting from such failure to approve such material
change, material deviation or material addition in its sole discretion will
constitute a Tenant Delay (as to the Building Construction Schedule) and a
Tenant Improvement Delay (as to the Tenant Construction Schedule) for all
purposes of this Lease, and (y) the total of (i) the aggregate of the number of
days of Tenant Delays and Tenant Improvement Delays Tenant has previously agreed
to in writing under this sentence, subsection (d) above, and the last sentence
of Section 5.1(a), plus (ii) the General Contractor's or Tenant Contractor's (as
applicable) estimate of the number of days of the subject delay, is less than
ninety (90) days, then Tenant may withhold its approval in its sole discretion
as to such material change, material deviation or material addition as to such
Design Parameter. As used in this Lease, the phrases "material change,"
"material deviation" and "material addition" shall include any change to,
deviation from, or addition to the Design Parameters which individually causes
the costs of constructing the Base Building to be increased or decreased by more
than $100,000, or which, when aggregated with all previous material changes to,
material deviations from, and/or material additions to the Design Parameters not
previously approved by Tenant, causes the costs of constructing the Building to
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be increased or decreased by more than $750,000. It is Landlord's and Tenant's
intent for Tenant to have approval over material changes, material deviations,
and material additions to the Base Building after the Final Bid Specifications
have been approved pursuant to subsection (d) above (x) which affect Project
Costs to the extent provided in the immediately preceding sentence, and (y) to
the overall quality of materials used in constructing the Building (as this
clause (y) is a Design Parameter). Tenant's consent to any material change,
material deviation or material addition over which Tenant has approval shall be
deemed given unless Tenant objects to such change in writing delivered to
Landlord within five (5) days after receipt of the proposed revisions.
(f) With respect to Section 1.3(d) and (e) above, Tenant agrees to
notify Landlord in writing as soon as reasonably possible of Tenant's objections
to any matter over which Tenant has approval. Further, Tenant agrees to
cooperate with Landlord and Landlord agrees to cooperate with Tenant to the end
that the Final Bid Specifications and any Design Parameter (as applicable) may
be mutually approved by the parties at the earliest date practicable.
(g) Landlord agrees to deliver to Tenant copies of all fully
executed change orders with respect to the Base Building. Additionally, Tenant
shall be permitted to attend all monthly project construction meetings.
1.4 Use.
(a) The Leased Premises are to be used and occupied by Tenant (and
its permitted assignees and subtenants) only for general business office
purposes and for such other lawful purposes as are consistent with uses of
office space in Comparable Buildings, and for no other purpose whatsoever.
Without limiting the foregoing, subject to Legal Requirements (defined in
Section 11.4 hereof) and subject to the provisions of Section 5.2 hereof
governing the installation of improvements necessary for the following uses,
Tenant may maintain (for use only by Tenant and its employees and invitees [but
in no event shall any such facility be open for use by the general public or on
a membership basis]) in the Leased Premises to the extent only incidental to
Tenant's business in the Leased Premises: (a) accounting facilities, (b)
libraries, (c) coffee bars, (d) support staff facilities (including without
limitation, word processing and copy facilities), (e) lunchrooms (including
vending machines and microwave ovens for use by Tenant and its employees and
invitees, subject, however, to Landlord's approval of the location, layout,
design, condition, visibility and venting thereof), (f) storage space incidental
to general business office purposes (but not as a principal use for such space),
(g) audio visual, closed circuit television, radio, electronic communication,
and computer facilities, and (h) executive and other dining areas (including
kitchen and support therefor) solely for Tenant's employees (except for
occasional use by Tenant's business guests but not as the primary purpose)
subject, however, to Legal Requirements and to Landlord's approval, which
approval shall not be unreasonably withheld, as to the location, design,
visibility and venting thereof).
(b) In all events, the Leased Premises shall not be used for any
purpose which would (i) adversely affect the exterior appearance of the Building
or Project, (ii) cause the then existing structural load bearing capacity to be
exceeded, (iii) violate any Legal Requirements, (iv) create unreasonable noise,
(v) create unreasonable elevator loads, (vi) adversely affect ventilation in
-15-
other areas of the Building or Project (including without limitation, the
creation of offensive odors), (vii) except for general office use and the
Special Public Uses (defined below), be visible from the exterior of, or public
areas of, the Building or the Complex, (viii) otherwise unreasonably interfere
with Complex operations or other tenants of the Complex, or (ix) adversely
affect the Base Building Systems (defined in Section 11.4) or the structural
integrity of the Building or Complex.
(c) Without limiting the foregoing, Tenant agrees that Tenant will
not use any part of the Leased Premises for any of the following uses (except to
the extent specifically permitted in Section 1.5 and subject in all events to
the restrictions in Section 1.5): health care services provided directly to
patients or other members of the general public, telephone or telegraph agency,
radio, television or other public communication station (except as provided in
Section 3.6 hereof), employment agency, public restaurant or bar, retail,
wholesale or discount shop for sale of merchandise, retail service shop, school
or classroom (except as incidental to office uses but not as the principal use
thereof), or governmental or quasi-governmental bureau, department or agency.
1.5 Special Uses.
(a) Notwithstanding anything in Section 1.4(a) or (c) above to the
contrary, Tenant may, subject to the provisions of this Section 1.5, use the
portions of the Leased Premises identified below to provide the facilities
described below ("Special Private Uses") solely to Tenant and its employees, but
in no event shall any of such facilities be open for use by members of the
general public or on a membership basis:
(i) Up to 5,000 square feet of Net Rentable Area in the Leased
Premises may be used by Tenant for conference and/or meeting facilities
(and Tenant and its employees shall be permitted to invite business guests
to meetings held in such facilities for the purposes of conducting
Tenant's business but Tenant shall not be permitted to charge for the use
of such facilities); and
(ii) Up to 3,000 square feet of Net Rentable Area in the
Leased Premises may be used by Tenant for exercise facilities.
(b) Notwithstanding anything in Section 1.4(a) or (c) above to the
contrary, Tenant may, subject to the provisions of this Section 1.5, use the
portions of the Leased Premises identified below to provide the facilities
described below ("Special Public Uses") to Tenant and its employees, and any
time such facilities are open for use by Tenant, such facilities shall be open
to members of the general public:
(i) Up to 25 square feet of Net Rentable Area in the Leased
Premises may be used by Tenant for the use and operation of an automated
teller machine;
(ii) Up to 3,000 square feet of Net Rentable Area in the
Leased Premises may be used by Tenant for the operation of branch banking
facilities;
(iii) Up to 2,000 square feet of Net Rentable Area in the
Leased Premises may be used by Tenant for the operation of a retail sundry
shop; and
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(iv) Up to 4,000 square feet of Net Rentable Area in the
Leased Premises may be used by Tenant for the operation of a restaurant
(provided, however, no beer, wine, liquor or other alcoholic beverages may
be served therein or in connection therewith).
(c) Notwithstanding anything set forth in this Section 1.5 to the
contrary, Tenant may not use more than an aggregate of 17,025 square feet of Net
Rentable Area in the Leased Premises for Special Private Uses and/or Special
Public Uses (collectively, "Special Uses").
(d) If Tenant desires to sublease all or any portion of the Leased
Premises to a subtenant for any of the Special Uses, Tenant must comply with the
provisions of Sections 1.5 and 8.1 as to each such sublease (except that in all
events the approval of the operator may be withheld in Landlord's sole
discretion as provided in subsection (e) below).
(e) Tenant shall, at its sole cost and expense, ensure that any
Special Uses engaged in by Tenant in the Leased Premises comply with all Legal
Requirements. Additionally, (i) all Special Uses shall be subject to the
provisions of Section 1.4(b) and the provisions of Section 5.2 hereof governing
the installation of improvements necessary for any Special Uses, except that the
plans and specifications for any such improvements shall be subject to
Landlord's approval, which, except as provided to the contrary in Section 1.5(e)
below, shall not be unreasonably withheld, (ii) Tenant shall not engage in any
use (including, without limitation, any Special Use) in the Leased Premises
which (A) would violate the terms of the REA (however, the uses which constitute
the Special Uses are not specifically prohibited by the REA so long as they are
operated and maintained in accordance with the REA), or (B) would require
additional parking spaces in the Parking Facility pursuant to Legal Requirements
or the terms of the REA and Tenant cannot satisfy such spaces with its Assigned
Parking Permits and Unassigned Parking Permits, (iii) any parking required in
connection with any Special Use shall be provided from the Assigned Parking
Permits and the Unassigned Parking Permits (defined in Section 3.4) to which
Tenant is entitled under Section 3.4 hereof, and (iv) any operator engaged by
Tenant (or any permitted sublessee or assignee of Tenant) to perform or provide
any of the Special Uses shall be subject to Landlord's prior written approval,
which Landlord may withhold in its sole discretion. Without limiting the
generality of the foregoing, Tenant recognizes that the Building is being
operated and maintained by Landlord as a first-class office building, and Tenant
agrees that each sublease entered into by Tenant shall contain the following
provisions and Tenant agrees to exercise reasonable efforts to enforce such
provisions at all times during the term of such subleases: at all times any
Special Uses conducted at, through and/or from the Leased Premises, and, if
applicable, the kind and quality of merchandise and/or services to be offered in
the conduct thereof, will be first class in every respect, and, to the extent
applicable with respect to any particular Special Use, the sales methods
employed, as well as all elements of merchandising, display and advertising,
will be in conformity with the standards of practice obtained among first class
stores, shops and concerns dealing in the same or similar merchandise or
conducting a similar business in other first-class office buildings located in
the North Dallas Area (defined in Section 11.4 hereof). In no event may Tenant
conduct any auction, fire, distress, going out of business, liquidation,
bankruptcy or similar sales in any Special Use Area, the Leased Premises or the
Building.
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(f) In the event Tenant desires to use all or any portion of the
Leased Premises in the Building lobby for any Special Use, the exact location
thereof shall be subject to Landlord's prior written approval (which Landlord
may withhold in its reasonable discretion) and to the provision of the following
sentence. Notwithstanding anything to the contrary contained herein, any Tenant
exercise facility permitted hereunder shall not be located in the Building lobby
or elsewhere on floor 1, (ii) any branch banking facilities or restaurant
permitted hereunder shall be located only on floor 1 or floor 2, and (iii) any
automated teller machine permitted hereunder shall be located only on floor 1 or
floor 2.
(g) Upon the expiration or earlier termination of this Lease, at
Landlord's option, Tenant shall, at Tenant's sole cost and expense, remove any
improvements (other than Non-Removable Improvements [defined in Section 5.2(d)])
installed in any portion of the Leased Premises in connection with any Special
Uses and comply with the provisions of Section 5.2(d) with respect thereto.
(h) In the event Tenant elects to engage in any Special Uses in any
portion(s) of the Leased Premises, then with respect to such portion(s) (each a
"Special Use Area") Tenant shall provide (or arrange for the provision of) the
following services to such Special Use Areas (and Landlord shall not be
obligated to provide the Building Standard Services in Section 3.1(a)(iv) or
(xii) to the Special Uses areas); provided, however, that Tenant may, upon
thirty (30) days written notice to Landlord, request that Landlord perform all
or part of the following services on Tenant's behalf, in which event, the costs
incurred by Landlord in performing such services shall (i) so long as Tenant is
leasing one hundred percent (100%) of the Net Rentable Area in the Building, be
included in Operating Expenses, and (ii) during any time Tenant is not leasing
one hundred percent (100%) of the Net Rentable Area in the Building, be
separately invoiced to Tenant, and Tenant shall remit the same to Landlord
within ten (10) days of receipt of Landlord's invoice:
(i) Cleaning and maintenance of each Special Use Area by
Tenant, including, if applicable, the demising storefronts, in a manner
reasonably satisfactory to Landlord. Landlord shall have the right to
inspect each Special Use Area upon reasonable notice to Tenant and to
reasonably require Tenant to provide additional cleaning, if necessary.
(ii) Regularly removing all trash and wet garbage from each
Special Use Area to the pick up area designated by Landlord, at Tenant's
cost, during the hours established by Landlord from time to time and
subject to scheduling and other rules and regulations adopted by Landlord
from time to time which are compatible with business operations of
Landlord and the other tenants of the Complex. All trash and wet garbage
must be covered and stored in such a manner so as to prevent the emanation
of odors therefrom into the Leased Premises or the Building.
(iii) Maintaining the interior of each Special Use Area,
including fixtures and equipment located therein, in good repair and in a
neat, clean, safe, sanitary and otherwise first-class condition consistent
with the standards of the Building.
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(iv) Provide for the proper disposal (and not by disposal into
the Project's sewer system) of materials and chemicals used by Tenant in
connection with the permitted use of the Special Use Areas in accordance
with this Section 1.5 and Section 4.5 below. Tenant will promptly remove
any debris in the surrounding areas resulting from its operations.
(v) Taking all actions necessary to prevent odors in the
Special Use Areas from escaping therefrom. Tenant's equipment contained
therein must at all times be adequately ventilated and filtered and any
odors therefrom must be exhausted and dispersed in a manner reasonably
acceptable to Landlord.
(vi) Treating the Special Use Areas and their exterior
perimeters as often as necessary to keep them free and clear of all pests,
including rodents and insects. If Tenant fails to keep the Special Use
Areas free and clear of pests, Landlord, upon the giving of five (5) days'
prior notice, may cause the Special Use Areas to be treated for pest
control.
(vii) Keeping the Special Use Areas in a clean and orderly
state of repair and, if Landlord reasonably requests that Tenant clean the
Special Use Areas or change any part of Tenant's general operation or
appearance as it relates to cleanliness and orderliness, Tenant agrees to
comply with such request within ten (10) days after receipt of such
request.
(viii) Keeping any display windows, including window or shadow
boxes, if applicable, in the Special Use Areas dressed and illuminated,
and permitted signs and exterior lights well lighted during Building
Operating Hours, all of which display windows, signs and exterior lights
shall be subject to Landlord's prior written approval.
(i) In the event Tenant shall fail to provide any of the services
described in Section 1.5(h) within twenty (20) days of Landlord's written
request, Landlord shall have the right to provide such services, at Landlord's
option, and Tenant shall pay to Landlord upon demand Landlord's cost thereof,
plus a fee to Landlord for administrative cost recovery in accordance with
Exhibit K.
(j) NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE
CONTRARY, TENANT HEREBY AGREES TO PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS
LANDLORD, LANDLORD'S AFFILIATES AND PARTNERS, AND THE PARTNERS, SHAREHOLDERS,
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS OF LANDLORD, ITS AFFILIATES AND
PARTNERS (ANY AND ALL OF THE FOREGOING SOMETIMES REFERRED TO AS AN "INDEMNIFIED
PARTY"), FROM AND AGAINST ANY AND ALL CLAIMS OF THIRD PARTIES AND ALL COSTS,
EXPENSES AND LIABILITIES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS OF
SUIT) INCURRED IN CONNECTION WITH ANY SPECIAL USE (EVEN TO THE EXTENT CAUSED BY
AN INDEMNIFIED PARTY'S NEGLIGENCE), EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARISE
BY REASON OF THE WILLFUL MISCONDUCT (WHICH SHALL INCLUDE ANY INTENTIONAL FAILURE
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OF LANDLORD TO COMPLY WITH ITS OBLIGATIONS UNDER THIS LEASE), FRAUD, BAD FAITH
OR GROSS NEGLIGENCE OF AN INDEMNIFIED PARTY. IN THE EVENT THAT A CLAIM IS PARTLY
THE RESULT OF THE WILLFUL MISCONDUCT, FRAUD, BAD FAITH, OR GROSS NEGLIGENCE BY
AN INDEMNIFIED PARTY DESCRIBED IN THE PRECEDING SENTENCE, AND ALSO PARTLY THE
RESULT OF THE ACT OR OMISSION OF TENANT AND/OR A THIRD PARTY, THE FOREGOING
EXCEPTION SHALL APPLY ONLY TO THAT PORTION OF THE LOSS OR DAMAGE ATTRIBUTABLE TO
SUCH WILLFUL MISCONDUCT, FRAUD, BAD FAITH, OR GROSS NEGLIGENCE BY AN INDEMNIFIED
PARTY. AS TO ANY MATTER TO WHICH AN INDEMNIFIED PARTY IS INDEMNIFIED BY TENANT,
TENANT ALSO RELEASES EACH INDEMNIFIED PARTY FROM ANY CAUSE OF ACTION OR CLAIM.
BY TENANT AGAINST SUCH INDEMNIFIED PARTY WITH RESPECT THERETO.
Promptly after receipt by an indemnified party of notice of any
claim or commencement of any action as to which such indemnified party may seek
indemnification, such indemnified party shall notify Tenant in writing of such
claim or of the commencement of such action. If any such action shall be brought
against any indemnified party, and such indemnified party shall notify Tenant of
the commencement thereof, Tenant shall assume the defense thereof at its
expense. If Tenant admits in writing that its indemnity covers such claim or
action, then Tenant may direct such defense and the indemnified party may
participate in any action at its own expense. If Tenant fails to assume or
diligently direct the defense of such claim or action and such failure continues
for twenty (20) days after written notice from the indemnified party to Tenant,
then the indemnified party's participation shall be at Tenant's expense. Tenant
shall be entitled to settle such claim or action without the consent of the
indemnified party, if such is done at no cost or expense of the indemnified
party and the indemnified party shall be fully released by all parties
(including Tenant) as part of such settlement and the indemnified party has no
further liability on account of such claim or action. The indemnified party
shall be entitled to settle such claim or action at Tenant's cost and expense
without the consent of Tenant if Tenant fails to perform its obligations under
this Section 1.5(j). In all other cases, the consent of the other party shall be
required with respect to any settlement by either the indemnified party or
Tenant. The provisions of this Section 1.5(j) shall survive the expiration or
termination of this Lease for any reason for a claim which is made or a cost,
expense or liability which is incurred prior to four (4) years following such
termination or expiration.
1.6 Survival. Any claim, cause of action, liability or obligation
arising during the Term in favor of a party hereto against or obligating the
other party hereto shall (to the extent not theretofore fully performed) survive
the expiration or any earlier termination of this Lease.
ARTICLE II
RENTAL, OPERATING EXPENSES AND TENANT INDUCEMENTS
2.1 Rental Payments.
(a) Tenant hereby agrees to pay throughout the Term Rent, including
without limitation Base Rental, Tenant's Additional Rental (defined in Section
2.3(c) hereof), Tenant's Forecast Additional Rental and Tenant's Additional
Rental Adjustment as required by and in accordance with the provisions of this
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Lease. Subject to the provisions of Section 2.1(b) hereof, Base Rental and
Tenant's Forecast Additional Rental shall be due and payable in equal monthly
installments on the first day of each calendar month during the Term, and Tenant
hereby agrees to so pay such sums to Landlord at Landlord's address as provided
herein (or such other address as may be designated by Landlord from time to
time) monthly, in advance. Tenant's Additional Rental Adjustment shall be due
and payable in accordance with Section 2.3 hereof.
(b) If the Term commences for any portion of the Leased Premises on
a day other than the first day of a calendar month, or if the Term expires on
other than the last day of a calendar month, then all installments of Rent that
are payable on a monthly basis shall be prorated for the month in which the Term
commences or terminates, as the case may be, and the installment or installments
so prorated for the month in which the Term commences or terminates, as the case
may be shall be paid in advance. Said installments for such prorated month or
months shall be calculated by multiplying the monthly installment for the
affected portion of the Leased Premises by a fraction, the numerator of which
shall be the number of days such Rent accrues during said commencement or
expiration month, as the case may be, and the denominator of which shall be the
actual number of days in the month. If the Term commences for any portion of the
Leased Premises, or if the Term expires, on other than the first day of a
calendar year, then all Rent payable on an annual basis shall be prorated for
such commencement or expiration year, as the case may be, by multiplying such
Rent by a fraction, the numerator of which shall be the number of days of the
Term during the commencement or expiration year, as the case may be, and the
denominator of which shall be the actual number of days in such year. Landlord
and Tenant hereby agree that the provisions of this Section 2.1(b) shall survive
the expiration or earlier termination of this Lease.
(c) It is understood and agreed that Tenant shall commence the
payment of Base Rental, Tenant's Forecast Additional Rental and Tenant's
Additional Rental Adjustment attributable to any floor of the Initial Leased
Premises on the Rental Commencement Date for said floor in accordance with
Section 1.2 hereof, regardless of when the Commencement Date occurs.
(d) Tenant agrees to pay all Rent as same shall become due from and
payable by Tenant to Landlord under this Lease at the times and in the manner
provided in this Lease, without abatement (except as specifically provided in
this Lease), demand, set-off (except as specifically provided in Section 2.1(e)
hereof) or counterclaim. All Rent owed by Tenant to Landlord under this Lease,
and all sums owed by Landlord to Tenant under this Lease, shall bear interest
from the date that is five (5) days after the date due until payment is received
at a per annum rate (the "Applicable Rate") equal to the lesser of (i) the
"prime rate" announced by Chase Manhattan Bank, or its successor (the "Prime
Rate"), from time to time (or if the Prime Rate is discontinued, the rate
announced as that being charged to said bank's most credit-worthy commercial
borrowers), plus two percent (2%), or (ii) the maximum contract interest rate
per annum allowed by law; provided, however, if Tenant shall fail to pay Rent,
or Landlord shall fail to pay any sum owed to Tenant hereunder, when due, and
such failure shall occur more than two (2) times in any twelve (12) month
period, upon the third (3rd) such failure all past due Rent or other sums, as
the case may be, then owing shall bear interest at the Applicable Rate from the
date due (as opposed to five (5) days after the due date) until payment is
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received. Any payments made by Landlord or Tenant to the other hereunder shall
not be deemed a waiver by such party of any rights against the other party.
(e) Tenant shall be entitled to offset against Base Rental and
Tenant's Forecast Additional Rental next coming due any amounts that are owed or
payable by Landlord to Tenant under or pursuant to Sections 1.2(d)(ii), 2.3(d),
2.3(e), 2.5, 3.1(c), and 7.1(e), together with interest on such amounts computed
as set forth in subsection (d) above, to the extent such amounts are determined
to be Landlord's liability either (i) pursuant to Section 10.1 hereof, or (ii)
in any judgment entered by a court of competent jurisdiction to which execution
has not been stayed through appeal, bond or otherwise, and Landlord fails to
make any such payment within thirty (30) days after notice therefor has been
given to Landlord and to any Notice Parties (defined in Section 3.1(c));
provided, however, with respect to the Improvements Allowance payable by
Landlord under Section 2.5, Tenant shall not be required to comply with clause
(i) or (ii) in this subsection (e) with respect to Tenant's right to offset;
instead, Tenant may offset against Rent any portion of the Improvements
Allowance Landlord fails to disburse pursuant to Section 2.5 if such failure
continues for thirty (30) days after Tenant furnishes Landlord and the Notice
Parties with notice of such failure, but if it is determined by a judgment by a
court of competent jurisdiction that any portion of the amounts offset by Tenant
were not then owed to Tenant, Tenant shall be obligated to repay such amounts to
Landlord with interest thereon at the Applicable Rate from the date of such
offset until such amounts are repaid to Landlord. Notwithstanding the foregoing,
with respect to any purchaser of the Building or the Project at a foreclosure
sale or with respect to any financing source which has accepted a deed to the
Building or the Project in lieu of foreclosure, Tenant shall have no offset
rights with respect to Landlord's obligations accruing prior to the date of
transfer of title to the Building or the Project other than Landlord's
obligations to pay the Improvements Allowance and the Delay Payments to the
extent so provided in Section 7.8(ii)(B).
2.2 Base Rental.
(a) Throughout the Term, Tenant hereby agrees to pay Base Rental in
accordance with this Section 2.2. As used herein, "Base Rental" shall mean an
annual amount equal to the product of (i) the Base Rental Rate (defined below)
for the applicable Lease Year (defined in Section 11.4 hereof), multiplied by
(ii) the number of square feet of Net Rentable Area in the Leased Premises. As
used herein, the "Base Rental Rate" shall mean an annual rate equal to the
product of (1) the total Project Costs (defined below) on a per square foot of
Net Rentable Area of the Leased Premises basis, multiplied by (2) the Applicable
Factor (defined below).
As used herein, the "Applicable Factor" shall mean (a) 9.15% with
respect to each of Lease Years 1 through 5, and (b) 10.4% with respect to each
of Lease Years 6 through 10.
As used herein, "Project Costs" shall mean:
(x) all costs and expenses incurred by Landlord in connection
with (1) the acquisition of the Project Land, (2) the design, development
and construction of the Project (specifically, including without
limitation, architectural and engineering fees, legal and other consultant
fees [including, without limitation, any fees paid or reimbursements made
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to Tenant's Auditor (defined below)], construction costs, wages and
salaries, costs of materials, travel and entertainment costs and general
and administrative costs, but excluding the costs of designing, developing
and constructing the Complex Common Areas, an allocation of the costs and
expenses of which is included in Project Costs pursuant to clause (5)
below), (3) the Improvements Allowance, (4) the acquisition of Landlord's
undivided interest in the Garage Land, (5) the design, development and
construction of the Adjacent Garage and the Complex Common Areas, as
allocated to the Project pursuant to the REA (subject to Section 4.6
hereof); plus
(y) (i) a development fee to Landlord equal to three percent
(3%) of the costs in clause (x) above and clause (z) below, plus (ii) an
amount to Landlord to cover certain reimbursable expenses of Landlord
(which amount and underlying expenses shall not be subject to audit or
objection by Tenant or Tenant's Auditor) equal to one and one-quarter
percent (1.25%) of the costs described in said clauses (x) and (z) (the
amounts in subclause (i) and (ii) of this clause (y), collectively, the
"Development Fee"); plus
(z) finance costs in connection with the costs and expenses
described in clauses (x), (y) and this clause (z);
provided, however, that should the actual Project Costs incurred by Landlord
exceed $170.00 per square foot of Net Rentable Area in the Initial Leased
Premises, all such excess costs shall be paid by Tenant to Landlord in
accordance with the procedure in Section 5.1(e) below. Attached hereto as
Exhibit L is a line item budget for the Project Costs as of the Effective Date
("Line Item Budget"). The Line Item Budget reflects all the categories of costs
and expenses which are included in Project Costs; however, the estimates of the
amount of Project Costs in each line item is only an estimate and is not binding
on Landlord or Tenant; provided, however, the line items for legal fees shall be
capped at an aggregate of $350,000, sixty percent (60%) of which shall be
applied to legal fees incurred by Landlord with respect to the Project and forty
percent (40%) of which shall be applied to legal fees incurred by Tenant in
connection with the Project. Notwithstanding anything in the Line Item Budget or
elsewhere in this Lease to the contrary, the costs of acquiring the Project Land
and the Landlord's interest in the Garage Land (exclusive of attorney fees,
costs of title insurance, surveys and environmental reports and studies, and
general due diligence costs) shall be deemed for all purposes to be
$2,500,000.00.
Tenant shall be permitted to engage an auditor ("Tenant's Auditor")
who shall be permitted to attend monthly meetings devoted to determining the
monthly draws payable to the General Contractor and/or the Tenant Contractor
with respect to the initial construction of the Project and the Tenant
Improvements. If Tenant's Auditor fails to provide Landlord with written
objections (specifying in reasonable detail the basis of such objections) to the
draws (or the items and costs related thereto) proposed at such meeting within
five (5) days after such meeting, all such draws (and the items and costs
related thereto) shall be deemed approved by Tenant. Tenant currently intends to
use ▇▇▇▇▇ ▇▇▇▇▇▇▇ of CCM Consulting as Tenant's Auditor, and Landlord hereby
approves such auditor. In the event Tenant desires to appoint some other person
or entity as Tenant's Auditor or to replace Tenant's Auditor, such appointment
and/or replacement shall be subject to Landlord's approval, which shall not be
unreasonably withheld. Any disputes which Landlord and Tenant cannot resolve
shall be submitted to arbitration pursuant to Article X.
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From and after the expiration of the Initial Term through the
expiration of the applicable Renewal Term (to the extent Tenant renews and
extends this Lease pursuant to Section 9.1 hereof), Tenant shall pay Base Rental
based on the Base Rental Rate determined in accordance with the provisions of
Section 9.1.
(b) Prior to each Rental Commencement Date, Landlord shall provide
Tenant with its best estimate of the total Project Costs, and Tenant shall make
all payments of Rent hereunder based on such estimate, until a final Project
Costs Declaration (defined below) has been executed and delivered by Landlord
and Tenant. On the Commencement Date, or as soon thereafter as reasonably
practical, Landlord shall submit to Tenant and Tenant shall execute and deliver
to Landlord within thirty (30) days of Tenant's receipt thereof from Landlord, a
declaration (in the form attached hereto as Exhibit M) (the "Project Costs
Declaration") to confirm the exact amount of the total Project Costs incurred by
Landlord and, as a result thereof, the Base Rental Rate for each Lease Year as
determined pursuant to Section 2.2(a). Tenant shall have the right, on or prior
to thirty (30) days after Tenant's receipt of the Project Cost Declaration from
Landlord, to (i) have Tenant's Auditor audit Landlord's books relating to
Project Costs, and (ii) give written notice to Landlord objecting to the Project
Costs Declaration. If Tenant fails to complete such audit and furnish notice to
Landlord of any dispute within such thirty (30) day period, Tenant shall be
deemed to have agreed such Project Costs Declaration is correct. If, however,
Tenant, within such thirty (30) day period, objects to items or costs contained
in such Project Costs Declaration to which Tenant is permitted to object
hereunder, Landlord and Tenant shall work together to resolve their differences
within ten (10) days after Landlord has received the written notice from Tenant
of the dispute, failing which such matter shall be submitted to arbitration
pursuant to Article X. After such differences have been resolved, Landlord and
Tenant shall execute and deliver the original Project Costs Declaration or, to
the extent necessary, a corrected version thereof. All payments of Rent shall be
made as and when required in this Lease, notwithstanding any unresolved
objections to the Project Costs Declaration. All such payments shall be based
upon Landlord's determination of the total Project Costs, as set forth in the
Project Costs Declaration prepared by Landlord (or prior to the Commencement
Date upon Landlord's estimate of Project Costs as provided by the first sentence
of this paragraph) and submitted to Tenant until such objections have been
finally resolved and such Project Costs Declaration (or a corrected version
thereof) has been executed by Landlord and Tenant, whereupon any overpayment or
any underpayment theretofore made shall be adjusted by increasing or reducing,
as the case may be, the next installment(s) of Rent coming due by the amount of
such underpayment or overpayment, as applicable (and, except as provided in
Section 2.3(e) herein, no interest or penalty shall be applied thereto).
Any audit performed by Tenant's Auditor pursuant to this subsection
(b) (i) shall be conducted at Landlord's offices, or at Landlord's election, at
the Complex property management office, (ii) may not unreasonably interfere with
the conduct of Landlord's business, and (iii) must be conducted in accordance
with generally accepted accounting principles. Additionally, if Tenant's Auditor
desires to make any requests of third parties, such requests must be directed
solely to Landlord and Landlord shall make such requests on behalf of Tenant's
Auditor. Tenant, on behalf of itself, its auditors, agents and employees, agrees
to keep the nature and content of all documents reviewed in connection with such
audit confidential and shall return all documents to Landlord (however, Tenant
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shall be permitted to retain any copies made by Tenant subject to Tenant's
obligation to maintain confidentiality). Tenant and Tenant's Auditor will be
required to execute a confidentiality statement in the form attached hereto as
Exhibit O prior to the commencement of such audit and prior to Landlord making
any books, records or other documents available to Tenant or Tenant's Auditor.
Landlord agrees to cooperate in good faith with Tenant in the conduct of any
such audit, and Tenant agrees to provide Landlord with a certified copy of the
results of such audit together with the notice of dispute (if any) provided
above.
2.3 Additional Rental.
(a) For each calendar year during the Term, Landlord shall present
to Tenant on or prior to December 15 of the preceding calendar year (or as soon
as possible thereafter or for the calendar year in which the first Rental
Commencement Date occurs for a portion of the Initial Leased Premises, prior to
such first Rental Commencement Date) a statement of Tenant's Forecast Additional
Rental (defined below) for the applicable year (or portion thereof). If Landlord
fails to promptly present to Tenant such statement, Tenant shall continue to pay
Tenant's Forecast Additional Rental based upon the most recent prior statement
presented by Landlord to Tenant until such statement is presented. Additionally,
Landlord shall furnish Tenant with a non-binding estimate of Tenant's Forecast
Additional Rental on or before September 1 of the preceding calendar year (other
than the calendar year in which the first Rental Commencement Date occurs).
(b) As used herein, "Tenant's Forecast Additional Rental" shall mean
for each calendar year Landlord's best good faith estimate of Tenant's
Additional Rental (defined below) for the coming calendar year (or, in the
calendar year in which the first Rental Commencement Date occurs for a Major
Portion of the Initial Leased Premises, for such calendar year), which estimate
may be adjusted by Landlord no more than one (1) time (on or prior to July 1) in
any calendar year to which such estimate relates.
(c) "Tenant's Additional Rental," as that term is used herein, shall
be computed on a calendar year basis and shall be equal to Tenant's Percentage
Share (defined below) of Operating Expenses (defined in Section 2.4 hereof) for
such calendar year.
"Tenant's Percentage Share" as used herein shall mean a fraction,
the numerator of which is the total number of square feet of Net Rentable Area
within the Leased Premises (with changes in the Net Rentable Area of the Leased
Premises being effective as of the date of such change) and the denominator of
which is the greater of (aa) ninety-five percent (95%) of the total square
footage of all Net Rentable Area in the Building leased or held for lease during
the applicable calendar year, or (bb) the weighted average of the total square
footage of all Net Rentable Area in the Building actually leased during such
calendar year (with changes in the Net Rentable Area of the Leased Premises and
of the space in the Building leased or held for lease being effective as of the
date of such change).
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(d) No later than one hundred fifty (150) days after the end of each
calendar year during the Term, Landlord shall provide Tenant (i) a statement,
prepared by a certified public accounting firm of recognized national standing
or another firm reasonably acceptable to Tenant, detailing operating costs of
the Project for each such calendar year in accordance with generally accepted
accounting principles consistently applied, (ii) a statement (the "Operating
Expense Statement") prepared by Landlord showing Operating Expenses for such
calendar year and comparing Tenant's Forecast Additional Rental with Tenant's
Additional Rental. The Operating Expense Statement shall be certified by
Landlord's group controller or other senior Project officer knowledgeable of the
facts certified to therein that, to the best of his or her knowledge, the
Operating Expense Statement has been prepared in accordance with the definitions
and provisions pertaining to Operating Expenses contained in this Lease. In the
event that Tenant's Forecast Additional Rental exceeds Tenant's Additional
Rental for said calendar year, Landlord shall pay Tenant (in the form of a
credit against Rent next due or, upon the expiration or earlier termination of
this Lease, in the form of Landlord's check within thirty (30) days after
delivery to Tenant of the Operating Expense Statement) an amount equal to such
excess (but only to the extent the excess was actually paid by Tenant). In the
event that the Tenant's Additional Rental exceeds Tenant's Forecast Additional
Rental for said calendar year, Tenant hereby agrees to pay Landlord, within
thirty (30) days of receipt of the Operating Expense Statement, an amount equal
to such difference ("Tenant's Additional Rental Adjustment"). Furthermore, if
such statement reflects that Tenant's Forecast Additional Rental is greater than
or less than Tenant's Additional Rental by more than five percent (5%), then
Landlord shall pay Tenant (in the event of an excess) or Tenant shall pay
Landlord (in the event of a deficit) interest on all of such excess or deficit,
as the case may be, calculated as follows: (i) one-twelfth (1/12th) of the
excess or deficit shall be deemed to have been paid on the first day of each
calendar month in the calendar year to which such excess or deficit relates, and
(ii) each such deemed payment shall bear interest at the Applicable Rate, from
the date deemed paid until the excess is paid to Tenant or the deficit is paid
to Landlord.
(e) Tenant, at Tenant's sole cost and expense, shall have the right,
to be exercised by notice given to Landlord within three (3) years after
Tenant's receipt of the Operating Expense Statement for any calendar year, to
audit and/or inspect that portion of Landlord's books and records pertaining to
the Operating Expenses (including but not limited to any costs which have been
allocated to the Project pursuant to the provisions of the REA, provided any
such audit and/or inspection complies with the terms of the REA governing such
audits) for the calendar year to which such Operating Expense Statement relates
with either Tenant's internal accounting group or a certified public accounting
firm of recognized national standing. Such audit and/or inspection (i) must
commence within thirty (30) days after Tenant's notice to Landlord and must be
concluded within a period equal to the sum of ninety (90) days for each calendar
year which Tenant is auditing and/or inspecting (subject to the three (3) year
limitation), (ii) shall be conducted at Landlord's property management office or
at such other location where the records are stored, (iii) must be conducted in
accordance with generally accepted accounting principles, and (iv) may not
unreasonably interfere with the conduct of Landlord's business. Additionally, if
Tenant or its auditor desire to make requests of third parties, such requests
must be directed solely to Landlord and Landlord shall make such requests on
behalf of Tenant or its auditor. Tenant, on behalf of itself, its auditors,
agents and employees, agrees to keep the nature and content of all documents
reviewed in connection with such audit and/or inspection confidential and shall
return all documents to Landlord (however, Tenant shall be permitted to retain
any copies made by Tenant subject to Tenant's obligation to maintain
confidentiality). Tenant and its auditors and agents will be required to execute
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a confidentiality statement in the form attached hereto as Exhibit O prior to
the commencement of such audit and/or inspection and prior to Landlord making
any books, records or other documents available to Tenant, its auditors or
agents. Only one (1) audit and/or inspection may be performed by or on behalf of
Tenant with respect to any calendar year. Landlord agrees to cooperate in good
faith with Tenant in the conduct of any such audit and/or inspection, and Tenant
agrees to provide Landlord with a certified copy of the results of such audit
and/or inspection within thirty (30) days after the completion thereof.
If Tenant's audit and/or inspection proves that Landlord's
calculation of Tenant's Additional Rental for the audited/inspected calendar
year or years was overstated by more than four percent (4%), then Landlord shall
pay, within thirty (30) days of receipt of such certified audit or inspection
report, Tenant's reasonable and actual audit/inspection out-of-pocket fees and
expenses applicable to the audit/inspection of said calendar year statements,
which fees and expenses must be determined on an hours-spent, rather than a
contingent-fee, basis (even to the extent such auditor was retained on a
contingent fee basis). Upon completion of the audit and/or inspection, if the
Tenant's Additional Rental is less than the Tenant's Additional Rental actually
paid by Tenant for any audited calendar year, Landlord shall pay Tenant (in the
form of a credit against Rent next due or, upon the expiration or earlier
termination of this Lease, in the form Landlord's check within thirty (30) days
after Tenant delivers to Landlord a certified copy of the results of such audit
and/or inspection) an amount equal to such difference plus interest as
hereinafter provided. If the Tenant's Additional Rental exceeds the Tenant's
Additional Rental actually paid by Tenant for any audited calendar year, Tenant
hereby agrees to pay Landlord within thirty (30) days of the completion of the
audit/inspection an amount equal to such excess plus interest as hereinafter
provided. Interest on all of such excess or deficit, as the case may be, shall
be calculated as follows: (i) one-twelfth (1/12th) of the excess or deficit
shall be deemed to have been paid on the first day of each calendar month in the
calendar year to which such excess or deficit relates, and (ii) each such deemed
payment shall bear interest at the Applicable Rate, from the date deemed paid
until the excess is paid to Tenant or the deficit is paid to Landlord.
2.4 Operating Expenses.
(a) "Operating Expenses," for each calendar year, shall mean all
expenses and costs of every kind and nature which have accrued for a particular
calendar year, as reasonably allocated by Landlord and computed in accordance
with generally accepted accounting principles consistently applied on an accrual
basis and incurred in connection with, or relating to, the ownership, repair,
maintenance and operation of the Project during each calendar year, including,
but not limited to, the expenses and costs set forth in items (i) through (xii)
below:
(i) Wages and salaries, including without limitation, taxes,
insurance, burdens and benefits, of all on-site (i.e., located within the
Complex) employees engaged in operations, maintenance or access control of
the Project (excluding, however, officers of the building management
company [but including the on-site senior property manager, even if an
officer of the building management company], employees senior to the
senior property manager and personnel engaged solely in the development
and/or leasing of the Project), and a reasonable allocation of the wages
and salaries, including without limitation, taxes, insurance, burdens and
benefits of Landlord's accounting personnel, whether or not located
on-site. As of the Effective Date, Landlord anticipates that the on-site
positions for the Project are as set forth on Exhibit P; however, in no
event shall such schedule be binding on Landlord;
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(ii) Cost of all supplies, tools, equipment and materials
(whether acquired or leased) to the extent used in operations, repair,
maintenance and/or access control of the Project;
(iii) Cost of all utilities and other related charges
including, but not limited to, the cost of electricity, water, sewer, gas
and power for heating, lighting, air conditioning and ventilating;
(iv) Cost of all maintenance and service agreements and the
equipment therein, including, but not limited to, access control service
(including, without limitation, alarm service), window cleaning, elevator
maintenance, janitorial service, snow removal and ice control, landscaping
maintenance, and, to the extent applicable under Section 1.5(h), any
services provided by Landlord at Tenant's request to the Special Use
Areas;
(v) Cost of repairs and general maintenance (excluding
repairs, alterations and general maintenance paid by proceeds of
condemnation or insurance but including the costs attributable to any
deductibles to the extent not applicable to capital expenditures excluded
in clause (I) below);
(vi) Amortization of the cost (over its useful life determined
in accordance with generally accepted accounting principles) of any
system, apparatus, device, or equipment (together with reasonable
financing charges and installation costs) that is installed for the
purpose of (aa) reducing Operating Expenses,(bb) complying with Legal
Requirements that become effective after the date upon which Landlord
obtains from the City of Dallas a building permit for the construction of
the Base Building ("Building Permit Date"), or (cc) promoting safety (and
for purposes of this clause (vi) and clause (P), of this section below,
the following shall not be deemed to have become effective prior to the
Building Permit Date: (1) rules, regulations or guidelines promulgated on
or after the Building Permit Date with respect to Legal Requirements which
became effective prior to the Building Permit Date, or (2) any amendments,
modifications or substitutions promulgated on or after the Building Permit
Date to any Legal Requirements or to any rules, regulations or guidelines
promulgated thereunder which became effective prior to the Building Permit
Date. For so long as Tenant is leasing 100% of the Net Rentable Area in
the Building, Tenant shall have the right to specifically approve in
Tenant's reasonable judgment any of the foregoing items in clause (aa)
that relate solely to the Building (and not to any other portion of the
Complex or the Complex Common Areas);
(vii) The cost of all insurance premiums and related
administrative charges and collection costs with respect to insurance (a)
required to be obtained by Landlord pursuant to this Lease, (b) required
to be obtained by Landlord by any equity financing source, the holder of
any mortgage or deed of trust that may now or hereafter encumber all or
any portion of the Project or the holder of any ground or land lease that
may now or hereafter affect the Project Land, or (c) customarily obtained
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by the owners of Comparable Buildings, including, but not limited to, the
cost of casualty and liability insurance, the cost of rental loss
insurance for the Project and insurance on Landlord's personal property
located in and used in connection with the operation, maintenance and
management of the Project;
(viii) General and administrative management costs (excluding
salaries and benefits excluded in clause (i) above), central accounting
costs, costs of annual audits of the Project operating costs by certified
public accountants, legal costs, and costs payable with respect to the
management office (whether such office is located within the Project or
elsewhere within the Complex), including, without limitation, rent costs
to the extent they do not exceed fair market rental for the term of any
such lease at the time entered into but excluding any costs allocable to a
Project leasing office; provided, however, in the event such management
office additionally serves other buildings within the Complex, Operating
Expenses shall include only a reasonable allocation of the operating
expenses payable with respect to such management office;
(ix) All taxes, assessments and governmental charges
(including those paid on Landlord's behalf by the holders of any mortgage
or deed of trust now or hereafter encumbering all or any portion of the
Project or the holders of any ground or land lease now or hereafter
affecting the Project Land), whether federal, state, county or municipal
and whether they be by taxing districts or authorities presently taxing
the Project or by others subsequently created, and any other taxes and
assessments attributable to the Project or its operation, excluding,
however, (a) taxes and assessments attributable to the personal property
of other tenants, (b) federal and state taxes on income, (c) death taxes,
(d) franchise taxes, and (e) any taxes imposed or measured on or by the
income of Landlord from the operation of the Project or imposed in
connection with any change of ownership of the Project; provided, however,
that if the taxing authorities do not separately assess the Project,
Landlord may make a reasonable allocation of the taxes, assessments or
charges to give effect to this sentence, and provided further, however,
that if at any time during the Term, the present method of taxation or
assessment shall be so changed that the whole or any part of the taxes,
assessments, levies, impositions or charges now levied, assessed or
imposed on real estate and the improvements thereon shall be discontinued
and as a substitute therefor, or in lieu of or in addition thereto, taxes,
assessments, levies, impositions or charges shall be levied, assessed or
imposed, wholly or partially, as a capital levy or otherwise, on the rents
received from the Project or the rents reserved herein or any part
thereof, then such substitute or additional taxes, assessments, levies,
impositions or charges, to the extent so levied, assessed or imposed with
respect to the Project, shall be deemed to be included within the
Operating Expenses.
If Tenant leases at least eighty percent (80%) of the Net
Rentable Area of the Building, (i) Landlord shall furnish to Tenant a copy
of the annual appraisal of the Project received by Landlord from the
applicable taxing authorities, and (ii) Landlord shall furnish written
notice to Tenant whether Landlord intends to contest taxes for such year
at least fifteen (15) days prior to the deadline date a notice of contest
must be furnished to the taxing authorities. If and only if (x) Landlord
furnishes notice to Tenant that Landlord is not contesting the taxes for a
particular calendar year, (y) Tenant leases at least eighty percent (80%)
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of the Net Rentable Area of the Building, and (z) such assessment Tenant
desires to contest is not rendered during the last two (2) Lease Years of
the then applicable Term (taking into account whether Tenant has
irrevocably exercised its Renewal Option at the time such assessment is
rendered), then Tenant shall have the right to cause Landlord to contest,
by appropriate legal proceedings or other lawful means, any increase in
assessed value of the Building and/or the Parking Facility by furnishing
written notice to Landlord on or before five (5) days prior to the
deadline date a notice of contest must be furnished to the applicable
taxing authorities. Except as expressly set forth in the immediately
preceding sentence, Tenant hereby waives any and all rights under Legal
Requirements to an administrative or judicial review of any determination
of the appraised value of the Project, including without limitation, any
rights available under the Texas Tax Code (as amended). All reasonable
consultation fees, accountant fees, legal fees, and other similar
professional fees and expenses, or costs resulting from any challenge of
tax assessments and the preparation therefor as reasonably incurred by
Landlord (or a reasonable allocation thereof to the extent such challenge
additionally relates to tax assessments applicable to portions of the
Complex other than the Project) shall be included in Operating Expenses.
It is agreed that Tenant will be responsible separately (and not as a part
of Operating Expenses) for ad valorem taxes (x) on its personal property,
and (y) at any time after the Initial Term Tenant does not lease one
hundred percent (100%) of the Net Rentable Area of the Building, on the
amount by which the value of the Leasehold Improvements (defined in
Section 11.4 hereof) exceeds the value of Building Standard Improvements
(defined in Exhibit I) (and if after the Initial Term the taxing
authorities do not separately assess the Leasehold Improvements, Landlord
may make a reasonable allocation of the ad valorem taxes allocated to the
Project to give effect to this sentence, in which event in calculating the
ad valorem taxes to be included in Operating Expenses, Landlord shall
deduct the amount by which the value of the leasehold improvements of any
other tenant in the Building exceeds the value of Building Standard
Improvements). During (i) the Initial Term or (ii) any time during the
Renewal Terms Tenant leases one hundred percent (100%) of the Net Rentable
Area of the Building, taxes on the value of all of its Leasehold
Improvements will be paid as a part of Operating Expenses. In the case of
special taxes and assessments that may be payable in installments, only
the amount of each installment accruing during a calendar year shall be
included in the Operating Expenses for such year;
(x) Expenditures for ownership, maintenance, management,
service or operation of the Complex (including, without limitation, the
Adjacent Garage) attributable to the Project, as reasonably allocated to
the Project under the REA (excluding, however, the management fee portion
of the General and Administrative Expenses [as defined in the REA]) or as
otherwise determined in accordance with generally accepted accounting
principles;
(xi) Costs of licenses, permits and inspection fees related to
the Project (except as specifically excluded in clauses (C), (I) and (K)
below); and
(xii) Management fees to the property manager for the Project;
provided, however, for the purposes of calculating Tenant's Additional
Rental hereunder, in no event may Tenant's Percentage Share of management
fees for the Project exceed Tenant's Percentage Share of an amount equal
to three percent (3%) of the gross rent for the Project for such year.
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For purposes of this Section 2.4(a), the phrase "as reasonably
allocated by Landlord" shall mean as allocated by Landlord on a reasonable and
consistent basis based upon time, square footage or other comparative measure
that fairly reflects the Project's appropriate share of such costs, subject,
however, to the provisions of Section 4.6 hereof.
Anything in the foregoing provisions hereof to the contrary
notwithstanding, Operating Expenses shall not include the following:
(A) Costs of repairs, restoration, replacements or other
work that are otherwise includible as Operating Expenses but are
occasioned by (1) fire, windstorm or other casualty of an insurable
nature (whether such destruction be total or partial) and (aa) paid
by insurance required to be carried by Landlord under this Lease, or
if Landlord failed to carry insurance required to be carried by
Landlord under this Lease, an amount equal to the insurance proceeds
that would have been available to Landlord had Landlord carried the
required insurance, (bb) otherwise paid by insurance then in effect
obtained by Landlord, or (cc) not so paid by insurance because the
deductibles exceed customary deductibles for Comparable Buildings,
(2) the exercise by a Governmental Authority (defined in Section
11.4 hereof) of the right of eminent domain, whether such taking be
total or partial, or (3) the intentional or grossly negligent tort
of Landlord, or any subsidiary or Affiliate (defined in Section 11.4
hereof) of Landlord, or any representative, employee or agent of
same acting within the scope of his or her representation,
employment or agency;
(B) Leasing commissions, attorneys' fees, costs,
disbursements and other expenses incurred in connection with
negotiations for leases with tenants, other occupants, or
prospective tenants or other occupants of the Building, or similar
costs incurred in connection with disputes with tenants, other
occupants, or prospective tenants, or similar costs and expenses
incurred in connection with negotiations or disputes with
consultants (unless involved in the operation, maintenance or repair
of the Project), management agents, purchasers or mortgagees of the
Building;
(C) Allowances, concessions and other costs and expenses
incurred in completing, fixturing, furnishing, renovating or
otherwise improving, decorating or redecorating space for tenants
(including Tenant), other occupants or prospective tenants or other
occupants of the Building, or vacant, leasable space in the
Building;
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(D) Non-cash items, such as deductions for depreciation
or obsolescence of the Building and the Building equipment, or
interest on capital invested (except as provided in clause (vi)
above);
(E) Except as provided in clause (vi) above, payments of
principal and interest or other finance charges made on any debt,
and rental payments made under any ground or underlying lease or
leases, except to the extent that a portion of such rental payments
is expressly for ad valorem/real estate taxes or insurance premiums
on the Project;
(F) Costs incurred in connection with the sale,
financing, refinancing, mortgaging, selling or change of ownership
of the Project, including brokerage commissions, attorneys' and
accountants' fees, closing costs, title insurance premiums, transfer
taxes and interest charges;
(G) Costs, fines, interest, penalties, legal fees or
costs of litigation incurred due to the late payments of taxes,
utility bills and other costs incurred by Landlord's failure to make
such payments when due unless such failure is due to Landlord's good
faith and reasonable efforts in contesting the amount of such
payments;
(H) Landlord's general corporate overhead costs,
including salaries, equipment, supplies, accounting and legal fees,
rent and other occupancy costs, and other costs relating solely to
the operation and internal organization and function of Landlord as
a business entity (as opposed to the maintenance and/or operation of
the Project, including, without limitation, those costs attributable
to the maintenance, repair or operation set forth in clauses (i) and
(viii) above);
(I) Except as provided in Section 2.4(a)(vi) above, any
costs required to be capitalized in accordance with generally
accepted accounting principles;
(J) Costs or expenses of electricity directly metered to
tenants of the Building for usage above the Building Standard Rated
Electrical Design Load and payable separately by such tenants;
(K) Except for those costs described in (vi) above,
costs incurred in connection with the initial construction of the
Building or any other improvements now or hereafter located on the
Project, including, without limitation, start-up costs incurred in
the initial hiring of property management personnel for the Building
prior to the initial occupancy of the Building by any tenant,
providing additional security while the Base Building is under
construction, installing and testing equipment, systems and other
facilities installed while the Base Building is under construction
and obtaining permits and approvals for the Base Building
construction;
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(L) Advertising and promotional costs for the Complex or
associated with the leasing of the Building;
(M) Costs of repairing, replacing or otherwise
correcting defects (but not the costs of repair for normal wear and
tear) in the design and construction of the improvements comprising
the Project;
(N) Costs or expenses relating to another tenant's or
occupant's space that were (i) incurred in rendering any service or
benefit to such tenant that Landlord was not required, or were for a
service in excess of the service that Landlord was required, to
provide Tenant hereunder, or (ii) otherwise in excess of the
Building Standard Services (defined in Section 3.1 hereof) then
being provided by Landlord to all tenants of the Building, whether
or not such other tenant is actually charged therefor by Landlord;
(O) All amounts that would otherwise be included in
Operating Expenses which are paid to any Affiliate of Landlord to
the extent the costs of such services exceed the competitive rates
in Comparable Buildings for such services rendered by persons or
entities of similar skill, competence and experience (but excluding
any such amounts specifically provided for or permitted in this
Lease [including, without limitation, the management fees permitted
by clause (xii) above] for which the provisions of this Lease shall
control);
(P) Costs incurred to correct violations by Landlord of
any Legal Requirement that was in effect as of the Building Permit
Date, and costs of removing any asbestos or PCB's (defined in
Section 4.5(a) hereof) installed by or on Landlord's behalf in the
Project;
(Q) Costs and expenses attributable to the initial
installation of landscaping of the Project;
(R) Costs of acquiring, insuring (to the extent only
that such items must be separately scheduled) or maintaining art
work located in the Project unless Landlord has received Tenant's
specific written approval for such costs;
(S) Costs and expenses (including interest costs)
attributable to any audit and/or inspection for which Landlord is
responsible pursuant to the terms of Section 2.3(e) hereof;
(T) Only that portion of the costs and expenses of
owning, maintaining and operating any of the Complex Common Areas
for which Landlord is entitled to reimbursement from the owners of
the other buildings located within the Complex pursuant to the terms
of Article IX of the REA (subject to the provisions of Section 4.6
below); and
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(U) Any construction costs incurred by Landlord for the
expansion of the Adjacent Garage after the completion of the initial
construction of the Adjacent Garage except as provided in Section
2.4(a)(vi) above or to the extent Tenant otherwise agrees in writing
to the inclusion of such costs in Operating Expenses.
(b) Notwithstanding any language contained in this Section 2.4 to
the contrary, during any calendar year in which at least ninety-five percent
(95%) of the Building is not provided with full Building Standard Services or is
not at least ninety-five percent (95%) occupied, in determining Operating
Expenses Landlord shall compute all Variable Operating Expenses (defined below)
for such calendar year as though ninety-five percent (95%) of the Building were
provided with full Building Standard Services and were ninety-five percent (95%)
occupied. For purposes of this Lease the term "Variable Operating Expenses"
shall mean any Operating Expense (or portion thereof) that increases or
decreases with the level of occupancy of the Building. Landlord and Tenant agree
that insurance costs and ad valorem taxes are not included in Variable Operating
Expenses. In the event that Landlord excludes from Operating Expenses any
specific costs billed to or otherwise incurred for the particular benefit of
specific tenants of the Building, Landlord shall have the right to increase
Operating Expenses by an amount equal to the cost of providing standard services
similar to the services for which such excluded specific costs were billed or
incurred. In no event shall Landlord receive from all tenants of the Building
more than one hundred percent (100%) of any Operating Expenses for any calendar
year.
(c) Landlord shall use its reasonable efforts to make payments in a
time and manner to obtain the appropriate discounts to the extent such discounts
are in the best interest of the Project and a reasonably prudent manager or
owner of first class, high-rise office buildings would take advantage of such
discounts. Landlord shall operate the Project in an efficient manner designed to
minimize Operating Expenses consistent with maintaining services at a level
consistent with the first class standards of the Building. Only during such time
as Tenant leases at least eighty percent (80%) of the Net Rentable Area in the
Building, Tenant may require Landlord to contract for certain Building services
("Contract Services") with the lowest bidder from a list of bidders designated
by Landlord and approved by Tenant (which approval shall not be unreasonably
withheld); however, Tenant acknowledges and agrees that all bidders must have
the skill, competence and experience necessary to provide, and the reputation
for providing, services consistent with the first class standards of the
Building; and, provided further, however, Tenant's approval shall not be
required for any bidder that is an Affiliate of Landlord. Contract Services
shall include Building janitorial services, window washing, landscaping, and
elevator maintenance, but shall exclude the management of the Project and any
Project related access control and security services.
2.5 Improvements Allowance.
(a) In order to defray all or a portion of Tenant's costs related to
the construction of the Tenant Improvements for the Initial Leased Premises,
including without limitation, Tenant's architectural and engineering costs, the
cost of millwork, cabinetry, woodwork, graphics, and signage, the acquisition
and installation costs of Tenant's customized fixtures, the costs of Tenant's
computer and telephone equipment and cabling, furniture, equipment, and sales
tax on the Tenant Improvements, and the costs incurred by Tenant in moving to
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the Initial Leased Premises Landlord will pay (subject to the terms hereinafter
set forth and provided an uncured Event of Default is not then in existence) to,
or on behalf of, Tenant an amount (the "Improvements Allowance") not to exceed
the sum of $34.00 per square foot of Net Rentable Area of the Initial Leased
Premises; provided, however, of such Improvements Allowance, a sum equal to at
least $29.00 per square foot of Net Rentable Area of the Initial Leased Premises
(including any Designated Floors) must be applied to the costs of constructing
the Tenant Improvements, and the amount, if any, in excess of $29.00 per square
foot of Net Rentable Area of the Initial Leased Premises (including any
Designated Floors), to the extent not used for the costs of constructing the
Tenant Improvements, shall be disbursed by Landlord to Tenant and such excess
amount may be used by Tenant for any purpose Tenant chooses relating to the
installation of Tenant Improvements and Tenant's move to the Initial Leased
Premises, including but not limited to, the construction or refurbishment of the
Tenant Improvements, computer facilities, furniture, fixtures or equipment,
architectural and engineering fees, physical moving costs, and unreimbursed
holdover premiums.
The Improvements Allowance shall be disbursed as provided below. As
the Tenant Contractor (as defined in Exhibit D-1) performs construction of the
Tenant Improvements and is entitled to payment (each such payment, a "Contractor
Payment") under the Construction Contract (as defined in Exhibit D-1)
attributable to the Tenant Improvements only, Landlord shall be obligated to pay
the Tenant Contractor one hundred percent (100%) of each Contractor Payment
until such time as Landlord has disbursed the total amount of the Improvement
Allowance (less any portion of such Improvements Allowance applied, or estimated
by Landlord and Tenant to be applied, toward costs under Sections 3.3, 3.5, 3.6,
5.1, 5.2 and Exhibit C-1) ("Landlord Payment"), at which time Landlord shall not
be obligated to pay any sums to the Tenant Contractor and Tenant shall be
obligated to pay to Landlord, in cash, five (5) days prior to the date such
Contractor Payments become due, one hundred percent (100%) of all subsequent
Contractor Payments and Landlord shall take such payment (the "Tenant Payment")
and remit it to the Tenant Contractor. Tenant shall receive copies of, and shall
have the right to audit, all requests for payment by the Tenant Contractor
relating to Tenant Improvements. The Tenant Contractor shall look solely to
Landlord for the Landlord Payment and Tenant shall not be liable to the
Contractor therefor. Tenant shall be liable to Landlord for the Tenant Payments.
After the Tenant Improvements Completion Date (defined in Section 11.4 hereof)
and at such time as all Tenant Construction Costs (defined in Section 11.4
hereof) that may become due to the Tenant Contractor under the Construction
Contract have been paid to Tenant Contractor (the "Contractor Date"), Landlord
will furnish Tenant a final accounting of all Tenant Construction Costs.
Notwithstanding anything to the contrary contained herein, no payment of the
Improvements Allowance shall be paid directly to Tenant or to anyone other than
the Tenant Contractor prior to the Contractor Date. If the entire Improvements
Allowance has not been disbursed as of the Contractor Date, within ninety (90)
days thereafter Tenant may submit invoices to Landlord requesting reimbursement
for any costs to which Tenant is entitled to reimbursement under this Section
2.5 in connection with the Tenant Improvements (and/or Tenant's moving costs).
If the entire Improvements Allowance has not been disbursed within
ninety (90) days after the Contractor Date, the remaining Improvements Allowance
(less any Disputed Amounts [defined below]) shall be disbursed to Tenant
(excluding $29.00 per square foot of Net Rentable Area of the Initial Leased
Premises [including any Designated Floors], which amount must be applied to the
costs of constructing the Tenant Improvements, and to the extent not so applied
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such amounts shall be retained by Landlord and not disbursed to Tenant) unless
Tenant has provided Landlord with written notice that Tenant elects to not
receive such remaining Improvements Allowance (and, in such event, for purposes
of determining Project Costs, such remaining Improvements Allowance shall not be
included and Tenant shall have waived its right to receive such remaining
Improvements Allowance). If, at the time any remaining Improvements Allowance is
to be disbursed to Tenant pursuant to the preceding sentence, Landlord has not
received full and final lien waivers from the Tenant Contractor and all other
contractors and suppliers which have supplied work or materials for the Tenant
Improvements Work, then Landlord may withhold from such disbursement any amounts
reasonably believed by Landlord to be in dispute (the "Disputed Amounts") until
any such disputes are finally resolved and Landlord has received full and final
lien waivers from all contractors and/or suppliers involved in such disputes,
whereupon Landlord shall pay to Tenant any remaining portion of the Improvements
Amount so withheld and not previously disbursed to Tenant. Additionally, in the
event Landlord incurs any liability or additional costs in connection with any
such disputes in excess of the amount of the Improvements Allowance so withheld
by Landlord, Tenant shall, within ten (10) days after receipt of Landlord's
written invoice therefor, pay the amount of any such excess to Landlord.
(b) Landlord shall have no obligation to pay for the Tenant
Improvements or any other improvements, alterations, additions or modifications
to the Leased Premises, except as expressly set forth in this Section 2.5.
Landlord shall have the right to offset against the Improvements Allowance any
amounts past due Landlord under this Lease; provided, however, if a bona fide
dispute exists as to whether any of such amounts are owed or payable to
Landlord, Landlord shall not be permitted to offset such amounts against the
Improvements Allowance until such amounts are determined to be owed or payable
to Landlord (a) pursuant to Section 10.1 hereof, or (b) in any judgment entered
by a court of competent jurisdiction and to which execution has not been stayed
(through appeal, bond or otherwise) and Tenant fails to make any such payment
within thirty (30) days after notice therefor has been given Tenant.
Notwithstanding anything to the contrary contained in this Section 2.5, in no
event shall the Improvements Allowance exceed $34.00 per square foot of Net
Rentable Area in the Initial Leased Premises.
(c) Landlord understands and agrees that Tenant may elect not to
install Tenant Improvements (on a full floor basis) in up to two (2) floors
(other than floors 1 and 2) of the Initial Leased Premises; provided, however,
all such floors shall be provided with the Base Building Improvements and to the
extent such Base Building Improvements are not installed by Landlord, such items
shall be delivered to Landlord and stored on the applicable floor. If Tenant
does not want Landlord to install Tenant Improvements for 1 or 2 floors, Tenant
must furnish notice of such election (together with Tenant's designation of the
applicable floor(s)) to Landlord on or prior to the date three (3) Business Days
after the date Landlord submits the plans for the Tenant Improvements for bid
pursuant to Exhibit D-1. Each floor so designated by Tenant shall be referred to
as a "Designated Floor" and if 2 floors are so designated by Tenant they shall
be collectively referred to as the "Designated Floors." If Tenant fails to
timely exercise such election, Tenant shall be deemed to have waived such right
to not build out such floors. If Tenant timely elects not to install the Tenant
Improvement on the Designated Floors as permitted above (x) Tenant shall be
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entitled to receive the Improvements Allowance as to the Designated Floors in
accordance with Section 2.5 (which shall be included in Project Costs), and (y)
notwithstanding the other provisions of this Lease, the Rental Commencement Date
for any Designated Floor shall be deemed to have occurred at such time as the
Rental Commencement Date occurs for the Major Portion of which such floor is a
part (and such unfinished floor or floors shall not be taken into account in
determining whether the Rental Commencement Date has occurred as to such Major
Portion so that the condition of the unfinished floor shall not delay the
occurrence of the Rental Commencement Date for the remainder of such Major
Portion) and Tenant hereby waives its right to exercise its remedies under
Section 1.2(d)(i), (ii) and (iii) with respect to any Designated Floor.
ARTICLE III.
BUILDING SERVICES, PARKING AND SIGNAGE
3.1 Services.
(a) Landlord shall furnish the services described below to Tenant
during the Term ("Building Standard Services"); provided, however, if an uncured
Event of Default is in existence, Landlord shall not be required to provide
Building Standard Services to the Leased Premises that would result in any
additional charges to Tenant in excess of Base Rental and Tenant's Additional
Rental:
(i) Subject to the provisions of this Section 3.1, hot water
(i.e., thermostat set in the range of 110(degree) to 120(degree)
Fahrenheit for comfort and energy conservation purposes) and cold domestic
water in common use restrooms and toilets at locations provided for
general use.
(ii) Subject to the provisions of this Section 3.1, central
heat and air conditioning in season during Building Operating Hours
(defined in Section 11.4 hereof), with equipment designed to perform so
that the average indoor conditions maintained in the Leased Premises
during Building Operating Hours shall be a minimum of 72(degree)F dry bulb
+/- 2(degree) in the winter when the outdoor temperature is not lower than
17(degree)F dry bulb and a maximum of 75(degree)F dry bulb +/- 2(degree)
in the summer when the outdoor temperature is not higher than 100(degree)F
dry bulb, assuming sustained peak loading conditions of one (1) person per
200 square feet of Usable Area and a combined light and power demand load
of 5 ▇▇▇▇▇ per square foot of Usable Area.
Upon request of Tenant made in accordance with the Project
Rules (defined in Section 4.4(a) hereof), Landlord will furnish air
conditioning, ventilating and heating at times other than Building
Operating Hours for areas requested by Tenant (on a floor-by-floor basis),
in which event Tenant shall pay (i) so long as Tenant leases 100% of the
Net Rentable Area in the Building, (as a part of Operating Expenses) the
actual charges incurred by Landlord to provide such services, or (ii) if
at the time such services are furnished Tenant no longer leases 100% of
the Net Rentable Area of the Building, (separately and not as a part of
Operating Expenses) the after hour HVAC charge then being charged by
Landlord to furnish such services (as of the Effective Date Landlord's
after hour HVAC charge is $40.00 per hour per floor; however such charge
is subject to increase by Landlord based upon actual increases in costs
that Landlord may incur).
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(iii) Electric lighting service for all public areas and
special service areas of the Building in the manner in keeping with First
Class Building Standards.
(iv) Janitorial service on a five (5) day per week basis,
exclusive of Holidays (defined in Section 11.4 hereof), consistent with
the janitorial specifications set forth in Exhibit G; provided, however,
(i) if requested by Tenant in writing at least thirty (30) days in
advance, Landlord shall provide separate janitorial service (consistent
with the janitorial specifications set forth in Exhibit G) to the secured
areas of the Leased Premises designated by Tenant in such notice during
Building Operating Hours, at Tenant's sole cost and expense for any
incremental increases over the costs of providing the Building Standard
janitorial service described above, and (ii) if Tenant's Leasehold
Improvements (including without limitation, floor coverings) require that
Landlord provide special or additional cleaning in excess of the
janitorial specifications in Exhibit G, Tenant may either (1)
independently contract with individuals or entities that furnish such
desired cleaning services, or (2) request that Landlord cause such special
or additional cleaning to be completed at Tenant's sole cost and expense.
If Tenant elects option (1), (A) such janitorial services must at least be
comparable to the quantity and type of service provided by Landlord, (B)
Tenant shall provide its own staging areas for its employees or
contractors and suppliers, (C) in conducting its work, Tenant will
coordinate the same with Landlord, and (D) Tenant will not unreasonably
interfere with any other tenants in the Project or with Project
operations.
Landlord specifically reserves the right, upon thirty (30)
days advance written notice to Tenant, to modify the janitorial services
specifications set forth in Exhibit G as in Landlord's judgment shall from
time to time be required for the safety, protection and cleanliness of the
Project, the operation thereof, the preservation of good order therein or
the protection and comfort of the other tenants of the Project and their
agents, employees and guests; provided, however, (i) Landlord's janitorial
services specifications for the Project will at least be of a quality
level comparable to the quality level of those specifications described in
Exhibit G, and (ii) if Tenant then leases eighty percent (80%) of the Net
Rentable Area of the Building, Tenant's approval shall be required for any
such modification, which approval shall not be unreasonably withheld.
(v) Access control services for the Project, including the
Building Garage (and Landlord shall arrange for access control services
for the Adjacent Garage), comparable as to coverage, control and
responsiveness (but not necessarily as to means for accomplishing the
same) to First Class Building Standards and providing Tenant and its
employees access to the Leased Premises (and the Adjacent Garage)
twenty-four (24) hours per day every day of the year, subject to
emergencies and to reasonable rules and regulations promulgated by
Landlord, and with respect to the Adjacent Garage, the reasonable rules
and regulations promulgated by the owners and/or operators thereof (which
rules and regulations as to Adjacent Garage shall be subject to Tenant's
approval during the period Tenant leases one hundred percent (100%) of the
Net Rentable Area in the Building, which approval shall not be
unreasonably withheld, however, Tenant recognizes that, pursuant to the
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REA, such rules are subject to the approval of certain other owners of
buildings in the Complex); PROVIDED, HOWEVER, UNLESS CAUSED BY ITS WILLFUL
MISCONDUCT, LANDLORD SHALL HAVE NO RESPONSIBILITY TO PREVENT, AND SHALL
NOT BE LIABLE TO TENANT, ITS AGENTS, EMPLOYEES, CONTRACTORS, VISITORS OR
INVITEES FOR, ANY DAMAGE OR LOSS TO TENANT, ITS AGENTS, EMPLOYEES,
CONTRACTORS, VISITORS OR INVITEES ARISING OUT OF LOSSES DUE TO THEFT,
BURGLARY, OR DAMAGE OR INJURY TO PERSONS OR PROPERTY CAUSED BY PERSONS
GAINING ACCESS TO THE LEASED PREMISES, OTHER AREAS OF THE PROJECT, THE
ADJACENT GARAGE AND/OR THE COMPLEX, AND TENANT HEREBY RELEASES LANDLORD
FROM ALL LIABILITY FOR SUCH LOSSES, DAMAGES OR INJURY, EVEN IF CAUSED BY
LANDLORD'S NEGLIGENCE. The access cards (or other similar devices)
provided to Tenant to gain access to the Building shall also provide
access to the Adjacent Garage. In the event of a conflict between the
provisions of such rules and regulations as to the Adjacent Garage and
this Lease, the provisions of this Lease shall control. Landlord shall not
enforce such rules and regulations as to the Adjacent Garage with respect
to Tenant in a manner that is more restrictive than Landlord's enforcement
of such rules as to any other tenants of the Building.
Tenant shall have the right, at its sole cost and expense, to
install and operate such additional access control systems as it shall
determine desirable for the purpose of limiting access to or within the
Leased Premises, provided (i) such systems are located solely within the
Leased Premises (including the fire stairwell doors), (ii) comply with
Legal Requirements, (iii) do not interfere with Landlord's right of entry
pursuant to Section 4.2 hereof or otherwise interfere with Landlord's
obligations to perform under this Lease or other leases of space in the
Building, (iv) Landlord first approves such systems, such approval not to
be unreasonably withheld, and (v) such systems cannot compromise
Landlord's access control systems.
(vi) Sufficient electrical capacity transformed to a panel box
located in the core of each floor of the Leased Premises to operate (1)
incandescent lights, typewriters, calculating machines, photocopying
machines, stand alone network computers, word processing equipment,
personal computers, telecommunications and other machines of similar low
voltage electrical consumption (120/208 volts), provided that the total
rated electrical design load at one hundred percent (100%) capacity for
said lighting and machines of low electrical voltage on each such floor
shall not exceed two (2) ▇▇▇▇▇ per square foot of Usable Area for the
Leased Premises on such floor; and (2) fluorescent lighting and equipment
of high voltage electrical consumption (277/480 volts), provided that the
total rated electrical design load at one hundred percent (100%) capacity
for said lighting and equipment of high electrical voltage shall not
exceed two (2) ▇▇▇▇▇ per square foot of Usable Area for the Leased
Premises on such floor (each such rated electrical design load to be
hereinafter referred to as the "Building Standard Rated Electrical Design
Load"). The Base Building bus duct will provide capacity for a total of
six (6) ▇▇▇▇▇ per square foot of Usable Area for the Leased Premises (of
which four (4) ▇▇▇▇▇ are dedicated in subsections (vi)(1) and (vi)(2)
above). Tenant may at its option and at its cost and expense transform and
distribute the two (2) ▇▇▇▇▇ per square foot of Usable Area of additional
power from the bus duct to the Leased Premises.
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Should Tenant's non-linear electrical load (created by
equipment such as personal computers, television sets, laser printers,
copiers or other electronic devices connected to the power system) result
in harmonic distortion conditions which cause any adverse effects in the
Project or the Complex, including but not limited to, duration of any
transformer, distribution stepdown transformer failures, overheating or
melting of neutral conductors, or malfunctioning of various electronic
components, Tenant acknowledges that Tenant, at Tenant's sole cost, shall
be obligated to eliminate such harmonic distortion conditions and to
commence repair of any damage which results from such harmonic distortion
within thirty (30) days of Landlord's written request. If Tenant fails to
commence such repairs to eliminate such harmonic distortion and repair
such damage caused thereby within such thirty (30) day period and
thereafter diligently pursue such repairs to completion to eliminate such
distortion and repair any resulting distortion, Landlord, at its option,
may make such corrections deemed necessary by Landlord to eliminate such
harmonic distortion and make such repairs, and Tenant shall pay to
Landlord on demand Landlord's cost thereof, plus a fee to Landlord in
accordance with Exhibit K.
Tenant shall cause Tenant's electrical system serving any
equipment producing non-linear electrical loads to be designed to
accommodate such non-linear electrical loads, including but not limited
to, over-sizing neutral conductors, derating transformers and/or providing
power line filters. The Space Plans and Bid Documents (defined in Exhibit
D-1) shall include a calculation of Tenant's fully connected design load
with and without demand factors and shall indicate the number of ▇▇▇▇▇ of
un-metered and sub-metered loads.
If Tenant's electrical equipment and, lighting require
electrical circuits, transformers or other additional equipment in excess
of Tenant's pro rata share of the Building's electrical or HVAC systems
(which additional equipment shall be hereinafter referred to as the
"Additional Electrical Equipment"), Tenant may (at Tenant's cost,
including the cost to design, install, maintain and replace the Additional
Electrical Equipment [including the meters]) install the same, provided
such installation is compatible with existing Building systems, will not
compromise Landlord's ability to provide services to Tenant or other
tenants of the Building and will not be burdensome to the Project or to
Landlord, in Landlord's reasonable opinion, and Tenant shall pay all
operating costs related to that requirement (including, without
limitation, the cost of electricity, water or other services consumed
through, or in connection with, the Additional Electrical Equipment).
The method of design and installation of any Additional
Electrical Equipment (including any related meter) required by Tenant
shall be subject to the prior written approval of Landlord (which approval
shall not be unreasonably withheld) and shall be performed by Landlord at
Tenant's sole cost (including the payment to Landlord of a fee in
accordance with Exhibit K).
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Tenant shall pay to Landlord the cost of electricity consumed
(i) in excess of the Building Standard Rated Electrical Design Load, or
(ii) through the Additional Electrical Equipment, as determined by meter,
plus any actual accounting expenses incurred by Landlord in connection
with the metering thereof. The entire Leased Premises shall be separately
metered (at Tenant's expense, including, without limitation, the cost of
installing, maintaining, repairing and replacing such meters to the extent
necessary).
If any of Tenant's electrical equipment requires conditioned
air in excess of Building Standard air conditioning, provided such
services are compatible with existing Building systems, will not
compromise Landlord's ability to provide services to Tenant or other
tenants of the Building and are not burdensome to the Project or Landlord,
in Landlord's reasonable opinion, the same shall be installed, or the
installation supervised by Landlord, on Tenant's behalf, and Tenant shall
pay all design, installation, metering and operating costs relating
thereto, including the payment to Landlord of a fee in accordance with
Exhibit K, and for the cost of the chilled water utilized in connection
therewith, unless such air conditioning is used in common with other
tenants of the Building, in which event such costs shall be reasonably
allocated by Landlord among Tenant and such tenants. Landlord shall
maintain such air conditioning equipment at Tenant's sole cost and
expense.
Notwithstanding anything to the contrary contained in this
Section 3.1(a), all initial installation (other than Base Building
Improvements) and subsequent modifications or maintenance to the
connections of the life safety and fire alarm systems into the Base
Building and all initial installation (other than Base Building
Improvements) and subsequent modifications or maintenance to the
connections into a Base Building System shall be completed by Landlord at
Tenant's sole cost and expense, including the payment to Landlord of a fee
in accordance with Exhibit K (although no fee shall be payable by Tenant
on maintenance costs); provided, however, all installation costs under
this paragraph associated with the installation of Tenant Improvements
pursuant to Exhibit D-1 may be reimbursed from the Improvements Allowance
and Landlord shall not be entitled to a fee thereon pursuant to Exhibit K.
(vii) All Building Standard fluorescent bulb replacement in
all areas of the Project and all incandescent bulb replacement in the
Common Areas on floors not leased entirely by Tenant, General Common Areas
and Service Areas.
(viii) Non-exclusive elevator cab passenger service to the
Leased Premises shall be provided twenty-four (24) hours per day every day
of the year of sufficient capacity to service the Leased Premises, subject
to temporary cessation for ordinary repair and maintenance (but as to each
floor of the Leased Premises, such temporary cessation for ordinary repair
and maintenance shall not occur simultaneously for all passenger cabs
serving such floor) and during emergencies and times when life safety
systems override normal Building operating systems, and subject to
security measures or other means of controlling access imposed by Landlord
after Building Operating Hours and on Holidays pursuant to subsection (v)
above.
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(ix) Subject to the provisions of this Lease, maintenance and
cleaning of the Base Building, Common Areas on each floor of the Building
on which any part of the Leased Premises is situated that is not leased
entirely by Tenant, and General Common Areas and Service Areas of the
Building, landscaped areas on the Project Land, and all other public areas
of the Project, including window washing and exterior wall cleaning,
janitorial service (including restrooms), removal of ice and snow from
driving areas and sidewalks, vermin extermination, mowing and irrigation
of landscaping, and sweeping and removal of litter and debris from the
Parking Facility and the General Common Areas.
(x) Shared access to and use of the Loading Dock for Tenant's
loading, unloading, delivery, and pick-up activities twenty-four (24)
hours per day, seven (7) days per week, including the right to leave
vehicles standing at the Loading Dock for enough time to load or unload
and pick up and deliver goods to and from the Leased Premises, subject,
however, (i) to reasonable rules and regulations as are promulgated by
Landlord from time to time (however, so long as Tenant leases eighty
percent (80%) of the Net Rentable Area in the Building, Tenant's input
shall be requested as to such rules (but Tenant's approval shall not be
required); however, Tenant recognizes that pursuant to the REA, such rules
are subject to the approval of the owner of the Phase II Building), and
(ii) to the provisions of the REA relating to the shared use of the
Loading Dock by the owners and occupants (including Tenant) of the Project
and the owners and occupants of the Phase II Building. Landlord agrees not
to enforce the rules promulgated by Landlord in clause (i) with respect to
Tenant in a manner that is more restrictive than Landlord's enforcement of
such rules as to any other tenants of the Building. Additionally, for any
use of the Loading Dock by Tenant during hours other than Building
Operating Hours, Tenant shall be required to schedule such use with
Landlord and shall be obligated to pay Landlord for any incremental costs
incurred by Landlord in connection with such use.
(xi) Sanitary sewer service twenty-four (24) hours per day,
every day of the year, subject to temporary interruption for ordinary
repair and maintenance and emergencies.
(xii) Trash removal from the Project at a designated location,
and if requested by Tenant (at Tenant's sole cost and expense), collection
and removal of recyclable materials (e.g., white paper, aluminum cans,
glass and designated plastics).
(xiii) Non-exclusive freight elevator service to the Leased
Premises during Building Operating Hours with such freight elevator
service available at other times upon reasonable prior notice, subject to
temporary cessation for ordinary repair and maintenance and during
emergencies and times when life safety systems override normal Building
operating systems, and subject to security measures or other means of
controlling access imposed by Landlord pursuant to subsection (v) above.
Tenant's payment obligations to Landlord under this subsection (a)
shall be due and payable to Landlord within thirty (30) days of receipt by
Tenant of an invoice therefor from Landlord.
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(b) Landlord agrees to furnish Tenant with at least twenty-four (24)
hours prior written notice of any interruption in the Building Standard Services
described in subsections (a)(i), (ii), (v), (vi), (viii), (x), (xi) and (xiii)
that are scheduled by Landlord for repairs or maintenance, excluding repairs and
maintenance necessitated by an emergency.
(c) To the extent the services described in Section 3.1 above
require electricity and water supplied by public utilities, Landlord's covenants
hereunder shall only impose on Landlord the obligation to use its reasonable
efforts to cause the applicable public utilities to furnish the same. Failure by
Landlord to furnish the services described in this Section 3.1, or any cessation
thereof, shall neither render Landlord liable for damages to either person or
property, nor be construed as an eviction of Tenant, nor work an abatement of
rent (except as provided below), nor relieve Tenant from fulfillment of any
covenant or agreement hereof. In addition to the foregoing, should any of the
equipment or machinery, for any cause, fail to operate or function properly,
Tenant shall have no claim for a rebate of rent (except as otherwise provided
below) or for damages on account of an interruption in services occasioned
thereby or resulting therefrom so long as Landlord uses reasonable efforts to
promptly repair said equipment or machinery and to restore said services.
Notwithstanding anything herein to the contrary, in the event (1) it
becomes reasonably impracticable for Tenant to operate its business in the
Leased Premises, or any portion thereof, because Landlord for any reason,
whether or not within its control (except for a curtailment in service imposed
on office buildings generally in the North Dallas Area by any Governmental
Authority or any failure by the applicable public utility to furnish necessary
services or due to Tenant's negligence, gross negligence or willful misconduct
[an "Unavoidable Interruption"]), is unable or fails to provide the following
basic services (the "Basic Services") to be provided by Landlord under this
Lease, to wit: (i) water at those points supplied for general use by tenants in
the Building, (ii) heated and refrigerated air conditioning, in season, at such
times as and at such temperatures and in such amounts as provided in this
Section 3.1, (iii) passenger elevators for ingress and egress to all floors on
which the Leased Premises are located, in common with other tenants (subject to
the provisions of Section 3.1(a)(viii)), and (iv) electric power and current to
the outlets available in the Leased Premises in the capacities provided in
Section 3.1(a)(vi), (2) such failure (a "Basic Services Failure") continues for
a period in excess of ten (10) consecutive days after Tenant delivered written
notice to Landlord such failure had occurred, and (3) Tenant relocates to other
premises for such period (which for purposes of this clause (3) only may include
relocation to other portions of the Leased Premises), then Tenant shall receive
a full abatement of all Rent (including Base Rental, Tenant's Forecast
Additional Rental and Tenant's Additional Rental Adjustment) due under this
Lease with respect to the portion of the Leased Premises so affected, which
abatement shall be retroactive to date it first became reasonably impracticable
for Tenant to operate its business in such portion of the Leased Premises and
Tenant relocated to other premises and shall continue until the date it again
becomes reasonably practical for Tenant to operate its business therefrom.
Additionally, in the event a Basic Services Failure (which is not the result of
an Unavoidable Interruption) continues for a period of one hundred eighty (180)
consecutive days or more after Tenant delivered written notice to Landlord such
failure had occurred, and as a result of such Basic Services Failure it becomes
reasonably impracticable for Tenant to conduct its business from twenty-five
percent (25%) or more of the Leased Premises and as a result thereof Tenant
relocates to other premises for such 180-day period, Tenant, at its option,
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shall be entitled to terminate this Lease by delivering written notice of
termination to Landlord after such one hundred eightieth (180th) consecutive day
but prior to the date that such Basic Service Failure is cured, in which event
this Lease shall terminate and neither Landlord nor Tenant shall have any
further obligations one to the other under this Lease, including, without
limitation, any obligations of Tenant for the payment of Base Rental and
Tenant's Additional Rental under this Lease. Any failure by Tenant to so
terminate this Lease on or prior to the date that the Basic Services Failure is
cured shall constitute a waiver by Tenant of the right to so terminate this
Lease as a result of such Basic Services Failure. For purposes of this
paragraph, Tenant agrees that temperature ranges for the Project may vary as the
result of Legal Requirements or utility restrictions, and such variations shall
not render the Leased Premises untenantable nor be deemed to have made it
reasonably impracticable for Tenant to conduct its business therefrom.
In addition to Tenant's foregoing rights, for any failure by
Landlord to provide any of the services under this Section 3.1 (including, but
not limited to, Basic Services), except as a result of an Unavoidable
Interruption, if such failure ("Services Failure") should continue beyond a
period of thirty (30) consecutive days (or, such longer period as is reasonably
necessary to remedy such Services Failure, provided Landlord shall continuously
and diligently pursue such remedy until such Services Failure is cured) after in
each instance written notice (the "First Services Notice") thereof is given by
Tenant to Landlord (and a copy of said notice is sent simultaneously therewith
to any party (including without limitation a mortgagee) entitled to receive
notice pursuant to Section 11.1 hereof [the "Notice Parties"], then, in any such
event Tenant shall have the right, upon giving an additional notice (the "Second
Services Notice") to Landlord (and Tenant shall simultaneously send a copy of
the Second Services Notice to the Notice Parties) and if such Services Failure
shall continue uncured by Landlord and the Notice Parties for an additional ten
(10) days after receipt of such Second Services Notice by Landlord and such
Notice Parties, to cure such Services Failure, and Landlord shall reimburse
Tenant (which reimbursement Tenant may effect through the withholding of Rent
pursuant to the provisions of Section 2.1(e)) for all reasonable sums expended
in so curing said default. In the event Tenant takes any action to cure a
Services Failure in accordance with this paragraph, and such work affects the
Base Building, Base Building Systems or the structural integrity of the Building
or the Project, (i) Tenant shall use only those contractors used by Landlord in
the Building for work on such systems unless such contractors are unwilling or
unable to perform such work after reasonable requests by Tenant, in which event
Tenant may utilize the services of any other qualified contractor approved by
Landlord, which approval shall not be unreasonably withheld, of similar skill,
competence and experience which normally and regularly performs similar work on
Comparable Buildings, and (ii) all such work shall be performed in accordance
with the provisions of Exhibit D-2.
The foregoing rental abatement, termination, and self-help (and
offset) rights of Tenant for a Services Failure (including a Basic Services
Failure) shall constitute Tenant's sole and exclusive remedies involving or with
respect to a Services Failure (including a Basic Services Failure). Tenant
agrees there shall be no abatement of Rent, nor shall Tenant have the right to
terminate this Lease nor avail itself of self-help (and offset) rights, on
account of an Unavoidable Interruption.
3.2 Keys and Locks. At Tenant's request made on or before the
Commencement Date, Landlord shall furnish Tenant with keys and/or access cards,
as applicable, for each Building Standard lockset on code required doors
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entering the Leased Premises from public lobby areas in an amount reasonably
requested by Tenant for use by its then current employees maintaining offices in
the Leased Premises (the cost of which shall be a part of the Project Costs),
but in no event in excess of five (5) keys and/or access cards per one thousand
(1,000) square feet of Net Rentable Area in the Initial Leased Premises.
Additional keys and/or access cards for each Building Standard lockset on code
required doors entering the Leased Premises from public lobby areas, including
without limitation keys and/or access cards for new employees of Tenant and
replacement keys and/or access cards for lost or damaged keys and/or access
cards, will be promptly furnished by Landlord upon an order signed by Tenant and
at Tenant's expense (at a cost reasonably approximating Landlord's cost
therefor). All such keys and/or access cards shall remain the property of
Landlord. Tenant shall be permitted to install additional locks or other access
control devices in the Leased Premises provided Tenant furnishes Landlord with a
duplicate set of keys or a master key and/or access cards to all such locks
other than those locks securing Security Areas (defined in Section 4.2 hereof).
Landlord shall be relieved of all obligations under this Lease it cannot perform
with respect to Security Areas and to which areas it should have been, but was
not, provided a key and/or access card. In addition, with respect to Security
Areas and any areas for which Landlord should have been, but was not, provided a
key and/or access card, Landlord may, in an emergency situation where in
Landlord's good faith judgment immediate entry is required to prevent or
minimize personal injury, death or property damage, use force to gain entry into
such areas, and Landlord shall not be liable to Tenant for damage resulting from
such use of force. Upon termination of this Lease, Tenant shall surrender to
Landlord all keys and/or access cards to any locks on doors entering or within
the Leased Premises, and shall provide Landlord with the combination of all
locks for safes, safe cabinets and vault doors, if any, remaining on the Leased
Premises.
3.3 Graphics and Building Directory.
(a) On any floor of the Leased Premises, if any, not entirely leased
by Tenant, Landlord shall provide and install on or adjacent to entrances to the
Leased Premises Tenant's name and numerals designating the appropriate suite
numbers in Building Standard graphics and Tenant shall not install any other
graphics visible from the exterior of the Leased Premises without Landlord's
prior approval. All costs and expenses incurred by Landlord to initially install
the foregoing graphics and any changes to such graphics shall be made at
Tenant's sole cost and expense (however, such costs may be reimbursed from the
Improvements Allowance for any such graphics installed as a part of the Tenant
Improvements pursuant to Exhibit D-1). As to floors leased entirely by Tenant,
Tenant may install at Tenant's sole cost and expense (however, such costs may be
reimbursed from the Improvements Allowance for any such graphics installed as a
part of the Tenant Improvements pursuant to Exhibit D-1) appropriate graphics
(e.g., Tenant's company logo) in elevator lobbies on such floors and on the
entrance doors to the Leased Premises, with Landlord's prior approval of the
size, materials, method of illumination, if any, and methods of installation or
attachment, which approval will not be unreasonably withheld. Additionally, only
during that period that Tenant leases at least fifty-one percent (51 %) of the
Net Rentable Area of the Building, Tenant shall be permitted to install and
maintain appropriate graphics with Landlord's prior approval of the size,
materials, method of illumination, if any, and method of installation or
attachment, which approval will not be unreasonably withheld, at Tenant's sole
cost and expense in the visitor reception areas in the ground floor building
lobby designated for Tenant's use (but only if such visitor reception areas are
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a part of the Leased Premises). In no event, however, may any of the foregoing
graphics penetrate the Building stone or wood. Notwithstanding the foregoing,
except as specifically provided in Section 3.5 below, in no event may Tenant,
without Landlord's prior approval (which approval may be withheld in Landlord's
sole discretion), install any graphics that may be visible from the exterior of
the Building.
(b) Landlord shall provide and install a Building directory computer
terminal to be placed in the ground floor lobby of the Building which shall
contain a computerized listing of Tenant's name, certain officers or offices of
Tenant, and such other information as Tenant shall reasonably require. Tenant
agrees that Landlord shall not be liable for any inconvenience or damage
occurring as a result of any error or omission in the Building directory.
3.4 Parking.
(a) Landlord shall make available to Tenant for Tenant's use for the
entire Term (and during the Initial Term Tenant shall not be charged separate
parking rental for such use) up to one (1) permit (or access card) to park in
the Building Garage and Adjacent Garage for each three hundred seventeen (317)
square feet of Net Rentable Area within the Leased Premises (collectively, the
"Parking Permits"), which will permit Tenant (i) so long as Tenant leases at
least eighty percent (80%) of the Net Rentable Area in the Building, to park in
all of the reserved parking spaces located in the Building Garage ("Assigned
Parking Permits"), (ii) to make available to its guests and visitors up to
eighty (80) parking spaces in the area of the Parking Facility (including up to
eight (8) parking spaces located in the surface parking area of the Complex)
designated from time to time for "Visitor Parking" (the "Visitor Spaces"), and
(iii) to self park, on an unassigned basis, in parking spaces (equal in number
to the total number of Parking Permits, less the number of Assigned Parking
Permits and less the number of Visitor Spaces) located in areas of the Adjacent
Garage designated from time to time for use by Tenant in common with the other
tenants of the Complex (the "Unassigned Parking Permits"). The Visitor Spaces
may be utilized by Tenant's guests and visitors on a first come, first served
basis, in common with the visitors and guests of other tenants of the Complex.
The Assigned Parking Permits shall not be reduced so long as Tenant
leases at least eighty percent (80%) of the Net Rentable Area in the Building.
If at any time Tenant leases less than one hundred percent (100%) of the Net
Rentable Area of the Building, (x) the Visitor Spaces shall be reduced to an
amount equal to the product of (i) eighty (80), multiplied by (ii) a fraction,
the numerator of which is the Net Rentable Area then contained in the Leased
Premises and the denominator of which is the total Net Rentable Area in the
Building, and (y) the Unassigned Parking Permits shall be reduced based on the
formula contained in the definition thereof in clause (iii) of the immediately
preceding paragraph. If at any time during the Term, Tenant leases less than
eighty percent (80%) of the Net Rentable Area in the Building, the number of
Assigned Parking Permits shall be reduced to an amount equal to the product of
(x) the total number of spaces in the Building Garage, multiplied by (y) a
fraction, the numerator of which is the Net Rentable Area then contained in the
Leased Premises and the denominator of which is the total Net Rentable Area in
the Building; provided, however, Landlord agrees that (i) to the extent
reasonably practical, the parking spaces in the Building Garage covered by the
Assigned Parking Permits which continue to be leased to Tenant after such
reduction shall be contiguous, and (ii) the general location of the parking
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spaces allocated to such Assigned Parking Permits and the general location of
any other spaces in the Building Garage not leased by Tenant as a result of such
reduction shall be fairly distributed by Landlord, taking into consideration the
proximity of such spaces to elevators and any other factors affecting the
general desirability of such spaces.
Tenant shall have the right, from time to time during the Term
(wholly or partially), to be exercised by thirty (30) days advance written
notice to Landlord, to convert up to the Convertible Amount (defined below) of
Unassigned Parking Permits leased by Tenant in the Adjacent Garage to the right
to park in reserved parking spaces (the "Converted Spaces") in the Adjacent
Garage designated for use by the Building pursuant to the REA, subject to the
terms of this paragraph. Tenant shall pay any costs incurred by Landlord in
converting unassigned parking spaces to reserved parking spaces. As used herein,
the term "Convertible Amount" shall mean: (i) so long as Tenant leases one
hundred percent (100%) of the Net Rentable Area in the Building, the total
number of parking spaces in the Adjacent Garage which Landlord is permitted to
designate as reserved parking spaces for the Building pursuant to the provisions
of the REA, and (ii) at such time that Tenant no longer leases one hundred
percent (100%) of the Net Rentable Area in the Building, a lesser number of
parking spaces determined by multiplying the number of parking spaces described
in clause (i) by a fraction, the numerator of which is the Net Rentable Area
then contained in the Leased Premises and the denominator of which is the total
Net Rentable Area in the Building. Tenant acknowledges that in no event may
Tenant be entitled to an aggregate number of reserved spaces in the Adjacent
Garage in excess of the Convertible Amount (based upon the Net Rentable Area
contained from time to time in the Leased Premises). If the Net Rentable Area of
the Leased Premises decreases, the Converted Spaces to which Tenant no longer is
entitled, as provided above, shall convert back to unassigned parking spaces and
Landlord shall be permitted to determine, in its sole discretion, the location
of the reserved spaces in the Adjacent Garage to which Tenant is no longer
entitled to utilize upon written notice to Tenant.
(b) Notwithstanding anything to the contrary contained in this
Section 3.4, Landlord's obligation to make available the Parking Permits shall
exist only pro rata until the Commencement Date (said proration to be computed
on the basis of the ratio of the Net Rentable Area of the Initial Leased
Premises as to which the Rental Commencement Date has occurred compared to the
entire Net Rentable Area of the Initial Leased Premises). Tenant shall be
permitted to sublease Assigned Parking Permits and Unassigned Parking Permits to
permitted sublessees of the Leased Premises under Section 8.1 of this Lease.
(c) In the event the parking spaces covered by the Parking Permits
are not available to Tenant due to causes beyond the reasonable control of
Landlord during any portion of the Term, including without limitation as the
result of a casualty or condemnation, this Lease shall continue without
abatement of rent, and Landlord shall use reasonable efforts to make available
to Tenant at no additional cost to Tenant sufficient substitute unassigned
parking spaces (the "Substitute Parking") to meet Tenant's needs within the
Complex or, if sufficient parking is not then available within the Complex,
within the Substitute Parking Area. As used herein, the "Substitute Parking
Area" shall mean the area bounded by LBJ Freeway on the South, Preston Road on
the East, Beltline Road on the North and Inwood Road on the West. The Substitute
Parking shall be in a secure, lighted area, and, if the Substitute Parking is
not located within a one-quarter (1/4) mile radius of the Building, Landlord
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shall provide Tenant with transportation between the Building and the Substitute
Parking at no charge to Tenant. If Landlord does not make the Substitute Parking
available to Tenant for a period of one hundred twenty (120) consecutive days
from the date the spaces covered by the Parking Permits in the Parking Facility
were first unavailable to Tenant, and Landlord continues to fail to make
available to Tenant Substitute Parking within thirty (30) days after Tenant's
notice of such failure to Landlord and to each Notice Party pursuant to Section
11.1, Tenant shall have the right as its sole recourse to terminate this Lease
by delivering written notice of such termination to Landlord prior to Landlord
making such spaces available to Tenant, and, in such event, this Lease shall
automatically terminate as of the date of Tenant's termination notice, and
Landlord shall have no liability to Tenant resulting therefrom. Additionally, if
Landlord makes available the Substitute Parking to Tenant pursuant to this
Section 3.4(c), but the spaces covered by the Parking Permits in the Parking
Facility are not made available to Tenant within twelve (12) months after the
date such spaces in the Parking Facility were first unavailable to Tenant, and
Landlord continues to fail to make available such spaces in the Parking Facility
within thirty (30) days after Tenant's notice of such failure to Landlord and to
each Notice Party pursuant to Section 11.1, Tenant shall have the right as its
sole recourse to terminate this Lease by delivering written notice of such
termination to Landlord prior to Landlord making such spaces available to
Tenant, and, in such event, this Lease shall automatically terminate as of the
date of Tenant's notice, and Landlord shall have no further liability to Tenant
resulting therefrom or hereunder.
In all events, Landlord shall use its reasonable efforts to ensure
that the parking spaces covered by the Parking Permits are available to Tenant
throughout the Term. Without limiting the foregoing, Landlord agrees to use
reasonable efforts to enforce the provisions of Section 5.6(c) of the REA if the
owner of the Phase II Building attempts to utilize, or commits to provide its
tenants with, more spaces in the Adjacent Garage than such owner is entitled to
under the REA and such action by such owner affects Tenant's parking rights
hereunder.
(d) Landlord, the operator of the Parking Facility and/or that
person so designated under the REA, may make, modify and enforce reasonable
rules and regulations relating to the parking of vehicles in the Parking
Facility, and Tenant agrees to abide by, and to use reasonable efforts to cause
Tenant's employees, agents and invitees to abide by, such rules and regulations
applicable to all users of the Parking Facility (however, so long as Tenant
leases fifty percent (50%) of the Net Rentable Area in the Building, Tenant's
approval shall be requested as to such rules, which approval shall not be
unreasonably withheld; however, Tenant recognizes that pursuant to the REA, such
rules are subject to the approval of the owners of other buildings located
within the Complex). In the event of a conflict between the provisions of this
Lease and the aforementioned rules and regulations, the provisions of this Lease
shall control. Without limiting the foregoing, so long as Tenant leases eighty
percent (80%) of the Net Rentable Area of the Building, parking in the Building
Garage shall be solely for Tenant; however, Tenant recognizes that throughout
the Term the Adjacent Garage will be used by others in accordance with the terms
of the REA. Landlord shall not enforce the aforementioned rules and regulations
as to Tenant in a manner that is more restrictive than Landlord's enforcement of
such rules and regulations as to any other tenant of the Building.
(e) Notwithstanding anything to the contrary contained herein, if at
any time during the Renewal Term(s), Tenant is required to pay for the Parking
Permits leased to Tenant hereunder pursuant to the terms of this Lease, Landlord
may require (i) that such payment be made directly to the operator of the
Parking Facility, and (ii) that Tenant enter into a direct contract with such
operator for such Parking Permits; provided, however, in no event shall the
terms of any such direct contract conflict with the terms of this Section 3.4.
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3.5 Building Name and Signs.
(a) As used in this Lease, "Condition" shall mean Tenant leases at
least fifty-one percent (51%) of the Net Rentable Area of the Building. The
Building is currently named "Galleria North, Tower I." For so long as the
Condition is satisfied, upon furnishing at least ninety (90) days prior written
notice to Landlord, Tenant shall have the right to rename the Building from time
to time during the Term to the name of any permitted assignee of all of Tenant's
interest under this Lease pursuant to Section 8.1(a) which is a Permitted
Affiliate, to an Affiliate of Tenant, or to any new name of Tenant (to the
extent of a change in Tenant's name during the Term), subject to Landlord's
consent to such new name for the Building (which consent shall not be
unreasonably withheld); provided, however, in no event shall Tenant be permitted
to change the name of the Building more than one (1) time in any one (1) Lease
Year. If Tenant changes the name of the Building, Tenant shall be obligated to
reimburse Landlord for all costs incurred by Landlord to change any signs (the
"Identity Signs") identifying the name of the Building and/or the Project plus a
fee to Landlord in accordance with Exhibit K only to the extent the Base
Building or Base Building Systems are affected by such change.
At such time as the Condition is no longer satisfied, Landlord shall
be permitted to change the name of the Building and/or the Project at any time
and from time to time during the Term to a name selected by Landlord in its sole
discretion and to remove, replace and/or alter any of the Identity Signs.
(b) The following exterior signs (collectively, the "Signs") for the
Building shall be installed and maintained by Landlord, at Tenant's sole cost
and expense, the cost therefor to be separately billed to Tenant:
(i) for so long as the Condition is satisfied, two (2) parapet
signs, bearing the "▇▇▇▇▇" name and/or logo (or a Permitted Affiliate of
Tenant to the extent permitted in subsection (d) below), on any two (2)
faces of the Building (the "Parapet Signs"). The Parapet Signs will be (A)
in substantial conformance with the parameters attached hereto as Exhibit
N and made a part hereof (the "Sign Parameters"), (B) in compliance with
Legal Requirements and the REA, and (C) otherwise as mutually agreed to by
Landlord and Tenant, each acting reasonably. The Parapet Signs will be
installed and operational on or before the Commencement Date (subject to
Force Majeure Delays and Tenant Delays). In no event shall Landlord permit
any other parapet signs to be located on the Building so long as the
Condition is satisfied.
(ii) for so long as the Condition is satisfied, a monument
sign bearing the "▇▇▇▇▇" name and/or logo (or such other name of the
Building chosen by Tenant pursuant to subsection (a) above), located on
the Project Plaza in the location shown on Exhibit A-4 (the "Project
Monument Sign"). The Project Monument Sign shall be installed on or prior
to the Commencement Date (subject to Force Majeure Delays and Tenant
Delays). The Project Monument Sign shall be for the exclusive use of
Tenant. The Project Monument Sign shall be (A) in substantial conformance
with the Sign Parameters, (B) in compliance with Legal Requirements and
the REA, and (C) otherwise as mutually agreed to by Landlord and Tenant,
each acting reasonably.
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(iii) for so long as Tenant leases at least twenty-five
percent (25%) of the Net Rentable Area of the Building, a monument sign
bearing the name of tenants of the Complex, including Tenant, shall be
located on the Complex Common Areas in a location selected by Landlord in
accordance with Section 12.1(e) of the REA ("Complex Monument Sign"). The
Complex Monument Sign shall be installed on or prior to the Commencement
Date (subject to Force Majeure Delays and Tenant Delays). The Complex
Monument Sign shall contain two (2) columns, each of which may contain up
to three (3) names or other listings, and Tenant's name shall be listed on
the one column designated for the Building under the REA; provided,
however, so long as Tenant leases (x) one hundred percent (100%) of the
Net Rentable Area of the Building, the column on the Complex Monument Sign
designated for the Building shall contain only Tenant's name (subject to
subsection (d) below), and (y) fifty-one percent (51%) of the Net Rentable
Area of the Building, Tenant's name shall be located at the top of the
column on the Complex Monument Sign designated for the Building under the
REA. The Complex Monument Sign shall be (A) in substantial conformance
with the Sign Parameters, and (B) in compliance with Legal Requirements
and the REA.
(iv) a monument sign which is to be located on the property
described on Exhibit A-5 (the "Tollway Sign") which will identify the
Complex as the "Galleria North" and will include Tenant's name. The design
of the Tollway Sign shall be subject to Tenant's approval (which Tenant
may withhold in its reasonable discretion). So long as this Lease remains
in force and effect, no tenant of the Complex (other than Tenant) and no
Building name or hotel operator may be named or listed on the Tollway Sign
without Landlord's and Tenant's prior written consent thereto, each acting
in its sole discretion. The Tollway Sign shall be installed on or prior to
ninety (90) days after the Commencement Date (subject to Force Majeure
Delays and Tenant Delays). The Tollway Sign shall be in compliance with
Legal Requirements.
The costs of installing the initial Signs in clauses (i), (ii) and
(iv) above and a portion (which portion shall be determined pursuant to the
terms of the REA) of the costs of installing the Signs in clause (iii) above
shall be included in the Project Costs. If Landlord and Tenant agree to permit a
hotel operator for any hotel in the Complex to install its name on the Tollway
Sign pursuant to clause (iv) above and such hotel operator pays to Landlord any
portion of the costs of installing such sign, such sums paid to Landlord shall
be applied to reduce Project Costs. The Signs shall be cleaned, repaired and
maintained by Landlord, at Tenant's sole cost and expense (the cost therefor to
be billed separately to Tenant); provided, however, the cost of repairing and
maintaining the Complex Monument Sign shall be allocated to the Project pursuant
to the terms of the REA and included in Operating Expenses. Tenant shall be
obligated to reimburse Landlord for any costs incurred by Landlord in connection
with any changes made to the Signs at Tenant's request (to the extent permitted
hereunder) after the initial installation thereof.
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At such time as the Condition or any other applicable threshold
provided in this subsection (b) is no longer satisfied, Landlord shall be
permitted to remove, replace and/or alter (at Landlord's sole cost and expense)
any of the Parapet Signs and/or Tenant's name on the Project Monument Sign or
the Complex Monument Sign for which the applicable threshold is no longer
satisfied (including, without limitation, by placing the name of Landlord, any
other tenant of the Complex, or any other entity on such signs).
(c) Landlord reserves the right to grant, pursuant to the REA, one
(1) additional exterior monument sign on the Project Plaza to other tenants of
the Building during any period Tenant does not lease at least eighty percent
(80%) of the Net Rentable Area of the Building; provided, however, (x) during
any period Tenant does not lease one hundred percent (100%) of the Net Rentable
Area of the Building, Landlord may grant one (1) additional exterior monument
sign on the Project Plaza to a tenant of the Building which leases a minimum of
two (2) full floors of the Building; and (y) in no event may Landlord install a
monument sign on the Project Plaza which is larger than the Project Monument
Sign at the time of its installation and the lettering on such additional
monument sign shall not be larger than the lettering on the Project Monument
Sign at the time of the installation of such lettering.
(d) Landlord and Tenant agree that for all purposes of this Section
3.5 (including the immediately following paragraph), all references to "Tenant"
under this Section 3.5 shall mean only "Company." As a result thereof, and
notwithstanding anything to the contrary set forth in this Lease, the rights
granted to Tenant under this Section 3.5 shall inure only to the benefit of
Company, shall not be assignable by Company and shall not be enforceable by any
assignee or sublessee of Company, except that the rights granted to Company
under this Section 3.5 shall be assignable to any Permitted Affiliate(s) of
Company to whom the entire interest of Tenant under this Lease is assigned in
accordance with the provisions of Section 8.1(a) hereof, but such Permitted
Affiliate shall be obligated to pay the reasonable costs of changing the name on
the Signs to that of the Permitted Affiliate, plus a fee to Landlord in
accordance with Exhibit K only to the extent the Base Building or Base Building
Systems are affected by such change.
Notwithstanding the foregoing restrictions on sublessees of Tenant,
during any period during the Initial Term Tenant leases at least eighty percent
(80%) of the Net Rentable Area of the Building, Tenant shall be permitted to
grant to one sublessee of Tenant which subleases and occupies (and only during
the period of such occupancy) a minimum of three (3) full floors in the Building
the right to install such subtenant's name on the Project Monument Sign and the
Project's portion of the Complex Monument Sign as determined pursuant to the
terms of the REA, subject to the following conditions:
(1) Landlord consents to the name (or any changes
thereto) to be installed on such signs, which consent shall not be
unreasonably withheld;
(2) Tenant complies with the terms of the REA in
locating such additional name on such signs, which Tenant recognizes
may require Tenant to reduce the size of its name on such signs;
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(3) The costs resulting from such installation shall be
borne by Tenant plus a fee to Landlord in accordance with Exhibit K
only to the extent the Base Building or Base Building Systems are
affected by such installation; and
(4) Landlord shall be permitted to remove such name (at
Tenant's cost and expense) at the expiration of the Initial Term
(even to the extent Tenant exercises a Renewal Option).
If Tenant installs a subtenant's name on the Project Monument Sign or the
Complex Monument Sign pursuant to the terms of this paragraph, and thereafter
Tenant's leases less than one hundred percent (100%) of the Net Rentable Area of
the Building, Tenant shall not be obligated to remove such subtenant's name
unless and until the earlier to occur of (i) the expiration of the Initial Term,
or (ii) such subtenant's sublease expires or is earlier terminated (which
removal shall be at Tenant's cost and expense). In no event shall more than one
(1) name of a sublessee of Tenant be located on the Project Sign and Complex
Monument Sign at any one (1) time.
(e) Except for the signage described in this Section 3.5 (including,
without limitation, the signage described in subsection (c) above), no
additional signs may be placed or allowed to remain on the Project Plaza (other
than directional and traffic signs or signs required by the REA) without
Tenant's prior written consent, which consent may be withheld in Tenant's sole
discretion; provided, however, if, from time to time, more than one (1) full
Floor of the Building is unoccupied and held by Landlord for lease, Landlord may
place signs on the Project Plaza advertising such space (or any portion thereof)
so long as Tenant approves (which approval shall not be unreasonably withheld)
the size, design, location, and content of any such sign.
3.6 Communications Equipment.
(a) Subject to the provisions of this Section 3.6, Tenant shall have
the right, at its sole cost and expense and for its use, to install, maintain
and operate in the area of the Building roof shown on Exhibit B attached hereto
(the "Communications Area") terrestrial communication dishes, not to exceed two
(2) feet in diameter, and rooftop communication antennae, not to exceed ten (10)
feet in height, which shall be subject to Landlord's approval, which approval
shall not be unreasonably withheld, for use by Tenant in the conduct of its
business (the "Communications Equipment"); provided, however, (i) such
Communications Equipment may not extend beyond the boundaries of the
Communications Area and may not compromise the aesthetics or appearance of the
Complex in Landlord's reasonable discretion, (ii) Landlord shall not be
obligated to incur any expense in accommodating the Communications Equipment
which is not included in the Project Costs, and (iii) such Communications
Equipment cannot interfere with any other equipment then located elsewhere
within the Complex. Tenant agrees that Landlord shall be permitted to design and
erect visual barriers around the Communications Equipment, the costs of which
(other than the cost of constructing the Base Building Improvements, such as the
Building parapet and curtain walls, but only to the extent such Base Building
Improvements would have been installed by Landlord if the Communications
Equipment were not located on the Building roof) shall be borne entirely by
Tenant, provided such barriers do not materially interfere with the function of
the Communications Equipment. Notwithstanding the foregoing, upon Landlord's
request, Tenant agrees that if at the time of Landlord's request the
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Communications Equipment is located on the roof of the Building, Tenant (at
Tenant's cost and expense) will relocate all or any portion of the
Communications Equipment to another area of the Complex selected by Landlord and
permitted by the REA if (i) such relocation is required by Legal Requirements,
and (ii) such new location would not materially compromise the function of the
relocated equipment. Additionally, notwithstanding the foregoing, Tenant agrees
at anytime after Tenant initially installs the Communication Equipment on the
roof of the Building, upon Landlord's request, if at the time of Landlord's
request the Communications Equipment is not located on the roof of the Building,
Tenant (at Landlord's cost and expense) will relocate all or any portion of the
Communications Equipment to another area of the Complex selected by Landlord and
permitted by the REA if such new location will not materially compromise the
function of the relocated equipment; provided, however, that if such relocation
is required by Legal Requirements, then, such relocation shall be at Tenant's
cost and expense. If the Communications Equipment is relocated to the roof of
the Adjacent Garage, Tenant shall be obligated to sign a license agreement with
the owners of the Adjacent Garage, and in no event shall a default by the owner
of the Adjacent Garage under any such license agreement be a default by Landlord
under this Lease. Tenant agrees to comply with the REA with respect to any
relocated Communications Equipment.
(b) Tenant agrees to pay all reasonable costs incurred by Landlord
associated with Landlord's review of the plans for the Communications Equipment
and with Tenant's installation, operation, utilization, replacement, maintenance
and/or removal of such Communications Equipment. The costs of the initial
installation of the Communications Equipment may be reimbursed from the
Improvements Allowance for any such equipment installed as a part of the Tenant
Improvements pursuant to Exhibit D-1. The Communications Equipment must be (i)
designed, installed and operated in complete compliance with all Legal
Requirements, and (ii) installed and operated so as not to adversely affect or
impact structural, mechanical, electrical, elevator, or other systems of or
serving the Building or the Complex or customary telephone service for the
Building or Complex and so as not to cause injury to persons or property.
(c) Tenant shall be permitted to employ Outside Contractors to
undertake the installation of its Communications Equipment, subject to the
provisions of Exhibit D-2 (including without limitation Landlord's approval of
the qualifications of such contractors). Any such work conducted in connection
with the installation of the Communications Equipment must be done in accordance
with Exhibit D-2 and the Project Rules or any other reasonable regulations
promulgated by Landlord pertaining to construction in or on the Project by all
third party contractors of the same or similar trades.
(d) Landlord hereby grants to Tenant the right to install (at
Tenant's sole cost and expense), subject to the provisions of Section 5.2(c)
hereof and Exhibit D-2, any additional equipment required to operate the
Communications Equipment and to connect the Communications Equipment to Tenant's
other machinery and equipment located in the Leased Premises (e g., conduits and
cables) in the shafts, ducts, chases and utility closets located in the core of
the Building (the "Additional Equipment"), which Additional Equipment shall be
deemed a part of the Communications Equipment for all purposes of this Section
3.6; provided, however, that (i) the use of such space in the Building core by
Tenant (except customary chases for cabling) may not adversely affect the
marketability of the remaining space on any floor of the Building, as reasonably
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determined by Landlord, adversely affect or impact the structure of the
Building, the Base Building Systems or the capacity in the core for the Base
Building Systems, adversely affect or impact Landlord's ability to provide
Building Standard Services to any tenant of the Building, or increase Operating
Expenses (unless Tenant agrees in writing to pay any such increase in Operating
Expenses), (ii) to the extent any such Additional Equipment occupies space
(other than space in customary chases for the Base Building) that would have
otherwise been Net Rentable Area on a floor of the Building, such space shall be
included within the Net Rentable Area of the Leased Premises and Tenant shall be
obligated to pay Base Rental as to such space at the rates and at the times
specified in Section 2.2 above, and (iii) Tenant shall be obligated to reimburse
Landlord for all reasonable costs incurred by Landlord in connection with
Landlord's review of the plans for the Additional Equipment and with Tenant's
installation, operation, utilization, replacement, maintenance and removal of
such Additional Equipment.
(e) Subject to the Project Rules and other reasonable rules relating
to access control and safety that may be promulgated by Landlord pertaining to
access by tenants to the Communications Area and provided Tenant does not
unreasonably disturb any other tenants of the Building, Tenant and Tenant's
Outside Contractors shall have reasonable access to the Communications Equipment
and the Additional Equipment for purposes of operating, servicing, repairing or
otherwise maintaining said equipment.
(f) Tenant hereby indemnifies and holds Landlord harmless from all
costs and expenses (including reasonable attorneys' fees and costs of suit),
losses, damages or liabilities arising out of the design, installation,
operation, maintenance, use, and removal by Tenant of the Communications
Equipment and the Additional Equipment.
(g) So long as Tenant leases one hundred percent (100%) of the Net
Rentable Area in the Building and the Communications Equipment is located on the
roof thereof, Tenant shall have the exclusive right to use the Communications
Area for communications equipment. If, however, at any time during the Term
Tenant then leases less than one hundred percent (100%) of the Net Rentable Area
in the Building, (i) Tenant shall no longer have the exclusive right to use the
Communications Area for communications equipment, and (ii) the portion of the
Communications Area available to Tenant for its communications equipment shall
be reduced proportionately, based on the relationship between the total Net
Rentable Area of the Leased Premises then contained within the Leased Premises
and the total Net Rentable Area of the Building. Except as expressly provided
above, nothing contained in this Section 3.6 shall be deemed to prohibit or
restrict any other individual or entity, including without limitation Landlord
or any other tenant of the Building, from installing communications equipment in
the Communications Area or elsewhere in the Project or the Complex or to use
such areas for any other purpose; provided, however, Landlord shall not install
or permit the installation of communications equipment in the Communications
Area if the proposed equipment would materially and adversely interfere with the
operations of the Communications Equipment then located therein.
(h) Tenant agrees to reimburse Landlord for all reasonable costs and
expenses incurred by Landlord pursuant to this Section 3.6 within thirty (30)
days after receipt by Tenant of an invoice therefor from Landlord.
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ARTICLE IV
CARE OF PREMISES: LAW, RULES AND REGULATIONS
4.1 Care of Leased Premises. Upon the expiration or any earlier
termination of this Lease, Tenant shall surrender the Leased Premises to
Landlord in good condition, except for ordinary wear and tear and any casualty
or condemnation damage not required to be repaired or restored by Tenant
pursuant to the terms of this Lease. Upon such expiration or termination of this
Lease, Landlord shall have the right to re-enter and resume possession of the
Leased Premises immediately.
4.2 Entry for Repairs and Inspection. Landlord and its contractors,
agents or representatives may enter into and upon any part of the Leased
Premises (x) during reasonable hours as may be necessary to clean the same, make
repairs, alterations or additions thereto or otherwise perform Landlord's
obligations under this Lease, (y) upon reasonable prior notice to Tenant, for
the purpose of showing the same to existing or prospective purchasers, lenders
or investors or their respective agents, and (z) to prospective tenants (i) at
any time that an Event of Default is in existence, or (ii) upon reasonable prior
notice to Tenant, at anytime during the last twenty-four (24) months of the
Term, or such earlier date that Tenant provides written notice to Landlord that
Tenant will not exercise the next Renewal Option pursuant to Section 9.1 hereof.
With respect to any of the aforementioned entries by Landlord into and upon any
part of the Leased Premises other than for emergencies, cleaning, maintenance
and routine repairs, Tenant shall be entitled to have a representative accompany
Landlord. Tenant shall not be entitled to any abatement or reduction of Rent by
reason of any such entry by Landlord. Landlord shall use its reasonable efforts
not to interfere materially with the operation of Tenant's business during any
such entry. Notwithstanding any of the foregoing, unless otherwise instructed by
Tenant in writing, Landlord shall not enter areas designated by Tenant as high
security areas (the "Security Areas") (provided Tenant has furnished Landlord
with prior written notice of the location of the Security Areas) unless (a)
Landlord shows reasonable cause and provides forty-eight (48) hours advance
notice, or (b) an emergency situation exists in respect of which emergency
situation the provisions of Section 3.2 shall apply. To the extent that
Landlord's access to any portion of the Leased Premises (including without
limitation the Security Areas) is restricted or limited by Tenant, Landlord
shall be relieved of its obligations to perform those covenants that require
access to such space during the time Landlord is denied access to such space.
4.3 Nuisance. Tenant shall conduct its business and control its
agents, employees, invitees, contractors and visitors in such a manner as not to
create any nuisance, or unreasonably interfere with, annoy or disturb, any other
tenant of the Complex or Landlord in its operation of the Project.
4.4 Laws and Regulations; Rules of Project.
(a) Tenant shall comply with, shall cause its employees and agents
to comply with, shall use its reasonable efforts to cause its visitors and
invitees to comply with, and shall correct any situation that results from
Tenant's contractors' failure to comply with, all Legal Requirements relating to
the use, condition or occupancy of the Leased Premises (and Tenant shall comply
with all other Legal Requirements applicable to Tenant to the extent necessary
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to perform Tenant's obligations under this Lease), and with the rules of the
Project reasonably adopted and altered by Landlord from time to time (and,
during such period Tenant leases at least fifty percent (50%) of the Net
Rentable Area in the Building, approved by Tenant, which approval shall not be
unreasonably withheld) for the safety, protection, care and cleanliness of the
Leased Premises, the Building and the Project, the operation thereof, the
preservation of good order therein and the comfort of the tenants of the
Building and their agents, employees and invitees, consistent with First Class
Building Standards, which rules and regulations shall be binding upon Tenant
(subject to Tenant's approval to the extent only provided above) upon Tenant's
receipt of notice of the adoption or alteration of such rules and regulations
(the "Project Rules"). The initial Project Rules are attached hereto as Exhibit
R. In the event of a conflict between the provisions of this Lease and the
Project Rules, the provisions of this Lease shall control. Landlord shall not
enforce the Project Rules with respect to Tenant in a manner that is more
restrictive than Landlord's enforcement of the Project Rules as to any other
tenants of the Building.
(b) Landlord shall comply with all applicable Legal Requirements
(including without limitation Environmental Laws [defined below]) relating to
the Base Building to the extent necessary to perform Landlord's obligations
under this Lease (except to the extent that such Legal Requirement relates to a
tenant's (including Tenant's) obligations under its lease or other third party,
in which case Landlord shall exercise reasonable efforts to cause compliance by
such tenant (other than Tenant) or other third party). Landlord shall not
default under the REA to the extent such default would cause Landlord to not
meet its obligations to Tenant under this Lease, and Tenant shall not violate
this Lease so as to cause Landlord to be in default under the REA. Landlord
shall not cause to be installed in the Base Building or in the initial Tenant
Improvements any material containing asbestos or any equipment or materials
containing PCB's.
4.5 Legal Use and Violations of Insurance Coverage. Tenant shall not
occupy or use the Leased Premises, or permit any portion of the Leased Premises
to be occupied or used, for any business or purpose that (i) is unlawful, (ii)
is hazardous in any manner, (iii) creates noxious or offensive odors emanating
from the Leased Premises, or (iv) does anything that would in any way increase
the rate of, or cause the cancellation of, any fire, liability, or other
insurance coverage on the Project or its contents, unless Tenant pays for the
cost of such increased insurance premiums. Without limiting the provisions of
the preceding sentence or any of the provisions of Section 4.4 above, Tenant
shall comply with all applicable Legal Requirements regarding health, safety or
the environment (the "Environmental Laws") relating to the use, condition or
occupancy of the Leased Premises, including without limitation the application
for and maintenance of all required permits, the submittal of all notices and
reports, proper labeling, training and recordkeeping, and timely and appropriate
response to any Release (defined below) or other discharge of a substance under
Environmental Laws. In no way limiting the generality of the foregoing and
notwithstanding anything to the contrary contained in this Lease, Tenant shall
not cause or permit any Hazardous Materials (defined in Section 11.4 hereof) to
be used, generated, treated, installed, stored or disposed of in, on, under or
about the Leased Premises or the Complex except to the extent consistent with
the customary and reasonable business practice of entities conducting businesses
similar to the business being conducted by Tenant in the Leased Premises in
Comparable Buildings; provided, however, (1) such Hazardous Materials do not
endanger the health of any person on or about the Leased Premises or the
Complex, (2) Tenant complies with all Legal Requirements applicable to such
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Hazardous Materials, and (3) it is understood and agreed that with regard to
such Hazardous Materials, the obligations of Tenant in this Section 4.5 shall
apply [including without limitation, Tenant's obligation to clean up, remove,
restore or take other remedial action with respect to any such Hazardous
Material] even though Tenant is permitted pursuant to this sentence to cause
such substance to be used in the Leased Premises subject to the limitations set
forth above. It is hereby agreed that possession and use of copy machines and
machines used to electronically accept written data which utilize small amounts
of chemicals which may be included in the definition of Hazardous Materials
shall be considered "customary and reasonable business practices" within the
meaning of the previous sentence. Additionally, Tenant shall not permit to be
present upon the Leased Premises, or contained in any transformers or other
equipment thereon, any PCB's. "PCB" means any oil or other substance containing
polychlorinated biphenyl (as defined in 40 CFR 761.3). Tenant shall not permit
any asbestos, or any structures, fixtures, equipment or other objects or
materials containing asbestos on the Leased Premises. Tenant shall immediately
notify Landlord of the presence of any Reportable Quantity (defined below) of a
Hazardous Material on or about the Leased Premises. As used in this Lease,
"Reportable Quantity" shall mean that amount defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, the
Federal Water Pollution Control Act, as amended, pertinent regulations
thereunder or other relevant Environmental Laws.
4.6 REA Rights. The entire Complex is subject to the provisions of
the REA. Landlord shall have the right to act, make decisions and give approvals
with respect to, and amend, the REA from time to time throughout the Term
without the consent of Tenant except as and to the extent expressly set forth in
this Section 4.6:
(a) If Landlord agrees to any amendment to the Initial REA or REA
which directly or indirectly changes the method of allocation of costs of
designing, developing and constructing the Common Improvements (as defined in
the Initial REA) pursuant to the REA in a manner that would be adverse to Tenant
without the consent of Tenant (which consent may be withheld by Tenant in its
sole discretion), then for purposes of determining Project Costs under this
Lease, the allocation of costs of designing, developing and constructing the
Common Improvements to the Project shall be applied as if such amendment had not
been entered into and shall instead be determined in accordance with the Initial
REA (provided, however, the foregoing does not restrict changes in the
allocation percentages provided for in the REA subject to Section 4.6(d)(i)(1)
and (2) below);
(b) If Landlord agrees to any amendment to the Initial REA or the
REA (excluding equitable adjustments provided in Section 5.2(c) of the REA for
which Tenant's consent shall not be required and the provisions hereof shall not
apply) which directly or indirectly changes the manner in which any expenses
(other than those addressed in subsection (a) above) are allocated under the
Initial REA among Tower I Owner, Tower II Owner and Hotel Owner (each as defined
in the Initial REA) with the result that (i) Tenant's Additional Rental, (ii)
Tenant's Forecast Additional Rental, (iii) Operating Expenses, (iv) taxes,
assessments and government charges under Section 2.4(a)(ix) of this Lease, or
(v) expenditures for maintenance, management, service or operation of the
Complex (including, without limitation, the Adjacent Garage) attributable to the
Project under Section 2.4(a)(x) of this Lease are increased by more than five
percent (5%) in the applicable calendar year of Term above what any of such
items (i) through (v) would have been for such calendar year had such items been
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determined under the Initial REA without the consent of Tenant (which consent
may be withheld by Tenant in its sole discretion), then for purposes of
determining such items (i) through (v) above under this Lease, the applicable
allocation under the REA shall be applied as if such amendment had not been
entered into and such allocation shall instead be determined under the Initial
REA (however, Tenant acknowledges that the resolution of any arbitration of the
actual cost allocations as provided under the Initial REA shall be binding for
purposes of this Lease and the foregoing does not restrict changes in the
allocation percentages provided for in the REA subject to Section 4.6(d)(i)(1)
and (2) below). Additionally, if after the Commencement Date any capital
improvements are added to the Complex Common Areas which were not contemplated
by the Building Plans and Specifications and any such capital improvement (i) is
not required to be made by Legal Requirements or the Initial REA, (iii) does not
reasonably benefit the Building or the occupants thereof, or (iii) is not
consented to by Tenant (which consent may be withheld by Tenant in its sole
discretion), Landlord shall not include any allocation of the cost of installing
such capital improvement in Operating Expenses. The Hotel/Tower I Canopy
(defined in the REA) shall be subject to Tenant's approval and if approved by
Tenant, Tenant agrees that the cost (both installation and operational cost)
shall be allocated to the Project as provided in the REA and included in Project
Costs or Operating Expenses as applicable;
(c) Landlord will not agree to any amendment to the Initial REA or
the REA which would materially and adversely affect Tenant's rights in Section
3.4 of this Lease without the consent of Tenant (which consent may be withheld
by Tenant in its sole discretion);
(d) During the Term of this Lease (but only to the extent expressly
set forth below), Landlord will not consent to the following or agree to any
amendment to the Initial REA or the REA, as applicable, which would have the
effect of consenting to or modifying the following, as the case may be, as
expressly set forth in the Initial REA without the consent of Tenant as and to
the extent required below (all defined terms used in this Subsection (d) which
are not otherwise defined in this Lease shall have the meaning set forth in the
Initial REA):
(i) During the Term of this Lease, without the consent of
Tenant (which consent may be withheld by Tenant in its sole discretion):
(1) Article I: reduce the square footage numbers
included in the second sentence of the definition of "Gross Area"
for Tower I Tract, Tower II Tract and Hotel Tract or the definition
of "Gross Area Ratios" except in connection with a reduction in the
size of the Building pursuant to Section 1.3(c) of this Lease, in
which event the Gross Area of Building Improvements on Tower I Tract
shall be reduced by 24,000 square feet for each floor so reduced;
(2) Section 5.5(a): reduce the minimum parking ratios by
more than ten percent (10%); or
(3) Section 11.1(c): adjust the northern or southern
portion of the Hotel Tract as reflected on the Plot Plan in a manner
which would result in the northern boundary of the South Portion of
the Hotel overlapping the Building by more than eighty (80) feet.
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(ii) Only during such period of time as Tenant leases fifty
percent (50%) or more of the Net Rentable Area (as defined in this Lease)
of the Building (as defined in this Lease), without the consent of Tenant
(which consent may be withheld by Tenant in its sole discretion):
(1) Article I: prior to the completion of construction
and opening of the Hotel, modify the definition of "Four Diamond
Hotel" except to the extent of an equivalent American Automobile
Association Rating;
(2) Article I: increase the percentage set forth in the
definition "Tower II Reserved Spaces" unless the percentage in the
definition of "Tower I Reserved Spaces" is increased proportionately
(excluding increases resulting from increases in the size of the
Parking Deck);
(3) Article I: reduce the number of Parking Spaces set
forth in the definition of "Visitor Parking Spaces" below 120;
(4) Section 3.1(c): consent to changes to Tower II Plans
that would increase the height of Tower II above 14 stories or
changes to the Hotel Plans that would increase the number of guest
rooms in the Hotel to more than 250 rooms, decrease the number of
guest rooms to less than 170, or decrease the width of the Hotel
guest rooms to less than 13.5 feet;
(5) Section 5.3(a): increase the designated Shared
Spaces unless Tenant is allocated fifty percent (50%) of such Shared
Spaces;
(6) Section 5.6(b): increase the "oversell" percentage
of 15% of either Tower I Owner's or Tower II Owner's Allocable Share
of Parking Deck Spaces;
(7) Section 5.8: modify the hours of operation of the
Parking Deck;
(8) Article XI: consent to any amendment to Article XI
(Restrictions); or
(9) Article XII: consent to any amendment to Article XII
(Signage) or Exhibit F.
(iii) Only during such period of time Tenant leases more than
eighty percent (80%) of the Net Rentable Area (as defined in this Lease)
of the Building (as defined in this Lease), without the consent of Tenant
(which consent may be withheld in Tenant's sole discretion):
(1) Section 5.1: consent to any expansions of the
Parking Deck by Tower II Owner or Hotel Owner (however, Tenant's
consent shall not be required for the completion of the fifth (5th)
level of the Parking Deck pursuant to Section 5.11 of the REA or to
adding back spaces that were not constructed pursuant to Section
5.14 of the REA); or
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(2) Section 5.11: exercise Landlord's right to expand
the Parking Deck (however, Tenant's consent shall not be required
for the completion of the fifth (5th) level of the Parking Deck
pursuant to Section 5.11 of the REA).
(iv) Only during such period of time as Tenant leases fifty
percent (50%) or more of the Net Rentable Area (as defined in this Lease)
of the Building (as defined in this Lease), without the consent of Tenant
(which consent shall not be unreasonably withheld):
(1) Section 5.4: amend the provisions of Section 5.4;
(2) Section 5.10: consent to the Parking Deck Rules or
agree to materially modify the Parking Deck Rules;
(3) Section 6.1: consent to the Loading Dock Rules or
agree to materially modify the Loading Dock Rules; or
(4) Section 10.2: relocate the Tower I Communication
Area or the Tower II Communication Area from the general locations
shown on the Plot Plan attached to the Initial REA (except to the
extent such relocations are provided for in Section 10.2 of the
Initial REA).
(e) Tenant acknowledges and agrees that whenever Tenant's consent is
required under this Section 4.6, Tenant's consent (i) shall not be required to
the extent any of the foregoing action is required in order to comply with Legal
Requirements, and (ii) shall be deemed given if Tenant does not furnish written
notice to Landlord of its objection within fifteen (15) days of receipt of
Landlord's request (unless a period shorter than fifteen (15) days is expressly
provided in the REA, in which event Tenant must furnish its written objection to
Landlord two (2) days prior to the date Landlord must respond under the REA and
Landlord agrees to include in any such request the date by which Tenant must
respond).
(f) Landlord and Tenant agree that for all purposes of this Section
4.6, all references to "Tenant" under this Section 4.6 shall mean only
"Company." As a result thereof, and notwithstanding anything to the contrary set
forth in this Lease, the rights granted to Tenant under this Section 4.6 shall
inure only to the benefit of Company, shall not be assignable by Company and
shall not be enforceable by any assignee or sublessee of Company, except that
the rights granted to Company under this Section 4.6 shall be assignable to a
Permitted Affiliate of Company to whom the entire interest of Tenant under this
Lease is assigned in accordance with the provisions of Section 8.1(a) hereof.
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ARTICLE V
CONSTRUCTION OF IMPROVEMENTS AND REPAIRS
5.1 Base Building Improvements. Landlord shall provide and install
the Base Building Improvements in accordance with Exhibit C-1 in compliance with
Legal Requirements in effect prior to the Building Permit Date. In connection
with such installation of the Base Building Improvements, Landlord and Tenant
agree to comply with the following provisions:
(a) Landlord recognizes that changes in the working drawings of the
Base Building may be required to accommodate the Tenant Improvements, including
floor penetrations, increases to floor load requirements and other items. As
provided in Section 1.3, Tenant has approved the Preliminary Building Plans and
Specifications. For any Base Building changes hereafter requested by Tenant that
are included in the Final Bid Specifications and for any Base Building changes
requested by Tenant thereafter, within twenty (20) days after the General
Contractor (defined below) so advises Landlord (the "Twenty Day Period"),
Landlord will advise Tenant of the General Contractor's best estimate, which
estimates are not binding on Landlord or the General Contractor, of the number
of days of Tenant Delays that will be caused by such changes, any increase in
cost associated with such changes and any additional requirements necessary to
accommodate the noted changes. Provided Tenant notifies Landlord to proceed with
such changes within five (5) days of Tenant's receipt of Landlord's notice [or,
to the extent Tenant requests any such change while the construction of the Base
Building is progressing and Landlord responds to Tenant as quickly as possible
within the Twenty Day Period, such shorter period of time as Landlord shall
reasonably determine is necessary to meet the Building Construction Schedule
(defined in Section 5.1(b) below) and of which Tenant is advised] and Tenant
agrees (i) to reimburse Landlord for Landlord's actual expenses associated with
such Base Building modification including reasonable additional architectural
and engineering fees, and (ii) if applicable, to comply with Landlord's
additional reasonable requirements (such as changes in penetration locations
necessary because of the structure), then Landlord will proceed to make such
requested modifications to the Base Building. Notwithstanding the foregoing,
Landlord shall not be obligated to proceed with any requested modifications to
the Base Building if Landlord reasonably determines within the Twenty Day Period
that any such modification will adversely impact or jeopardize the Building
(including without limitation, the marketability thereof) or delay the Building
Construction Schedule or the Tenant Construction Schedule. Notwithstanding the
foregoing, if (x) Tenant agrees in writing that the entire delay in the Building
Construction Schedule or the Tenant Construction Schedule resulting from such
requested change to the Base Building will constitute a Tenant Delay (as to the
Building Construction Schedule) and a Tenant Improvement Delay (as to the Tenant
Construction Schedule) for all purposes of this Lease, and (y) the total of (i)
the aggregate of the number of days of Tenant Delays and Tenant Improvement
Delays Tenant has previously agreed to in writing under this sentence, Section
1.2(d) above, and the penultimate sentence under Section 1.3(e), plus (ii)
General Contractor's or Tenant Contractor's (as applicable) estimate of the
number of days of subject delay, is less than ninety (90) days, then Landlord
will proceed with such requested modification to the Base Building to the extent
that the other requirements above are satisfied.
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(b) Within sixty (60) days after commencement of actual construction
of the Base Building by the general contractor for the Base Building (the
"General Contractor") under its general contract, Landlord shall cause to be
prepared and delivered to Tenant a schedule with respect to the construction of
the Base Building (the "Building Construction Schedule"). Tenant may use the
Building Construction Schedule in planning its work to be done in, and its
contemplated move into, the Initial Leased Premises. Based upon the Building
Construction Schedule, as soon as practicable after delivery of the Building
Construction Schedule, Landlord shall work with Tenant's architects and Tenant
in preparing Tenant's proposed construction schedule (the "Tenant Construction
Schedule") generally detailing the timing of Tenant's work in the Initial Leased
Premises, whereupon Landlord shall notify Tenant if in Landlord's reasonable
judgment such Tenant Construction Schedule is reasonably expected to have a
materially adverse impact upon the Building Construction Schedule. Such Tenant
Construction Schedule shall include at least one hundred twenty (120) days for
construction of Tenant Improvements for each Major Portion and sufficient time
thereafter for delivery, assembly and set-up of Tenant's fixtures, furnishings
and equipment. Tenant shall notify Landlord concerning any proposed changes in
the Tenant Construction Schedule, whereupon Landlord shall notify Tenant if in
Landlord's reasonable judgment such change is reasonably expected to have an
adverse impact upon the Building Construction Schedule. In the event there is a
material change in the Building Construction Schedule which would materially
adversely affect the Tenant Construction Schedule, Landlord shall so notify
Tenant; provided, however, if Landlord changes the Building Construction
Schedule and such change is not caused or requested by Tenant or Tenant's
agents, architects, engineers, contractors or consultants, such resultant change
in the Tenant Construction Schedule shall not constitute a Tenant Delay.
(c) In any instance where, in Landlord's reasonable judgment,
Tenant's desired changes to the Base Building will adversely impact the
appearance, function or safety of the Building or the Project or the Building
Construction Schedule for the Base Building or for the leasehold improvements in
the Building other than the Leased Premises, Landlord reserves- the right to
disapprove any such desired Base Building modification. Furthermore, Tenant
shall be fully liable for all costs and expenses (including without limitation
costs resulting from associated delays and costs incurred by Landlord in
obtaining necessary permits and licenses) directly resulting from any Base
Building modifications or with any changes to the Building Construction Schedule
requested by or resulting from Tenant's construction activities, provided that
Landlord promptly (after receipt of the General Contractor's pricing estimate)
advises Tenant of such costs and expenses, which estimates are not binding on
Landlord or General Contractor, and provided further that Tenant shall be
entitled to apply any unspent portion of the Improvements Allowance against such
costs and expenses subject to the restrictions specified in Section 2.5.
(d) It is hereby stipulated that time is of the essence in
connection with Landlord's and Tenant's compliance with the terms of this
Section 5.1.
(e) Notwithstanding anything to the contrary contained in this
Lease, Tenant shall be obligated to pay to Landlord all Project Costs incurred
by Landlord under this Lease to the extent the Project Costs incurred by
Landlord exceed $170.00 per square foot of Net Rentable Area in the Initial
Leased Premises. The Project Costs shall be paid as follows:
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(i) Landlord shall pay all Project Costs until such time as
Landlord has paid Project Costs equal to $160.00 per square foot of Net
Rentable Area in the Building;
(ii) Then, all Project Costs shall be paid in the following
proportions:
Landlord - 66 2/3%
Tenant - 33 1/3%
until such time as Landlord has paid total Project Costs of $170.00 per
square foot of Net Rentable Area; provided, however, if at the time
Landlord has paid $160.00 per square foot of Net Rentable Area in the
Building, Landlord reasonably estimates that the remaining Project Costs
to. complete the Project are
(A) less than ten dollars ($10.00) per square foot of
Net Rentable Area, Tenant shall not be obligated to pay any portion
of the Project Costs until the earlier to occur of (1) the date
Landlord's estimate increases to in excess of $170.00 per square
foot in the aggregate, or (2) Landlord actually pays Project Costs
in excess of $170.00 per square foot; or
(B) more than ten dollars ($10.00) per square foot (the
"Estimated Excess"), Tenant shall be obligated to pay its
proportionate share as provided above until Tenant has paid the full
amount of the Estimated Excess and thereafter Tenant shall not be
obligated to pay its proportionate share unless and until the
earlier to occur of (1) such Estimated Excess increases, or (2)
Landlord actually pays more than the Estimated Excess.
(iii) Thereafter, all Project Costs shall be paid by Tenant.
Landlord and Tenant acknowledge and agree that the intent of this subsection (e)
is for Landlord to pay Project Costs of $170.00 per square foot of Net Rentable
Area in the Building and for Tenant to pay all Project Costs in excess of
$170.00 per square foot. At such time as the final Project Costs are determined
pursuant to Section 2.2(b), a reconciliation shall occur between Landlord and
Tenant so that Landlord and Tenant shall have paid the appropriate amounts
contemplated by this subsection (e).
5.2 Tenant Improvements.
(a) Landlord and Tenant shall cause the Tenant Improvements to be
constructed in accordance with Exhibit D-1. As provided in Exhibit D-1, Landlord
shall enter into the Construction Contract with the Tenant Contractor, and
Landlord shall serve as the construction manager for the Tenant Improvements and
shall be responsible for coordinating construction activities under the
Construction Contract with construction activities relating to the Base
Building.
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(b) Except as otherwise provided in Exhibit C-1, Tenant will be
responsible for the preparation of the Space Plans and Bid Documents for the
Tenant Improvements (as such terms are defined in Exhibit D-1), which plans and
specifications shall be prepared at Tenant's cost and expense in accordance with
Exhibit D-1, hereof. Tenant has selected Design Source, Inc. as the architect to
prepare the Bid Documents, and Landlord hereby approves such architect. Landlord
shall have the right to approve any proposed engineer to be employed by Tenant
for the Bid Documents and any change to the architect referred to above, which
approval shall not be unreasonably withheld. All Bid Documents are subject to
Landlord's reasonable approval as provided in Exhibit D-1. Tenant's architect
and engineer shall work and coordinate with ccrd Partners (Landlord's
mechanical, electrical and plumbing engineer) during the preparation of the Bid
Documents. All structural changes to the Base Building must be designed by
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇, Inc. (the Base Building engineer). Tenant's architect
shall be responsible for designing the Tenant Improvements at Tenant's sole cost
and expense, except as provided above. Landlord and Tenant shall comply with the
schedules set forth in Exhibit D-1 for the preparation, review, and approval of
such plans and specifications, or another schedule mutually agreed to by
Landlord and Tenant in writing. Landlord shall not be required, nor shall Tenant
be allowed, to install any improvements that (i) are not compatible with (or are
potentially damaging to) the Base Building structural, mechanical, electrical,
plumbing or other systems, (ii) adversely impact (in Landlord's reasonable
judgment) either the exterior appearance or operations of the Building or the
public areas thereof, (iii) are not approved by Landlord, which approval shall
not be unreasonably withheld, or (iv) do not comply with Legal Requirements.
Landlord shall be required to bear the expense of installing the Base Building
Improvements. The cost of all Tenant Improvements shall be for Tenant's account.
If Landlord requires the purchase of payment or performance bonds in connection
with the construction of the Tenant Improvements, the cost thereof will be
charged against the Improvements Allowance; however, Landlord agrees to notify
Tenant, upon written request of Tenant, whether Landlord will require such a
bond from any particular contractors Tenant desires to include in the pricing of
the Tenant Improvements work pursuant to Exhibit D-1. Additionally, Landlord
shall not charge a separate fee for acting as the construction manager for the
construction of the Tenant Improvements in the Initial Leased Premises, nor
shall such fee be charged against the Improvements Allowance; provided, however,
Landlord and/or HILP shall be entitled to collect the Development Fee.
(c) After the completion of the Tenant Improvements in accordance
with the Bid Documents, Tenant shall not make or allow to be made any material
alterations or physical additions in or to the Leased Premises, or place safes,
vaults, files, library shelves or other heavy furniture or equipment within the
Leased Premises, without first obtaining the written consent of Landlord to the
plans and specifications therefor, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, Tenant shall have the right to make
alterations and physical additions to the Leased Premises without Landlord's
consent provided: (i) Tenant notifies Landlord in writing and furnishes Landlord
with complete plans and specifications for all material alterations or additions
(including without limitation, those that affect Base Building Systems) or for
any alterations or additions for which plans are used at least fifteen (15) days
prior to undertaking them and in all events prior to awarding a construction
contract relating thereto, (ii) Tenant provides Landlord with "record" plans and
specifications related to any such material alterations or additions upon
completion of same, (iii) such alterations or additions are not visible from
public areas of the Project or from the exterior of the Leased Premises or the
Building, (iv) the modifications are in compliance with all Legal Requirements,
(v) such additions and alterations do not affect the Base Building Systems, or
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the structural integrity of the Project, (vi) Tenant coordinates its activities
with the Building's property manager, (vii) such modifications are not in
violation of this Lease and will not interfere with the use and occupancy of any
other portion of the Building by any other tenant or occupant of the Building,
(viii) all such modifications are constructed in a good and workmanlike manner
using first class construction materials and in accordance with this Lease
(including without limitation, Exhibit D-2), (ix) when completed, such
alterations will not cause the Leased Premises to be unsuitable for general
office use, and (x) the costs of such alterations then desired by Tenant do not
exceed $40,000.00. Tenant shall reimburse Landlord for the reasonable costs
incurred by Landlord to engage an engineer to review such conditions. If Tenant
selects Landlord to manage the construction of the aforesaid alterations or
additions, Tenant agrees to pay Landlord a cost recovery fee in accordance with
Exhibit K. If Tenant utilizes Outside Contractors, such work shall be performed
in accordance with Exhibit D-2. Notwithstanding the foregoing, any alterations,
modifications or additions that affect the connections of the life safety
systems and fire alarm systems into the Base Building and all other alterations,
modifications or additions that affect connections into a Base Building System
or the structural integrity of the Project shall be completed by Landlord at
Tenant's sole cost and expense, plus a fee to Landlord as provided in Exhibit K
only on that portion of the cost of the alterations, modifications or additions
which are related to the Base Building, Base Building Systems or the structural
integrity of the Project.
(d) "Non-removable Improvements" shall mean all mechanical equipment
above the ceiling (except computer, telephone, or telecommunications cables,
provided Tenant restores any damage caused by the removal of such items,
including, but not limited to, damage to the ceiling), the ceiling system, the
ceiling tile, light fixtures (other than chandeliers, provided Tenant replaces
the ceiling tile and leaves a connection for a replacement chandelier or
Building Standard fixture), walls, cabinets, wall coverings, wall penetrations
with pull strings, doors, door hardware, floor coverings (other than area rugs),
all electrical and plumbing systems and fixtures located within the Leased
Premises, blinds (but not curtains), and any other improvements necessary for
the Leased Premises to be a functional, integral unit. All Non-removable
Improvements and all other improvements not removed by Tenant shall become the
property of Landlord upon the expiration or any earlier termination of this
Lease; provided, however, Tenant must remove all movable equipment, furnishings,
furniture and trade fixture (that are not Non-removable Improvements) and if
Tenant fails to remove such items Landlord may have the same removed and stored,
all at Tenant's cost, and any resulting damage to the Leased Premises shall be
repaired at Tenant's expense, and if within thirty (30) days after the
termination or expiration of this Lease such items are not reclaimed by Tenant,
such improvements may be disposed of by Landlord in its sole discretion, without
reimbursement therefor to Tenant. Tenant shall be permitted to remove all
improvements to the Leased Premises (other than Non-removable Improvements),
including without limitation special millwork (except decorative moldings)
installed in the Leased Premises by Tenant at its cost and expense provided (i)
Tenant repairs any damage to the Leased Premises caused by the removal,
excluding reasonable wear and tear, (ii) after the removal the space can be
leased as a complete functional, integral unit (e.g., if the millwork was, or
served in lieu of, a wall, the wall is replaced), and (iii) an Event of Default
is not then in existence.
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(e) Except to the extent that such costs, losses, liabilities or
actions result from Landlord's willful misconduct, Tenant shall indemnify and
hold Landlord harmless from and against all costs (including reasonable
attorneys' fees and costs of suit), losses, liabilities, or causes of action
arising out of or relating to any alterations, additions or improvements made by
Tenant to the Leased Premises, including, but not limited to, any mechanic's or
materialman's liens asserted in connection therewith.
(f) Tenant shall have no authority or power, express or implied, to
create or cause to be created any mechanic's, materialmen's or other lien,
charge or encumbrance of any kind against the Leased Premises or the Complex, or
any portion thereof. Should any mechanic's, materialmen's or other lien, charge
or encumbrance of any kind be filed against any portion of the Complex or Leased
Premises by reason of Tenant's acts or omissions or because of a claim against
Tenant, Tenant shall cause the same to be canceled or discharged of record by
bond or otherwise within thirty (30) days after notice to Tenant by Landlord. If
Tenant shall fail to cancel or discharge said lien or liens within said thirty
(30) day period, Landlord may, at its sole option, cancel or discharge the same,
and upon Landlord's demand, Tenant shall promptly reimburse Landlord for all
costs incurred in canceling or discharging such liens, plus a fee to Landlord in
accordance with Exhibit K.
5.3 Repairs by Landlord. After the Tenant Improvements have been
installed in the Initial Leased Premises pursuant to the provisions of this
Lease, the maintenance of the Base Building, including but not limited to, Base
Building Improvements (except as provided below), and of the General Common
Areas, Common Areas, Service Areas and the exterior of the Project, including
(i) the roof, exterior walls (including glass curtain walls, windows, and doors
not within or entering into the Leased Premises), foundation and other
structural elements of the Building and Parking Facility, (ii) Base Building
Systems, and (iii) driveways, curbs, signs (except to the extent provided to the
contrary in Section 3.5), landscaping and exterior areas (including painting and
striping of parking areas), shall be Landlord's obligation and shall be
performed at Landlord's election either by Landlord or its designee under
Landlord's supervision, and Landlord, or Landlord's designee (which may be the
party entitled or designated under the REA to perform such maintenance within
the Complex); provided, however, that subject to Section 6.7 hereof, if any
damage to the Project or Adjacent Garage is caused by Tenant or Tenant's agents,
contractors or employees, and such damage is not covered by the insurance
carried by Landlord pursuant to the terms of this Lease or the proceeds of such
insurance are not sufficient to cover Landlord's reasonable costs to repair or
restore such damage (including without limitation, the payment to Landlord of a
cost recovery fee in accordance with Exhibit K), Tenant shall be obligated to
pay Landlord the amount by which the aforementioned reasonable costs exceed the
proceeds (if any) of the insurance carried by Landlord pursuant to the terms of
this Lease. Notwithstanding the foregoing, those items in Exhibit C-1 to be
installed at Tenant's expense shall also be maintained and repaired by Landlord
at Tenant's expense. Except for the foregoing, Landlord shall not otherwise be
obligated to make improvements to, or repairs of, the Leased Premises; provided,
however, Landlord, or Landlord's designee, may make such improvements to, or
repairs of, the Leased Premises as Tenant shall request in writing, at Tenant's
sole expense, at a cost equal to the costs incurred by Landlord for such
improvements, maintenance or repairs, plus a fee to Landlord for administrative
cost recovery in accordance with Exhibit K.
5.4 Repairs by Tenant. Subject to Section 5.3 hereof, Tenant shall,
at its own cost and expense, keep the Leased Premises and all Leasehold
Improvements in a good and presentable condition, normal wear and tear excepted
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and, subject to any casualty or condemnation not required to be repaired by
Tenant and any janitorial services to be provided by Landlord pursuant to
Section 3.1(a)(iv) hereof. Notwithstanding the foregoing, if any of the repairs
Tenant is obligated to make pursuant to this Section 5.4 affect the connections
of the life safety systems and fire alarm systems in the Base Building and all
other repairs that affect connections into a Base Building System or the
structural integrity of the Project shall be completed by Landlord at Tenant's
sole cost and expense, including the payment to Landlord of a cost recovery fee
in accordance with Exhibit K only on that portion of the cost of the repairs
which are related to the Base Building, Base Building Systems or the structural
integrity of the Project. In addition to the other remedies available to
Landlord pursuant to this Lease, if Tenant fails to commence any repairs Tenant
is obligated under this Section 5.4 to make to the Leased Premises and the
Leasehold Improvements within thirty (30) days after written notice from
Landlord to Tenant and, thereafter, diligently proceed with such repair work
until completion, then Landlord may, at its option, make such repairs or any
replacements deemed necessary by Landlord, and Tenant shall pay to Landlord on
demand Landlord's actual cost thereof, plus a fee to Landlord in accordance with
Exhibit K.
5.5 Payments by Tenant. Tenant agrees that all payments to Landlord
required under this Article V shall be made to Landlord within thirty (30) days
of receipt by Tenant of an invoice and supporting documentation from Landlord
indicating the amount owed to Landlord pursuant to this Article V.
5.6 Management. The property management company acting as property
manager for the Project shall be (i) a ▇▇▇▇▇ Manager, (ii) a person or entity of
recognized standing, experience and capability that is engaged in the property
management business and that it or an Affiliate thereof (or their respective
predecessors or principals) shall have under management, for at least five (5)
consecutive years experience immediately prior to undertaking management of the
Project, at least 2,500,000 square feet of net rentable area of commercial
office space (which may include related retail space) in major metropolitan
areas in the United States, (iii) if Landlord is a Financial Institution
(defined in Section 11.4) or an Affiliate of a Financial Institution, and such
Financial Institution utilizes a property management firm in which it or any of
its Affiliates owns an interest, such property management firm, or (iv) a
property management company reasonably acceptable to Tenant. In any event,
Tenant shall have the right to interview the individual who is the on-site
property management representative. Landlord and Tenant shall jointly (each
acting reasonably) select the designated on-site property management
representative, and Tenant must approve any replacement for such on-site
property management representative, which approval shall not be unreasonably
withheld. In no event shall any of the foregoing requirements apply to the
hiring of brokers or leasing agents.
ARTICLE VI
CONDEMNATION, CASUALTY AND INSURANCE
6.1 Condemnation.
(a) If (1) all or substantially all of the Leased Premises should be
permanently taken or condemned for any public purpose, or (2) such portion (but
at least thirty percent (30%)) of the Leased Premises as would render the
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continuance of Tenant's business from the Leased Premises impracticable should
be permanently taken or condemned for any public purpose, then this Lease, at
the option of Tenant upon the giving of notice to Landlord within thirty (30)
days from the date of such condemnation or taking, shall forthwith cease and
terminate as provided in Section 6.1(c) below.
(b) If all or substantially all of the Project, or so much thereof
as to cause the remainder not to be economically feasible to operate, as
reasonably determined by Landlord (and such determination shall be deemed
reasonable to the extent based upon Landlord's failure to receive condemnation
awards or proceeds sufficient to repair the Project as required by this Section
6.1), should be permanently taken or condemned for any public purpose, then
Landlord shall have the option of terminating this Lease by notice to Tenant
within thirty (30) days from the date of such condemnation or taking.
(c) If this Lease is terminated as provided in subsections (a) or
(b) above, this Lease shall cease and expire as if the date of transfer of
possession of the Leased Premises, the Project, or any portion thereof, was the
expiration date of this Lease.
If this Lease is not terminated by either Landlord or Tenant as
aforesaid, Tenant shall pay all Rent up to the date of transfer of possession of
such portion of the Leased Premises so taken or condemned and this Lease shall
thereupon cease and terminate with respect to such portion of the Leased
Premises so taken or condemned as if the date of transfer of possession of the
Leased Premises was the expiration date of the Term relating to such portion of
the Leased Premises. Thereafter the Base Rental, Tenant's Forecast Additional
Rental, Tenant's Additional Rental and Tenant's Additional Rental Adjustment
shall be calculated based on the Net Rentable Area of the Leased Premises not so
taken or condemned. If any such condemnation or taking occurs and this Lease is
not so terminated, Landlord shall, to the extent practical, promptly repair the
Leased Premises or the Project, as the case may be, so that the remaining
portion of the Leased Premises or Project, as the case may be, shall constitute
a complete architectural unit, and in the case of the Leased Premises reasonably
fit for Tenant's occupancy and business as reasonably determined by Tenant and
Landlord (with any disagreement between Tenant and Landlord to be resolved by
arbitration pursuant to Section 10.1 hereof).
(d) If any taking or condemnation for any public purpose of the
Leased Premises or any portion thereof occurs for one hundred eighty (180) days
or less, then it shall be deemed a temporary taking and this Lease shall
continue in full force and effect except that Base Rental, Tenant's Forecast
Additional Rental, Tenant's Additional Rental and Tenant's Additional Rental
Adjustment shall be calculated based on the Net Rentable Area of the Leased
Premises not so taken, for the period of time that the Leased Premises are so
taken as of the date of transfer of possession of the Leased Premises, and
Landlord shall be entitled to the proceeds of such taking and shall be under no
obligation to make any repairs or alterations to the portion so taken.
(e) In the event of any condemnation or taking of the Leased
Premises, Tenant, or anyone claiming under it, at its expense may, jointly with
Landlord, appear, claim and prove, in proceedings relative to such taking, (i)
the value of Tenant's leasehold estate created by this Lease, (ii) the value of
any fixtures, furniture, furnishings, Leasehold Improvements and other personal
property that were condemned but which under the terms of this Lease Tenant is
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permitted to remove at the end of the Term, (iii) the unamortized cost of
Leasehold Improvements that are not so removable by Tenant at the end of the
Term and that were installed solely at Tenant's expense (i.e., not paid by
Landlord or with allowances provided by Landlord), and (iv) any relocation and
moving expenses as the result of such condemnation.
Any and all condemnation or similar proceeds that are awarded as a
lump sum or as separate awards made to Landlord and Tenant attributable to the
interest of Tenant under this Lease and the interest of Landlord in the Project
by the condemning authority (all of such proceeds being herein called the
"Condemnation Proceeds") shall, notwithstanding the termination of this Lease,
be divided as follows:
(1) If this Lease is terminated in its entirety, pro
rata to Landlord and Tenant in proportion to the value of their
respective properties, estates, rights and interests so taken.
(2) If this Lease is only partially terminated, then (a)
first, to the cost of repairing and restoring the untaken portion of
the Project, and (b) thereafter as set forth in clause (1) above.
(3) Notwithstanding the foregoing, however, if
Landlord's pro rata share determined pursuant to clause (1) above
shall be insufficient to retire the Required Amount (defined below),
Tenant's pro rata share payable to it under said clause (1) shall be
reduced by the amount that, when taken together with Landlord's pro
rata share, is equal to the Required Amount, provided that, for
purposes of this sentence only, Landlord's pro rata share shall be
deemed reduced by an amount equal to the lesser of (i) all payments
on account of condemnation that Landlord is obligated to make to
other tenants in the Building in accordance with their leases, or
(ii) the net amount all of said other tenants would be entitled to
receive from Landlord or the condemning authority on account of such
condemnation if each such lease contained a section identical to
this Section 6.1(e) and each such other tenant made a contribution
to Landlord (or had such tenant's pro rata share reduced) pro rata
according to the value of their respective leasehold estates in
accordance with this subsection (3). Additionally, notwithstanding
anything to the contrary set forth herein, in the event of such
condemnation or other taking affects Landlord's interest in the
Adjacent Garage or the Complex Common Areas, the term "Condemnation
Proceeds" shall include only Landlord's allocated share of the
proceeds from such condemnation or other taking applicable to such
areas, as determined by the REA.
As used herein, the term "Required Amount" shall mean the
total of (x) all sums required to be paid to any lender under any mortgage
or deed of trust burdening the Project, to the extent the proceeds of
which were used for the financing or refinancing of the cost of purchasing
and/or developing the Project and the Adjacent Garage or to pay for any
capital improvements for the operation of the Project and the Adjacent
Garage (and for purposes of this clause (e), if a foreclosure of the deed
of trust or mortgage securing such loan or proceeding or transfer in lieu
thereof shall have theretofore occurred, such calculation shall be made
without taking into account such foreclosure or any reduction in debt
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attributable to the consideration bid at foreclosure or any proceeding or
transfer in lieu thereof); (y) all of the Equity Contributions (defined
below); and (z) any amounts required to be paid to any lessor under any
land or ground lease then covering any portion of the Project Land. As
used herein, "Equity Contributions" shall mean the entire Outstanding
Project Costs (defined below) of the Project paid by Landlord and/or
funded by any equity financing source, minus that portion of such cost
that was financed or refinanced through loans to Landlord secured by any
mortgage or deed of trust described in clause (x). As used herein,
"Outstanding Project Costs" shall mean all Project Costs, plus the
unamortized cost of any capital improvements for the operation of the
Project and the Adjacent Garage that are not included in Operating
Expenses under this Lease or in operating expenses (as that term is
defined) in other leases of space in the Building.
If Landlord and Tenant are unable to agree as to such allocation,
the matter shall be submitted to arbitration pursuant to Section 10.1 hereof.
(f) Notwithstanding anything to the contrary contained in this
Section 6.1, a taking or condemnation for any public purpose of all or any
portion of the Parking Facility shall be governed by the provisions of Section
3.4(c) hereof and this Section 6.1 shall not apply thereto.
6.2 Damages from Certain Causes. Except for Landlord's willful
misconduct or gross negligence and subject to the other provisions of this
Lease, Landlord shall not be liable or responsible to Tenant for any loss or
damage to any property or person occasioned by theft, fire, act of God, public
enemy, riot, strike, insurrection, war, requisition or order of governmental
body or authority, court order or injunction, or any other cause beyond
Landlord's control; provided, however, Landlord shall not be liable or
responsible for any inconvenience or interruption in the conduct of Tenant's
business unless such interruption or inconvenience results from Landlord's
willful misconduct.
6.3 Casualty Clause.
(a) If any portion of the Project (specifically including the
Leasehold Improvements but excluding any other tenant's leasehold improvements)
(hereinafter collectively referred to as the "Damaged Property") is damaged by
fire, earthquake, flood or by any other casualty of any kind or nature (a
"Casualty"), then Landlord shall proceed promptly to rebuild or restore the
Damaged Property, subject to Section 6.3(b) and (d) hereof, and, with respect to
the rebuilding of the Leasehold Improvements, shall be paid a fee in accordance
with Exhibit K only to the extent there are sufficient proceeds available after
completion of the applicable restoration to pay such fee. If, in the reasonable
opinion of Landlord's architect, which Landlord shall cause its architect to
deliver to Tenant not more than thirty (30) days after the Casualty, the Damaged
Property cannot be repaired to the condition required in Section 6.3(d) below
within two (2) years after the date of such Casualty, then Tenant shall have the
right to terminate this Lease by notifying Landlord in writing of such
termination within thirty (30) days after receipt of Landlord's architect's
opinion. Any failure by Tenant to deliver such termination notice to Landlord by
such thirtieth (30th) day shall constitute a waiver of Tenant's right to
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terminate this Lease pursuant to this subsection (a) as a result of such
Casualty. If Tenant exercises its right to terminate this Lease pursuant to this
subsection (a), Landlord shall not be obligated to rebuild or restore the
Damaged Property. If a Casualty damages any of the Leasehold Improvements, the
two (2) year period described above shall be calculated assuming the Leasehold
Improvements will be rebuilt only to the Landlord Restored Condition (defined in
Section 6.3(d)).
(b) Landlord may elect to terminate this Lease on account of a
Casualty by delivering written notice to Tenant within thirty (30) days after a
Qualified Damage. As used herein, a "Qualified Damage" shall mean:
(i) There shall be damage to an extent greater than fifty
percent (50%) of the replacement cost of the Building above the
foundation, and such damage or destruction shall be caused by a risk (an
"insured risk") covered by insurance maintained or required to be
maintained (whether or not actually maintained) by Landlord pursuant to
this Lease; or
(ii) There shall be damage, resulting from a risk other than
an insured risk, to an extent greater than ten percent (10%) of the
replacement cost of the Building above the foundation; or
(iii) There shall be damage that cannot be repaired to the
Landlord Restored Condition within two (2) years after the occurrence of
such damage as reasonably estimated by Landlord's architect.
(c) Notwithstanding any language herein to the contrary, if at the
time of any Qualified Damage to the Project from a Casualty, less than one (1)
year remains in the Term (after taking into account any Renewal Options which
may have been irrevocably exercised by Tenant), the Landlord, at Landlord's sole
option, shall have the right to terminate this Lease which right must be
exercised, if at all, within thirty (30) days after the receipt of Landlord's
architect's opinion.
(d) Notwithstanding any language contained herein to the contrary,
if this Lease is not terminated as provided hereunder, (i) for the improvements
insured under clause (a) of Section 6.4, Landlord shall be obligated to rebuild
or restore the property so damaged only to the extent of the net insurance
proceeds available to Landlord (whether actually disbursed to Landlord or
Landlord's lenders or to an escrow agent designated by the REA) for the purpose
of rebuilding and restoration (plus an amount equal to any applicable
deductible) or, if Landlord has failed to comply with Section 6.4 hereof, then
the net insurance proceeds that would have been available to Landlord had it
complied with Section 6.4 hereof (plus an amount equal to any applicable
deductible); (ii) subject to the provisions of clause (i) above, if the property
so damaged is all or any portion of the Leased Premises, then Landlord shall be
obligated to rebuild or restore the Leased Premises only to the extent of the
Building Standard Improvements to the extent of their condition immediately
prior to the Casualty (the "Landlord Restored Condition"), and nothing shall be
construed to obligate Landlord under any circumstances to repair or restore any
of Tenant's Leasehold Improvements in excess of the Building Standard
Improvements; provided, however, that Tenant shall have the right to require
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Landlord to rebuild or restore the Leased Premises substantially to the
condition which existed immediately prior to such damage provided that Tenant
shall bear all costs and expenses incurred in such restoration or rebuilding to
the extent in excess of the cost to Landlord in rebuilding and restoring the
Leased Premises to the Landlord Restored Condition unless Tenant provided the
Insurance Request and complied with all of its obligations under Section 6.4
with respect thereto, in which event Landlord shall restore the Leased Premises
to the Restored Condition and then only to the extent of the net insurance
proceeds available to Landlord for the purpose of rebuilding or restoration (and
not the deductible or any other costs not covered by such insurance, which shall
be paid by Tenant), or if Landlord failed to comply with Section 6.4 hereof as
to an Insurance Request, then the net proceeds that would have been available to
Landlord had it complied with Section 6.4 as to an Insurance Request; and (iii)
Base Rental, Tenant's Forecast Additional Rental and Tenant's Additional Rental
Adjustment shall be abated as to the portion of the Leased Premises that is
untenantable due to such damage until such portion of the Leased Premises is
restored to the condition required by clauses (i) and (ii) above. If Tenant
requires Landlord to restore the Leased Premises to other than the Landlord
Restored Condition and Landlord notifies Tenant that the same will delay
completion of restoration beyond the date on which restoration could be
completed to the Landlord Restored Condition without Tenant's requirements, then
if requiring the same in fact delays such completion of restoration, the
abatement of rental hereunder applicable to the portion of the Leased Premises
to which such requirements relate shall not apply, and Base Rental, Tenant's
Forecast Additional Rental and Tenant's Additional Rental Adjustment shall
commence to accrue as of the date Landlord would have completed such restoration
to the Landlord Restored Condition without Tenant's requirements. If Tenant does
not require that Landlord restore the Leasehold Improvements in excess of the
Landlord Restored Condition, Tenant agrees to commence repair of its Leasehold
Improvements promptly and with all due diligence. In the event of any
termination of this Lease under this Section 6.3, this Lease shall cease and
terminate as if the date of such damage were the expiration date of the Term.
As used herein, "Restored Condition" shall mean the condition which
existed immediately prior to the damage as to the improvements identified on the
existing record plans and specifications for the Leased Premises which have been
furnished by Tenant to Landlord at least thirty (30) days prior to the date the
applicable policy was obtained pursuant to Section 6.4.
(e) Notwithstanding anything to the contrary contained in this
Section 6.3, a Casualty affecting all or any portion of the Parking Facility
shall, as to the Parking Facility, be governed by the provisions of Section
3.4(c) hereof and this Section 6.3 shall not apply thereto.
6.4 Casualty Insurance. Landlord shall maintain or cause to be
maintained All Risk property insurance on (a) the entire Project (excluding
leasehold improvements and the personal property of tenants) and on the Building
Standard Improvements (defined in Exhibit I) in an amount not less than the full
insurable value (on a replacement cost basis) thereof above the foundation, and
(b) if Tenant furnishes written notice to Landlord thirty (30) days in advance
("Insurance Request") and as to the Leased Premises only, the Leasehold
Improvements to the extent the Restored Condition exceeds the Building Standard
Improvements. With respect to the insurance described in subsection (b) above,
Landlord shall only be obligated to insure those Leasehold Improvements in.
excess of the Building Standard Improvements as such Leasehold Improvements are
identified on then existing record plans and specifications furnished to
Landlord on or prior to the date of the Insurance Request.
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If Tenant shall request that Landlord provide the coverage described
in subsection (b) above, Landlord shall provide such coverage by purchasing, at
Tenant's cost and expense, a separate policy of insurance which Tenant shall
approve in writing as to all matters pertaining to such policy, including,
without limitation, matters regarding the scope of coverage and the amount of
deductibles and Tenant shall reimburse Landlord within ten (10) days after
Landlord's request for the cost of such insurance, which cost shall be solely
Tenant's obligation. Landlord shall renew such insurance coverages requested by
Tenant on the same terms and conditions unless otherwise specified in writing by
Tenant.
Upon the request of Tenant, a copy of a duly executed certificate of
insurance reflecting Landlord's maintenance of the insurance required under this
Section 6.4 and Section 6.5 below shall be delivered to Tenant. Said insurance
shall be maintained at the expense of Landlord (which expense is to be included
in Operating Expenses, except for the insurance in clause (b) which shall be
paid separately by Tenant as provided above) with a reputable and financially
sound insurance company selected by Landlord that is authorized to do business
in Texas. All payments for losses thereunder shall be made solely to Landlord,
the holder of any mortgage or deed of trust, or any escrow agent as required by
the REA. If the annual premiums paid by Landlord for such casualty insurance
exceed the standard premium rates because of the nature of Tenant's operations,
contents or improvements beyond Building Standard Improvements or because the
same result in extra hazardous exposure, then Tenant shall upon receipt of
copies of appropriate premium invoices promptly reimburse Landlord for such
increases in such premiums.
Tenant shall maintain at its expense All Risk property insurance
(including sprinkler leakage and water damage) on the full insurable value (on a
replacement cost basis) of all its personal property, including removable trade
fixtures, located in the Leased Premises and on the Leasehold Improvements (to
the extent only the same are in excess of the Building Standard Improvements)
and all other additions and improvements (including fixtures) made by or on
Tenant's behalf to the extent not required to be insured by Landlord above.
Tenant may elect to self-insure against the risks required under this Section
6.4 only during those periods of time when Tenant's or Guarantor's shareholders'
equity or net worth, as applicable, is equal to or greater than $250,000,000
(determined in accordance with generally accepted accounting principles
consistently applied); provided, however, that Tenant shall notify Landlord in
writing of Tenant's election to self-insure and upon such election and annually
thereafter upon Landlord's request, Tenant will provide Landlord with financial
statements audited by a nationally recognized certified public accounting firm
that Tenant's or Guarantor's shareholders' equity or net worth, as applicable,
is equal to or greater than $250,000,000; and provided further, however, Tenant
shall be deemed to have waived any and all rights of recovery, claim, action,
cause of action and subrogation against Landlord, its agents (including
partners, both general and limited), officers, directors, shareholders,
customers, invitees and employees for property damage so that Landlord and its
agents, officers, directors, shareholders, customers, invitees and employees
will be in the same position as if Tenant had obtained the insurance required
under this Section 6.4. Upon the request of Landlord, a duly executed
certificate of insurance, reflecting Tenant's maintenance of the insurance
required under Sections 6.4 and 6.5 hereof, shall be delivered to Landlord.
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6.5 Liability Insurance. Landlord and Tenant shall each maintain a
policy or policies of commercial general liability insurance with the premiums
thereon fully paid on or before the due dates, issued by and binding upon a
reputable and financially sound insurance company. Such insurance shall afford
minimum protection (which may be effected by primary and/or excess coverage) of
not less than $10,000,000.00 for bodily injury or death in any one accident or
occurrence and against property damage. Tenant may elect not to carry the
insurance required of it under this Section 6.5 if prudent under the
circumstances and only during those periods of time when Tenant's or Guarantor's
shareholders' equity or net worth, as applicable, is equal to or greater than
$250,000,000 (determined in accordance with generally accepted accounting
principles consistently applied); provided, however, that Tenant shall notify
Landlord in writing of Tenant's election to self-insure and upon such election
and annually thereafter upon Landlord's request, Tenant will provide Landlord
with financial statements audited by a nationally recognized certified public
accounting firm that Tenant's or Guarantor's shareholders' equity or net worth,
as applicable, is equal to or greater than $250,000,000.
6.6 Hold Harmless. Except as otherwise expressly provided in this
Lease to the contrary, Landlord shall not be liable to Tenant, Tenant's
affiliates or to their respective agents, servants or employees for any damage
to person or property caused by the negligence or intentional torts of Tenant,
Tenant's affiliates or their respective agents, servants or employees, and
Tenant agrees to indemnify and hold Landlord harmless from all liability and
claims for any such damage. Except as otherwise expressly provided in this Lease
to the contrary, Tenant shall not be liable to Landlord, Landlord's affiliates
or to their respective agents, servants or employees for any damage to person or
property caused by the negligence or intentional torts of Landlord, Landlord's
affiliates or their respective agents, servants or employees, and Landlord
agrees to indemnify and hold Tenant harmless from all claims for such damage.
6.7 Waiver of Recovery and Subrogation. ANYTHING IN THIS LEASE TO
THE CONTRARY NOTWITHSTANDING, LANDLORD AND TENANT EACH HEREBY WAIVES ANY AND ALL
RIGHTS OF RECOVERY, CLAIM, ACTION OR CAUSE OF ACTION, AGAINST THE OTHER, THEIR
RESPECTIVE AFFILIATES, OR THE AGENTS, SERVANTS, PARTNERS, MEMBERS, SHAREHOLDERS,
OFFICERS OR EMPLOYEES THEREOF, FOR ANY LOSS OR DAMAGE THAT MAY OCCUR TO THE
LEASED PREMISES, THE PROJECT, THE ADJACENT GARAGE, OR ANY IMPROVEMENTS THERETO
OR THEREON, OR ANY PROPERTY OF SUCH PARTY THEREIN OR THEREON, BY REASON OF FIRE,
THE ELEMENTS, OR ANY OTHER CAUSE THAT IS, OR IS REQUIRED TO BE, INSURED AGAINST
UNDER THE TERMS OF THE STANDARD ALL RISK PROPERTY INSURANCE POLICIES REFERRED TO
IN SECTION 6.4 HEREOF (EVEN IF TENANT ELECTS TO SELF-INSURE PURSUANT TO SECTION
6.4), REGARDLESS OF THE AMOUNT OF THE PROCEEDS PAYABLE UNDER SUCH INSURANCE
POLICIES AND THE CAUSE OR ORIGIN, INCLUDING NEGLIGENCE OF THE OTHER PARTY
HERETO, THEIR RESPECTIVE AFFILIATES, OR THE AGENTS, OFFICERS, PARTNERS, MEMBERS,
SHAREHOLDERS, SERVANTS OR EMPLOYEES THEREOF, AND COVENANTS THAT NO INSURER SHALL
HOLD ANY RIGHT OF SUBROGATION AGAINST SUCH OTHER PARTY ON ACCOUNT THEREOF.
LANDLORD AND TENANT SHALL ADVISE INSURERS OF THE FOREGOING WAIVER AND SUCH
WAIVER SHALL BE A PART OF EACH POLICY MAINTAINED BY LANDLORD AND TENANT.
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ARTICLE VII
DEFAULTS, REMEDIES, BANKRUPTCY, SUBORDINATION
7.1 Default and Remedies.
(a) The occurrence of any of the following shall constitute an Event
of Default ("Event of Default") under this Lease on the part of Tenant:
(i) Failure to pay any payment of Rent when due (including
without limitation Base Rental, Tenant's Forecast Additional Rental and
Tenant's Additional Rental Adjustment) and such failure to pay continues
for a period of five (5) Business Days after written notice from Landlord
of such failure to pay; provided, however, Landlord shall not be required
to provide such notice more than two (2) times in any calendar year, the
third (3rd) such failure in any calendar year constituting an Event of
Default without Landlord providing such notice;
(ii) Tenant's interest in this Lease or the Leased Premises
shall be subjected to any attachment, execution, levy or other judicial
seizure pursuant to any order or decree entered against Tenant in any
legal proceeding and such order or decree is not vacated or bonded against
so as to prevent seizure upon the earlier to occur of (aa) fifteen (15)
days prior to the sale of such interest pursuant to such order or decree,
or (bb) thirty (30) days after Tenant has notice of the entry of the
order;
(iii) if Tenant or any guarantor of this Lease (including
Guarantor) is a corporation, Tenant or any such guarantor shall cease to
exist as a corporation in good standing in the state of its incorporation,
or if Tenant or any such guarantor is a partnership or other entity,
Tenant or any such guarantor shall be dissolved (unless immediately
reconstituted) or otherwise liquidated and Tenant shall fail to cure such
breach within thirty (30) days after Tenant receives written notice from
Landlord;
(iv) Tenant breaches or fails to comply with any term,
provision, condition, or covenant of this Lease, other than as described
in Section 7.1(a)(i), (ii), (iii) or (v) or with any of the Project Rules
now or hereafter established to govern the operation of the Building or
Project, including without limitation any failure by Tenant to comply with
the provisions of Section 8.1 of this Lease, and such breach or failure
continues for thirty (30) days after written notice from Landlord of such
breach or failure to comply or in the event such breach or failure is
curable but cannot be cured within thirty (30) days, Tenant does not
commence to cure such breach or failure promptly within such thirty (30)
day period and continuously thereafter pursue such cure until such breach
or failure is remedied;
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(v) Tenant shall fail or refuse to move into or take
possession of at least seventy-five percent (75%) of the Leased Premises
within one hundred eighty (180) days after the Commencement Date; or
(vi) if a breach occurs under, or any guarantor of this Lease
(including Guarantor) neglects or fails to perform or observe, any
covenant, term, provision, or condition contained in any such guaranty of
this Lease (including the Guaranty).
Notwithstanding anything to the contrary contained in this Lease, a
default by Tenant under the Building II Lease (defined in Section 11.4 hereof)
shall not be an Event of Default by Tenant hereunder.
(b) Upon the occurrence of an Event of Default, Landlord shall have
the option to do and perform any one or more of the following in addition to,
and not in limitation of, any other remedy or right permitted it by law or in
equity or by this Lease:
(i) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter re-enter the Leased Premises and
correct or repair any condition which shall constitute a failure on
Tenant's part to keep, observe, perform, satisfy, or abide by any term,
condition, covenant, agreement, or obligation of this Lease or of the
Project Rules now in effect or hereafter adopted in accordance with the
terms of this Lease or of any notice given Tenant by Landlord pursuant to
the terms of this Lease, and Tenant shall fully reimburse and compensate
Landlord on demand for the costs incurred by Landlord in doing so, plus a
fee to Landlord for administrative cost recovery in accordance with
Exhibit K; or
(ii) Landlord may terminate this Lease and forthwith repossess
the Leased Premises and remove all persons or property therefrom, and be
entitled to recover as damages a sum of money equal to the total of (A)
the cost of recovering the Leased Premises (including, without limitation,
attorneys' fees and costs of suit), (B) the actual cost of any alterations
of, or repairs to, the Leased Premises which are necessary or proper to
prepare the same for reletting, (C) the unpaid Rent owed at the time of
termination, plus interest thereon from due date at the Applicable Rate,
(D) the present value of the balance of the Rent for the remainder of the
Term less the present value of the fair market rental value (and in
computing the fair market rental value the factors taken into account
shall include without limitation the market rental concessions and the
time necessary to relet the Leased Premises) of the Leased Premises for
the remainder of the Term (in each case using a discount rate equal to the
rate per annum applicable to United States Treasury notes maturing on or
about the expiration of the Term and issued in the year that the Event of
Default occurs, or if no such note exists, the notes issued closest to
such year, plus one hundred fifty basis points), and (E) any other sum of
money and damages owed by Tenant to Landlord; or
(iii) Landlord may terminate Tenant's right of possession (but
not this Lease) and may repossess the Leased Premises by forcible entry or
detainer suit or other lawful means and without terminating this Lease,
and remove all persons or property therefrom, (Tenant hereby waiving any
claim by reason of such reentry, repossession or removal conducted in
accordance with Legal Requirements or this Lease or by issuance of any
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distress warrant or writ of sequestration), in which event Landlord shall
use reasonable efforts to relet the Leased Premises or any part thereof
for the account of Tenant for such rent and upon such terms as shall be
satisfactory to Landlord (however, Landlord shall be under no obligation
to relet the Leased Premises or any portion thereof in preference to any
other space in the Complex or on terms unsatisfactory to Landlord). For
the purpose of such reletting Landlord is authorized to decorate or to
make any repairs, changes, alterations or additions in or to the Leased
Premises, or provide leasing inducements or brokerage commissions that may
be reasonably' required to relet the Leased Premises. If Landlord is
unable to relet the Leased Premises using reasonable efforts to do so or
if the Leased Premises are relet and a sufficient sum shall not be
realized from such reletting (after paying the unpaid amounts due
hereunder that are earned but unpaid at the time of reletting plus
interest thereon at the Applicable Rate, the cost of recovering possession
[including, without limitation, reasonable attorneys' fees and costs of
suit], all of the costs and expenses of such decorations, repairs,
changes, alterations and additions reasonably required to relet the Leased
Premises and all other expenses reasonably required in connection with
such reletting [including, without limitation, leasing inducements and
brokerage commission] and of the collection of the rent accruing
therefrom) to satisfy the Rent provided for in this Lease to be paid, then
Tenant shall pay to Landlord as damages a sum equal to the amount of the
rental reserved in this Lease for such period or periods or, if the Leased
Premises have been relet, Tenant shall satisfy and pay any such deficiency
upon demand therefor from time to time as the same accrues or becomes due.
Tenant agrees that Landlord may file suit to recover any sums falling due
under the terms of this Section 7.1 from time to time on one or more
occasions without Landlord being obligated to wait until expiration of the
Term, and no delivery or recovery of any portion due Landlord hereunder
shall be any defense in any action to recover any amount not theretofore
reduced to judgment in favor of Landlord, nor shall such reletting be
construed as an election on the part of Landlord to terminate this Lease
unless a written notice of such intention be given to Tenant by Landlord.
Notwithstanding any such reletting without termination, Landlord may at
any time thereafter elect to terminate this Lease for such previous
breach; or
(iv) Landlord, with or without terminating this Lease, is
entitled and is hereby authorized, without any notice to Tenant
whatsoever, to enter upon the Leased Premises by use of a master key, a
duplicate key, picking the locks, or other peaceable means, and to change,
alter, and/or modify the door locks on all entry doors of the Leased
Premises, thereby excluding Tenant, and its officers, principals, agents,
employees, visitors and representatives therefrom. If Landlord has either
terminated Tenant's right of possession to the Leased Premises pursuant to
the foregoing provisions of this Lease, or has terminated this Lease by
reason of the Event of Default, Landlord shall not thereafter be obligated
to provide Tenant with a key to the Leased Premises at any time; provided,
however, that in any such instance, during Landlord's normal business
hours and at the convenience of Landlord, and upon the written request of
Tenant accompanied by such written waivers and releases as Landlord may
reasonably require, Landlord will escort Tenant or its authorized
personnel to the Leased Premises to retrieve any personal belongings or
other property of Tenant not subject to Landlord's liens or security
interests described in this Lease or available under applicable laws. If
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Landlord elects to exclude Tenant from the Leased Premises without
permanently repossessing the Leased Premises or terminating this Lease
pursuant to the foregoing provisions of this Lease, then Landlord (at any
time prior to permanent repossession or termination) shall not be
obligated to provide Tenant a key to re-enter the Leased Premises until
such time as all delinquent Rent has been paid in full and all other
Events of Default, if any, have been completely cured to Landlord's
satisfaction, and Landlord has been given assurance reasonably
satisfactory to Landlord evidencing Tenant's ability to satisfy its
remaining obligations under this Lease. During any such temporary period
of exclusion, Landlord will, during Landlord's regular business hours and
at Landlord's convenience, upon written request by Tenant, escort Tenant
or its authorized personnel to the Leased Premises to retrieve personal
belongings of Tenant or its employees, and such other property of Tenant
as is not subject to Landlord's liens and security interests described in
this Lease or available under applicable laws. The provisions hereof shall
override and control any conflicting provisions of Section 93.002 of the
Texas Property Code (as amended).
(c) If Landlord re-enters the Leased Premises or terminates this
Lease pursuant to any of the provisions of this Lease, Tenant hereby waives all
claims for damages that may be caused by such re-entry or termination by
Landlord pursuant to the provisions of this Lease and applicable Legal
Requirements. Tenant shall and does hereby indemnify and hold Landlord harmless
from any loss, cost (including court costs and reasonable attorneys' fees), or
damages suffered by Landlord by reason of such re-entry or termination pursuant
to the terms of this Lease and applicable Legal Requirements. This indemnity
shall survive termination of this Lease. No such re-entry or termination shall
be considered or construed to be a forcible entry.
(d) The exercise by Landlord of any one or more of the rights and
remedies provided in this Lease shall not prevent the subsequent exercise by
Landlord of any one or more of the other rights and remedies herein provided.
Except as otherwise provided in this Lease, remedies provided for in this Lease
are cumulative and may, at the election of Landlord, be exercised alternatively,
successively, or in any other manner and are in addition to any other rights
provided for or allowed by law or in equity.
(e) Except where the provisions of this Lease grant Tenant an
express exclusive remedy, or deny Tenant a remedy, if Landlord should fail to
perform or observe any covenant, term, provision or condition of this Lease and
such default should continue beyond a period of five (5) Business Days as to a
monetary default or thirty (30) days (or such longer period as is reasonably
necessary to remedy such default, provided such default can be cured and
Landlord shall continuously and diligently pursue such remedy until such default
is cured) as to a non-monetary default, after in each instance written notice
(the "First Notice") thereof is given by Tenant to Landlord (and a copy of said
notice is sent simultaneously therewith to the Notice Parties), then, thereafter
in any such event Tenant shall have the right, upon giving an additional notice
(the "Second Notice") to Landlord (and Tenant shall simultaneously send a copy
of the Second Notice to the Notice Parties) and if such default shall continue
uncured by Landlord and the Notice Parties for an additional ten (10) Business
Days after receipt by Landlord and the Notice Parties of the Second Notice, (i)
to cure such default, and Landlord shall reimburse Tenant for all reasonable
costs actually expended by Tenant in so curing said default, plus a fee to
Tenant for administrative cost recovery equal to ten percent (10%) of such costs
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(and if Landlord fails to reimburse Tenant for such costs and fee, Tenant may
offset such costs and fee against Rent pursuant to the provisions of Section
2.1(e)), and (ii) to commence such actions at law or in equity to which Tenant
may be entitled (except an action to declare a termination of this Lease). If
Landlord and all Notice Parties shall fail to cure such default within sixty
(60) days following their receipt of the Second Notice, then Tenant may
terminate this Lease by delivering written notice to Landlord prior to the
curing of such default. Any failure by Tenant to terminate this Lease within the
period provided in the preceding sentence shall constitute an irrevocable waiver
by Tenant of its right to terminate this Lease as a result of the Landlord
default in question. In the event Tenant takes any action to cure a Landlord
default in accordance with this Section 7.1(e), and such work affects the Base
Building, Base Building Systems or the structural integrity of the Building or
the Project, (i) Tenant shall use only those contractors used by Landlord in the
Building for work on such systems unless such contractors are unwilling or
unable to perform such work after reasonable requests by Tenant, in which event
Tenant may utilize the services of any other qualified contractor approved by
Landlord (which approval shall not be unreasonably withheld) of similar skill,
competence and experience which normally and regularly performs similar work on
Comparable Buildings, and (ii) all such work shall be performed in accordance
with the provisions of Exhibit D-2.
The rights of Tenant pursuant to this Section 7.1(e) shall be
subject to the express provisions of this Lease providing for remedies different
from, or in exclusion of the remedies above-described or that deny any remedy
whatsoever. Without limiting the immediately preceding sentence, the provisions
of this Section 7.1(e) shall not apply to the failure of Landlord to provide the
Building Standard Services or any other services described in Section 3.1 of
this Lease. Except where the express terms of this Lease allow, Tenant may not
terminate this Lease because of Landlord's default. Tenant specifically agrees
that the cure of any default by any of the Notice Parties shall be deemed a cure
by Landlord under this Lease.
Notwithstanding anything to the contrary contained in this Lease, a
default by the landlord under the Building II Lease (defined in Section 11.4
hereof) shall not be a default by Landlord hereunder.
7.2 Insolvency or Bankruptcy. The appointment of a receiver to take
possession of all or substantially all of the assets of Tenant or any guarantor
(including Guarantor) of any of Tenant's obligations under this Lease, or any
general assignment by Tenant or any such guarantor for the benefit of creditors,
or any action taken or suffered by Tenant or any such guarantor under any
insolvency, bankruptcy, or reorganization act, other than an involuntary
proceeding that is dismissed or bonded against within one hundred twenty (120)
days after the filing thereof, shall at Landlord's option, constitute an Event
of Default under this Lease by Tenant. Upon the happening of any such event or
at any time during the pendency of such event, this Lease shall terminate five
(5) days after notice of termination from Landlord to Tenant. In no event shall
this Lease be assigned or assignable by voluntary or involuntary bankruptcy or a
proceeding in lieu thereof and in no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant or any such guarantor under any
bankruptcy, insolvency, or reorganization proceedings.
7.3 Negation of Lien for Rent. Landlord hereby expressly waives and
negates any and all contractual liens and security interests, statutory liens
and security interests or constitutional liens and security interests arising by
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operation of law to which Landlord might now or hereafter be entitled on all
property of Tenant now or hereafter placed in or upon the Leased Premises
(except for judgment liens that may hereafter arise in favor of Landlord). The
waiver and negation contained herein shall not waive, negate or otherwise affect
any unsecured claim Landlord may have. Tenant hereby expressly waives and
negates any lien claim (except for judgment liens that may hereafter arise in
favor of Tenant) to which it may be entitled against Landlord by law or arising
under this Lease.
7.4 Attorney's Fees. If Tenant or Landlord defaults in the
performance of any of the terms, covenants, agreements or conditions contained
in this Lease and the non-defaulting party places the enforcement of this Lease,
or any part thereof, or the collection of any sums due, or to become due
hereunder, or recovery of the possession of the Leased Premises, in the hands of
an attorney, or files suit upon the same, the defaulting party agrees, to the
extent permitted by applicable law, to pay the non-defaulting party all
reasonable attorneys' fees incurred by the non-defaulting party if such suit is
successful. in addition, if Tenant requests any consent of Landlord to any
assignment or sublease, or otherwise requests any consent or other action on the
part of Landlord, and Landlord deems it necessary for any documents to be
prepared or reviewed by its counsel, Tenant shall pay all reasonable attorneys'
fees and expenses incurred by Landlord in connection therewith.
7.5 Waiver of Homestead. Tenant hereby waives and renounces all
homestead or exemption rights that Tenant may have under or by virtue of the
Constitutions and Laws of the United States, the State of Texas, and any other
State as against any debt or sum Tenant may owe Landlord under this Lease and
hereby transfers, conveys, and assigns to Landlord all homestead or exemption
rights that may be allowed or set apart to Tenant, including such as may be set
apart in any bankruptcy proceeding, to pay any debt or sum owing by Tenant to
Landlord hereunder.
7.6 No Waiver of Rights. No failure or delay of Landlord or Tenant
in any one instance to exercise any remedy or power given it herein or to insist
upon strict compliance by Tenant or Landlord of any obligation imposed on it
herein in any other instance and no custom or practice of either party hereto at
variance with any term hereof shall constitute a waiver or a modification of the
terms hereof by such party in any one instance or any right it has herein to
demand strict compliance with the terms hereof by the other party in any other
instance. No express waiver shall affect any condition, covenant, rule, or
regulation other than the one specified in such waiver and then only for the
time and in the manner specified in such waiver. No person has or shall have any
authority to waive any provision of this Lease unless such waiver is expressly
made in writing and signed by an authorized officer of Landlord or Tenant.
7.7 Holding Over.
(a) Except as provided in Section 7.7(b) below, in the event of
holding over by Tenant after expiration or termination of this Lease without the
written consent of Landlord, Tenant shall be deemed a tenant at will and shall
pay for the entire hold over period as rent, solely for such holding over, the
sum of (i) one hundred seventy-five percent (175%) of the Base Rental payable by
Tenant immediately prior to such termination or expiration, plus (ii) one
hundred seventy-five percent (175%) of the Tenant's Additional Rental payable by
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Tenant during Lease Year 1, plus (iii) one hundred percent (100%) of the
difference between (x) Tenant's Additional Rental payable by Tenant during Lease
Year 1, and (y) that Tenant's Additional Rental payable by Tenant under Section
2.3 for the holdover period as if the Lease had not been terminated or expired,
plus (iv) one hundred percent (100%) of all Rent other than Base Rental and
Tenant's Additional Rental that would have been payable if this Lease had not so
terminated or expired. No holding over by Tenant after the Term shall be
construed to extend the term of this Lease. In the event of any unauthorized
holding over, Tenant shall indemnify Landlord against (i) all claims for damages
by any other tenant to whom Landlord shall have leased all or any part of the
Leased Premises effective upon the termination of this Lease, and (ii) all other
losses, costs and expenses, including attorneys' fees, incurred by Landlord by
reason of such holding over. Any holding over with the express written consent
of Landlord shall thereafter constitute this Lease to be a lease from month to
month (unless such written consent specifies otherwise) at a Base Rental,
Tenant's Forecast Additional Rental, Tenant's Additional Rental Adjustment, and
all other sums required to be paid by Tenant prior to the expiration or
termination of this Lease as may be determined by Landlord.
(b) Notwithstanding the provisions of Section 7.7(a) above, Tenant
shall be permitted to hold over for either (i) one (1) six (6) month period, or
(ii) one (1) twelve (12) month period, after the expiration of the Initial Term
of this Lease provided Tenant furnishes Landlord with written notice (a
"Holdover Notice") at least fifteen (15) months prior to the expiration of the
then expiring Term from which Tenant elects to hold over (the "Permitted
Holdover"), which Holdover Notice must contain Tenant's election of option (i)
or (ii) (and if Tenant fails to specify (i) or (ii) in a timely delivered
Holdover Notice, Tenant shall be deemed to have elected option (i)). If Tenant
elects to hold over pursuant to the preceding sentence, the Permitted Holdover
will be on an "as-is" basis for all of the then existing Leased Premises,
without any modifications to this Lease (including without limitation Tenant's
obligations to pay Tenant's Forecast Additional Rental and Tenant's Additional
Rental Adjustment and other additional rent obligations pursuant to this Lease),
except that the Base Rental during the Permitted Holdover shall be (x) for the
first (1st) six (6) months of the Permitted Holdover, one hundred twenty-five
percent (125%) of the Base Rental payable by Tenant immediately prior to the
Permitted Holdover, and (y) the last six (6) months of the Permitted Holdover
(if applicable), the greater of (A) one hundred fifty percent (150%) of the Base
Rental payable by Tenant immediately prior to the Permitted Holdover, and (B)
the Market Base Rental Rate for such six (6) month period as of the commencement
of such period. If Tenant timely furnishes the Holdover Notice and elects a
Permitted Holdover of twelve (12) months, Landlord shall furnish notice of the
Market Base Rental Rate and the resulting Base Rental Rate to Tenant within
thirty (30) days after Landlord receives the Holdover Notice. If as the result
of the formula in clause (y) the Base Rental Rate is the Market Base Rental Rate
and Tenant disagrees with the Market Base Rental Rate component of the
determination of the Base Rental Rate, Tenant may submit the dispute to binding
arbitration pursuant to Article X by furnishing written notice to Landlord
within ten (10) days after receipt of notice of such rate from Landlord
("Dispute Period"), and Tenant is not permitted to revoke its exercise of the
Permitted Holdover prior to or after the arbitrators determine the Market Base
Rental Rate. If the Market Base Rental Rate has not been determined prior to the
commencement of the last six (6) months of the Permitted Holdover, the Base
Rental shall be based on the Base Rental Rate contained in Landlord's notice to
Tenant until the arbitration is completed. Upon the expiration of the Permitted
Holdover, this Lease shall terminate and Tenant shall have no further right to
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holdover in the Leased Premises. Notwithstanding anything to the contrary
contained in this Lease, if Tenant exercises its right to hold over in the
Leased Premises pursuant to this subsection (b), Tenant shall be deemed to have
waived its rights to exercise any Renewal Options pursuant to Section 9.1 and if
Tenant has irrevocably exercised a Renewal Option pursuant to Section 9.1, the
rights under this Section 7.7(b) shall be deemed waived by Tenant.
7.8 Subordination. Provided that Tenant and the lessor under any
ground or land lease now or hereafter covering all or any part of the Project
and/or the Project Land and the holder of any mortgage or deed of trust that may
now or hereafter encumber the Project and/or the Project Land enter into a
non-disturbance agreement (a "Non-Disturbance Agreement") reasonably
satisfactory to Tenant and the lessor under any such ground or land lease or the
holder of any such mortgage or deed of trust [which Non-Disturbance Agreement
shall specifically include the provisions set forth hereinbelow and (when
entered into) shall supersede the provisions of this Section 7.8], this Lease
and all rights of Tenant under this Lease shall be subject and subordinate to
each such ground or land lease and to each such mortgage or deed of trust, as
well as to all renewals, modifications, consolidations, replacements and
extensions thereof. Tenant agrees that, upon request of Landlord, Tenant will
enter into the Non-Disturbance Agreement as soon as possible but in no event
later than thirty (30) days after Tenant's receipt of Landlord request. Landlord
and Tenant agree that the Non-Disturbance Agreement shall include the following
provisions: (a) Tenant shall expressly recognize and agree that the lessor under
any such ground or land lease and the holder of any such mortgage or deed of
trust or any of their successors or assigns or any other holder of such
instrument may sell the Project or the Project Land in the manner provided for
by law or in such instrument, and such sale shall be made subject to this Lease,
(b) in the event of the enforcement by the lessor under any such ground or land
lease or the holder, grantee, or trustee under any such mortgage or deed of
trust of the remedies provided for by law or by such land or ground lease,
mortgage or deed of trust, Tenant will, as a result of such enforcement,
automatically become the tenant of such lessor, grantee or their respective
successor(s) in interest as Landlord under the Lease as the result of such
enforcement (collectively, the "Successor") without change in the terms or
provisions of this Lease and such Successor shall succeed to Landlord's interest
in the Project Land or the Project subject to the terms of this Lease; provided,
however, that such Successor shall not (i) be bound by any payment of Rent for
more than one month in advance except prepayments in the nature of security for
the performance by Tenant of its obligations under this Lease, (ii) be subject
to any offsets or counterclaims which have accrued to Tenant against Landlord
prior to the date of the transfer of title to the Project or the Project Land to
such Successor except (A) such Successor shall be bound by the offset provisions
contained in Section 2.1(e) hereof with respect to a breach by the Successor, as
the new landlord under this Lease, of its obligations under applicable sections
referred to in Section 2.1(e) so long as such breach occurred by such Successor
after the date of transfer of title to the Project to such Successor, (B) such
Successor shall be liable for any breach by Landlord of its obligations to pay
the Improvements Allowance pursuant to Section 2.5 or Delay Payments pursuant to
Section 1.2(d)(ii), even if the offset relates to a period of time prior to the
date of transfer of title to the Project, but only to the extent that prior to
acquiring title to the Project the Successor received all notices that Tenant
was required to send to such Successor under Sections 1.2(d), 2.1(e), 2.5,
7.1(e) and 10.1 in connection with the sums in question as required by Section
11.1 that accrued prior to the date of transfer of title to the Project, and (C)
to the extent (and for the time period) that such Successor continues any breach
by the prior Landlord that gives rise to the offset or counterclaim after the
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date of the transfer of title to the Project to such Successor, (iii) be bound
by any amendment or modification of this Lease made without the written consent
of Successor from and after the date on which Successor notified Tenant in
writing of its interest, or (iv) be required to make any capital improvements to
the Project or to the Leased Premises which Landlord may have agreed to make but
had not completed, except to the extent called for or required by the terms of
this Lease; and provided further that Tenant's agreement automatically to
subordinate and/or become the tenant of Successor is conditioned upon the
execution of the Non-Disturbance Agreement, (c) upon request by Successor,
Tenant shall execute and deliver an instrument or instruments confirming the
attornment herein provided for in a form reasonably acceptable to Tenant and
Successor, and (d) so long as an Event of Default is not in existence and this
Lease or Tenant's right of possession has not been terminated as a result of
such Event of Default, that Tenant's use, possession, tenancy, rights, and
occupancy hereunder shall remain undisturbed and shall survive any action taken
pursuant to the instrument to which this Lease is subordinated. Unless and until
a Non-Disturbance Agreement is entered into between Tenant and the applicable
party, the holder of any ground or land lease that may now affect any of the
Project Land or the holder of any mortgage or deed of trust that may now
encumber the Project may elect at any time to cause their interests in the
Project Land or the Project to be subordinate and junior to Tenant's interest
under this Lease by filing an instrument in the real property records of Dallas
County, Texas, effecting such election and providing Tenant with notice of such
election. The Ground Lease entered into by and between HCP Land, L.P., as ground
lessor, and Landlord, as ground lessee, of even date herewith is expressly
subordinate to the terms of this Lease.
7.9 Estoppel Certificate or Three-Party Agreement. Within ten (10)
Business Days after the request of either Landlord or Tenant, the other party
will execute, from time to time, either an estoppel certificate or a three-party
agreement among Landlord, Tenant and any third party certifying, to the best of
such party's knowledge and belief, to such facts (if true) as Landlord or
Tenant, as the case may be, or such third party, may reasonably require in
connection with the business dealings of the parties.
7.10 Vacating the Leased Premises. If more than eight (8) full
floors of the Leased Premises are not occupied by Tenant or its permitted
assignee or sublessee for the purpose of conducting its business (but not
storage) therefrom after the Commencement Date for longer than one hundred
eighty (180) consecutive days, even though Tenant continues to pay the
stipulated Rent and is not otherwise in default under this Lease, and Tenant or
its permitted assignee or subtenant fails to re-occupy the same within sixty
(60) days after notice from Landlord (which notice may only be furnished by
Landlord after the expiration of the aforementioned 180-day period), then from
and after the expiration of said sixty (60) day notice period Landlord may
terminate this Lease as to (and only as to) any or all full floors of the Leased
Premises that are not so occupied, without declaring Tenant in default under
this Lease, by delivering written notice to Tenant. Space which is vacated on
account of bona fide remodeling shall not be deemed unoccupied for purposes of
this Section 7.10. In no event shall anything contained herein be deemed a
waiver by Landlord of its rights under Section 7.1 of this Lease upon the
occurrence of an Event of Default. Additionally, any space which is sublet
pursuant to the provisions of Section 8.1 hereof to other than a Permitted
Affiliate which is vacant shall not be considered vacated or unoccupied for the
purposes of this Section 7.10.
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ARTICLE VIII
SUBLEASING, ASSIGNMENT, LIABILITY, AND PUBLICITY
8.1 Sublease or Assignment by Tenant.
(a) Except as provided in Section 8.1(b), Tenant shall not, without
Landlord's prior written consent (which may be withheld in Landlord's absolute
discretion), (i) assign, convey, mortgage, pledge, encumber, or otherwise
transfer (whether voluntarily, by operation of law, or otherwise) this Lease or
any interest hereunder; (ii) allow any lien to be placed upon Tenant's interest
hereunder; (iii) sublet the Leased Premises or any part thereof; or (iv) permit
the use or occupancy of the Leased Premises or any part thereof by anyone other
than Tenant. Any attempt to consummate any of the foregoing without Landlord's
consent shall be of no force or effect and shall be an Event of Default under
this Lease. For purposes hereof, (A) the transfer of the ownership or voting
rights in a controlling interest of the voting stock of Tenant (if Tenant is a
corporation), (B) the transfer of a general partnership interest or the transfer
of twenty-five percent (25%) of the limited partnership interests in Tenant (if
Tenant is a partnership), (C) the merger or consolidation of Tenant with or into
any other corporation or entity, or (D) a sale or transfer of fifty percent
(50%) or more of Tenant's assets, at any time throughout the Term shall be
deemed to be an assignment of this Lease; provided, however, the trading of
common stock of Tenant on any public stock exchange will not (i) require
Landlord's consent, or (ii) give Landlord the right to declare a default under
this Lease (provided, however, if any such trading or transfer results in an
assignment of this Lease contemplated in the immediately following paragraph of
this subsection (a), Tenant must comply with the provisions of this Section 8.1
below applicable to such assignment).
Notwithstanding the provisions of the first subparagraph of this
subsection (a), the consent of Landlord need not be obtained for (i) any
assignment or subletting to an Affiliate(s) of Tenant, (ii) any assignment of
this Lease made in connection with the merger or consolidation of Tenant with or
into any other corporation or entity, and (iii) an assignment of this Lease made
in connection with a sale or transfer of a majority of the assets and
liabilities of Tenant, so long as with respect to clauses (i), (ii) and (iii),
(1) the assignee or sublessee is engaged in a business customarily acceptable
for a tenant in Comparable Buildings, (2) any assignee shall assume all of the
obligations of Tenant under this Lease, (3) at the time of such assignment or
subletting, this Lease is in full force and effect and there is no Event of
Default under this Lease on the part of Tenant, (4) the assignee's or
sublessee's proposed use of the Leased Premises is not in violation of this
Lease, and (5) with respect to clause (ii) and (iii) only, at the time of such
assignment, the assignee's shareholders' equity or net worth, as applicable, is
equal to or greater than $250,000,000 (determined in accordance with generally
accepted accounting principles and as evidenced by financial statements audited
by a nationally recognized certified public accounting firm) (such assignee or
sublessee of Tenant in clauses (i), (ii) or (iii) complying with clauses (1),
(2), (3), (4) and (5), hereinafter a "Permitted Affiliate"). At least seven (7)
days prior to the effective date of any such assignment or sublease to a
Permitted Affiliate, Tenant agrees to furnish Landlord with notice of such
assignment or sublease and copies of the instruments effecting any such
assignment or sublease and the aforementioned financial statements (as to
clauses (ii) and (iii) only). Additionally, within thirty (30) days after the
effective date of any such assignment or sublease to a Permitted Affiliate,
Tenant agrees to furnish Landlord with copies of the fully executed instruments
effecting any such assignment or sublease and documentation establishing
Tenant's satisfaction of the requirements set forth above applicable to any such
sublease or assignment. Any such assignee of Tenant must assume and agree in
writing to fully perform and observe all of the obligations and agreements of
Tenant under this Lease and any such sublessee shall sublease such portion of
the Leased Premises subject to the provisions of this Lease. N such assignment
or subletting shall relieve Tenant, any other Tenant, or any guarantor of this
Lease (including Guarantor [defined below]) of any of the covenants or
obligations under this Lease or any such guaranty (including the Guaranty
[defined below]), and Tenant, any other tenant, any guarantors of this Lease
(including the Guarantor) shall remain fully liable hereunder and thereunder.
Landlord and Tenant agree that for all purposes of this paragraph, all
references to "Tenant" in this paragraph shall mean only "Company." As a result
thereof, and notwithstanding anything to the contrary set forth in this Lease,
the rights granted to Tenant under clauses (i), (ii) and (iii) shall inure only
to the benefit of the Company, shall not be assignable by Company and shall not
be enforceable by any assignee or sublessee of Company except that the rights
granted to Company under clauses (i), (ii) and (iii) shall be assignable to any
Permitted Affiliate(s) of Company to whom the entire interest of Tenant under
this Lease is assigned is accordance with the provisions of Section 8.1(a)
hereof. Landlord agrees that the foregoing provisions do not prevent Company
from assigning the Lease to a Permitted Affiliate and then such Permitted
Affiliate assigning this Lease to another Permitted Affiliate so long as such
subsequent assignment satisfies the requirements set forth in subparagraphs (1)
through (5) above and the other requirements of this paragraph and Tenant
otherwise complies with the requirements contained in this paragraph.
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(b) Notwithstanding the provisions of Section 8.1(a) above, Tenant
shall be permitted to sublease the Leased Premises or assign its interest in
this Lease after Tenant initially occupies the Leased Premises subject to the
provisions of this Section 8.1(b); provided, however, (1) Tenant shall be
permitted to sublease (subject to the provision of this Section 8.1) any of the
Designated Floors prior to Tenant's taking occupancy of such floors provided the
term of such sublease does not commence prior to the Rental Commencement Date
for such Designated Floor, and (2) Tenant shall be permitted to sublease up to
three (3) full floors of the Initial Leased Premises (including any floors
subleased under clause (1); therefore, Tenant is only permitted to sublease a
maximum of three (3) floors under clauses (1) and (2) prior to initial occupancy
by Tenant) prior to initial occupancy thereof (on a full floor basis); however,
in such event Tenant hereby waives its right to exercise its remedies under
Section 1.2(d)(i), (ii) and (iii) with respect to any floor on which space is
subleased. If Tenant should desire to assign this Lease or sublet the Leased
Premises or any part thereof during the Term, Tenant shall give Landlord written
notice of such intention ("Assignment/Sublease Intent Notice"), which
Assignment/Sublease Intent Notice shall specify the portion of the Leased
Premises to be affected by any subletting, the term of the proposed subletting,
and the proposed commencement date of such term ("Sublease Information"), which
Sublease Information may be provided in ranges (e.g., between 8,000 and 9,000
square feet of Net Rentable Area in the location described on the attached floor
plan); however, the maximum square footage or term in such proposed range or the
earliest commencement date shall be utilized for determining whether Landlord
has a Landlord Termination Right (defined below) with respect thereto and the
space affected thereby. Landlord shall have the right to terminate this Lease
(i) in its entirety (if Tenant notifies Landlord of its intent to assign this
Lease), or (ii) if Tenant notifies Landlord of its intent to sublease as to the
space designated by Landlord in the notice of exercise of the Landlord
Termination Right (which space may be all or a portion, on a full floor basis to
the extent the proposed space is on a full floor, of the maximum space
designated by Tenant in the Assignment/Sublease Intent Notice) for the remainder
of the Term (and not just the proposed term), by written notice to Tenant given
within thirty (30) days of the receipt by Landlord of the Assignment/Sublease
Intent Notice (collectively, the "Landlord Termination Right"); provided,
however, Landlord shall not be permitted to exercise the Landlord Termination
Right as to any sublease or subleases proposed by Tenant with a term which
commences in a particular calendar year, which, when aggregated with the space
affected by other subleases with terms which commenced in such calendar year,
affect in the aggregate less than the Sublease Threshold (defined below). The
rights to avoid the Landlord Termination Right are not cumulative so if
subleases do not commence in a particular calendar year as to the full Sublease
Threshold, the remaining Sublease Threshold shall not be added to the square
footage of subleases not subject to the Landlord Termination Right in the next
calendar year. For example, if Tenant enters into subleases which commence in a
particular calendar year which aggregate sixty percent (60%) of the Sublease
Threshold, the remaining forty percent (40%) shall not be added to the Sublease
Threshold in the next calendar year. Additionally, notwithstanding the
foregoing, if a proposed sublease is for a period shorter than the then
remaining Term by more than one (1) year and does not contain an extension
right, then Landlord shall not be permitted to exercise the Landlord Termination
Right with respect to such proposed sublease.
If (x) Tenant proposes a sublease in an Assignment/Sublease Intent
Notice with a term to commence in a particular calendar year (or in a range with
the earliest date to commence in a particular calendar year) or as to a maximum
square footage, (y) Landlord is not permitted to exercise the Landlord
Termination Right due to (1) the timing of such proposed term commencement and
such sublease actually commences in a calendar year other than that proposed,
(2) the proposed term was less than the remaining term by more than one (1) year
and such sublease term is actually longer, or (3) the Sublease Threshold is not
met because of the amount of the proposed sublease space, and (z) Landlord could
have exercised the Landlord Termination Right if the proposal contained the
correct calendar year of commencement, the length of the term, or correct square
footage, then notwithstanding anything to the contrary contained in this Section
8.1, such sublease so entered into by Tenant in violation of this Lease shall be
void (or to the extent not voidable pursuant to applicable law, Tenant shall be
required to immediately terminate such sublease), Tenant shall be in breach of
this Lease unless and until such sublease is voided or otherwise terminated, and
notwithstanding anything to the contrary contained herein, the Landlord
Termination Right shall apply to all subleases proposed by Tenant within
eighteen (18) months following such breach. For example, if (A) subleases
commence in calendar year 2001 as to eighty percent (80%) of the Sublease
Threshold, (B) Tenant proposes a sublease for twenty-five percent (25%) of the
Sublease Threshold for the calendar year 2002, so that the Landlord Termination
Right does not apply, and (C) the proposed sublease actually commences in
calendar year 2001, such sublease shall be void (or otherwise terminated by
Tenant), Tenant shall be in breach of this Lease until such sublease is voided
or otherwise terminated, and the Landlord Termination Right shall thereafter
apply to all subleases entered into within eighteen (18) months following such
breach.
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In the event the Commencement Date occurs in the calendar year 1999,
then, only for the purposes of determining whether the Sublease Threshold has
been met, the first (1st) calendar year of the Term shall be deemed to include
calendar year 1999 and 2000. Any subleases entered into by Tenant for any one
(1) or more of the Special Uses prior to one (1) year after the Commencement
Date shall not be charged against the forgoing limitations applicable in the
first (1st) calendar year during the Term.
As used herein, the "Sublease Threshold" shall mean the greater of
(x) 70,700 square feet of Net Rentable Area in the Leased Premises, or (y) three
(3) full floors of the Leased Premises.
In the event that Landlord exercises the Landlord Termination Right,
this Lease shall terminate as if by expiration on the date which is (A) the
earlier to occur of (i) the date designated by Landlord in the notice of
Landlord's exercise of the Landlord Termination Notice, or (ii) the date which
is the midpoint of the range of the proposed commencement dates reflected by
Tenant in the applicable Assignment/Sublease Intent Notice, and (B) as to the
entirety of the Leased Premises (if Tenant intends to assign) or as to the space
designated by Landlord in the notice of exercise of the Landlord Termination
Notice (if Tenant intends to sublet), which space may be all or any portion, on
a full floor basis to the extent the proposed space is on a full floor, of the
maximum space designated by Tenant in the Assignment/Sublease Intent Notice. In
the event that Tenant gives to Landlord an Assignment/Sublease Intent Notice in
accordance with this Section 8.1(b) but Landlord does not exercise the Landlord
Termination Right (to the extent Landlord has the right to exercise a Landlord
Termination Right pursuant to the terms hereof) within thirty (30) days
following the receipt by Landlord of such Assignment/Sublease Intent Notice,
this Lease shall continue in full force and effect and Tenant may, during the
period of one hundred eighty (180) days following the receipt of such
Assignment/Sublease Intent Notice by Landlord (the "Affected Period"), enter
into an assignment or sublease of the Leased Premises or such part thereof as
was described in the Assignment/Sublease Intent Notice from Tenant, subject to
the other provisions of this Section 8.1(b) (including without limitation, the
requirements in the immediately following paragraph). In the event that Tenant
does not enter into an assignment or sublease of the Leased Premises (or such
part thereof as was described in the Assignment/Sublease Intent Notice from
Tenant) during the Affected Period or such proposed sublease is on terms not
within the ranges described in the Assignment/Sublease Intent Notice from
Tenant, Tenant shall have the right to again comply with the procedures and
requirements set forth in this Section 8.1(b) in order to obtain another
Affected Period, but Landlord shall have all of the rights accorded to it by the
provisions of this Section 8.1(b) in connection with such procedures and
requirements; provided, however, if Tenant is in active negotiations with a
particular sublessee or assignee at the expiration of the Affected Period on the
terms described in the Assignment/Sublease Intent Notice from Tenant and
furnishes evidence thereof reasonably satisfactory to Landlord, the Affected
Period shall be extended as to such particular subtenant only until the
cessation of negotiations with such particular tenant or assignee.
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If Landlord does not exercise the Landlord Termination Right, and
Tenant desires to enter into an assignment of this Lease or a sublease of the
Leased Premises or any part thereof to a particular assignee or subtenant as
contemplated by the Assignment/Sublease Intent Notice within the Affected
Period, Tenant shall give Landlord written notice of such proposed transaction
("Second Assignment/Sublease Notice"), which Second Assignment/Sublease Notice
shall be accompanied by information concerning the business, reputation and
creditworthiness of the proposed sublessee or assignee and the actual Sublease
Information as to the proposed sublessee (not assignee). Tenant shall provide
Landlord with any additional information or documents reasonably requested by
Landlord (which requests must be made within fifteen (15) days after receiving
the Second Assignment/Sublease Notice). Landlord shall then have a period of ten
(10) days following receipt of such additional information (or twenty-five (25)
days from the date of the Second Assignment/Sublease Notice if Landlord does not
request additional information) (the "Approval Period") within which to notify
Tenant in writing whether Landlord approves of the proposed assignee or
sublessee, which approval shall not be unreasonably withheld if (1) any such
sublessee or assignee is creditworthy as reasonably determined by Landlord and
is of a character, kind and type customarily found in Comparable Buildings, (2)
such sublease or assignment does not violate any lease agreement with any other
tenant or potential tenant with which Landlord has entered into a lease or a
letter of intent (as applicable) in the Complex, and (3) the use of the Leased
Premises by such proposed assignee or sublessee is permitted under this Lease;
provided, however, Landlord shall not have the right to approve the economic
terms of any sublease (except to the extent the terms of any such sublease
conflict with or otherwise violate the terms of this Lease). Without limiting
the foregoing, in no event shall the following be considered as suitable
assignees or sublessees under this subsection (b): any governmental body, agency
or bureau (of the United States, any state, county, municipality or any
subdivision thereof); any foreign government or subdivision thereof; any health
care professional or health care service organization which intends to provide
health care or health care services from the Leased Premises directly to
patients or other members of the general public; schools or similar
organizations; employment agencies; radio, television or other communication
stations; and, except to the extent permitted by Section 1.5 hereof, restaurants
and retailers offering retail services from the Leased Premises. If Landlord
fails to approve a proposed subtenant or assignee within the Approval Period,
the proposed sublessee or assignee shall be deemed approved. If the proposed
sublessee or assignee is approved or deemed approved by Landlord during the
Approval Period, the following shall apply to the sublease or assignment (and
shall be conditions thereto):
(1) Each assignee shall fully observe all covenants of
this Lease, including without limitation, the provisions of Section
1.4 of this Lease. Each sublessee shall not violate or cause Tenant
to be in violation of the covenants of this Lease (including without
limitation, the provisions of Section 1.4 of this Lease). No consent
by Landlord to an assignment or sublease shall be deemed in any
manner to be a consent to (A) a use not permitted under Section 1.4,
or (B) an assignment by Tenant of any rights which are otherwise not
assignable pursuant to other provisions of this Lease;
(2) At the time of any such assignment or subletting,
this Lease is in full force and effect and there is no uncured Event
of Default in existence under this Lease on the part of Tenant;
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(3) Any such assignment or subletting shall be subject
to all the terms, covenants and conditions of this Lease and any
assignee must assume in writing all the rights and obligations of
the assignor hereunder;
(4) If the aggregate rental, bonus or other
consideration paid by the assignee or sublessee of any such space
exceeds the sum of (A) the Base Rental and Tenant's Additional
Rental paid to Landlord for such space during the applicable period,
plus (B) the reasonable out-of-pocket third party costs and expenses
actually incurred by Tenant under or in connection with such
sublease or assignment for (x) broker's commissions paid by Tenant
with regard to the transfer, (y) reasonable legal fees with regard
to the transfer, and (z) expenses of finishing out or renovation of
the space involved [but specifically excluding any charges payable
to partners, shareholders or employees of Tenant in connection with
such sublease or assignment]), then fifty percent (50%) of such
excess shall be paid to Landlord within fifteen (15) days after each
date Tenant actually receives such sums; however Tenant shall be
entitled to receive all costs listed in clause (B) above prior to
Landlord being entitled to any profit from a sublease or an
assignment. With any payment made by Tenant to Landlord under this
clause (4), Tenant shall furnish Landlord with an accounting
prepared and certified to by Tenant of its determination of the sums
owed to Landlord hereunder and Landlord shall have the right to
audit Tenant's books and records pertaining to such amounts to
confirm the accuracy thereof by furnishing written notice to Tenant.
Such audit (i) must commence within thirty (30) days after Tenant's
receipt of such notice from Landlord and must be concluded within
ninety (90) days after commencement thereof, (ii) shall be conducted
at Tenant's offices, or at Landlord's election, at the Complex
property management office, (iii) may not unreasonably interfere
with the conduct of Tenant's business, and (iv) must be conducted in
accordance with generally accepted accounting principles.
Additionally, if Landlord desires to make any requests of third
parties, such requests must be directed solely to Tenant and Tenant
shall make such requests on Landlord's behalf. Landlord, on behalf
of itself, its auditors, agents and employees, agrees to keep the
nature and content of all documents reviewed in connection with such
audit confidential and shall return all documents to Tenant
(however, Landlord shall be permitted to retain any copies made by
Landlord subject to Landlord's obligation to maintain
confidentiality). Landlord and its auditors and agents will be
required to execute a confidentiality statement in the form attached
hereto as Exhibit O prior to the commencement of such audit and
prior to Tenant making any books, records or other documents
available to Landlord, its auditors or agents. Tenant agrees to
cooperate in good faith with Landlord in the conduct of any such
audit, and Landlord agrees to provide Tenant with a certified copy
of the results of such audit within thirty (30) days after the
completion thereof.
If Landlord's audit proves that Tenant's calculation of
sums owed to Landlord under this paragraph was understated by more
than four percent (4%), then Tenant shall pay, within thirty (30)
days of receipt of such certified audit, Landlord's reasonable and
actual out-of-pocket fees and expenses applicable to such audit,
which fees and expenses must be determined on an hours-spent, rather
than a contingent-fee, basis.
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(5) No assignment or subletting by Tenant shall relieve
Tenant or any guarantor of this Lease (including the Guarantor) of
any obligations or covenants under this Lease or any such guaranty
(including the Guaranty) and Tenant and any such guarantor of this
Lease shall remain fully liable hereunder or thereunder (as
applicable); and
(6) A copy of the original sublease or assignment (and
all amendments thereto) shall be delivered to Landlord within
fifteen (15) days from the effective date thereof.
If the proposed sublessee or assignee is approved by Landlord and
Tenant fails to enter into the sublease or assignment with the approved
sublessee or assignee within the Affected Period, then Landlord's approval of
the proposed sublease or assignment shall be deemed null and void and Tenant
must comply again with all of the conditions of this Section 8.1.
(b) If, in accordance with this Section 8.1, the Leased Premises or
any part thereof is sublet or occupied by other than Tenant or this Lease is
assigned, Landlord, during the continuance of an Event of Default under this
Lease on the part of Tenant, if any, may collect rent from the subtenant,
assignee or occupant, and shall apply the net amount collected to Rent due by
Tenant to Landlord under this Lease, and Tenant hereby authorizes and directs
any such assignee or sublessee to make such payments of rent direct to Landlord
upon receipt of notice from Landlord. No such subletting, assignment, occupancy,
or collection shall be deemed (i) a waiver of any of Tenant's covenants
contained in this Lease, (ii) a release of any guarantor of this Lease
(including the Guarantor) from further performance of its covenants under such
guaranty (including the Guaranty), (iii) a release of Tenant from further
performance by Tenant of its covenants under this Lease, or (iv) a waiver of any
of Landlord's other rights hereunder.
(c) Notwithstanding the giving by Landlord of its consent to any
sublease or assignment with respect to the Leased Premises, no sublessee or
assignee may exercise any renewal options, expansion options, rights of first
offer or similar rights under this Lease except (x) in accordance with a
separate written agreement entered into directly between such sublessee or
assignee and Landlord, (y) the Renewal Options may be exercised by any permitted
assignee (but not a sublessee) of Tenant's entire interest under this Lease or
(z) Tenant may exercise any Renewal Option notwithstanding the fact that a
sublessee may be in occupancy of all or any portion of the Leased Premises,
provided in the event of clauses (x), (y) or (z) Tenant continues to be liable
for the performance of all obligations hereunder, as increased or otherwise
affected by the exercise of such rights.
(d) Any attempted assignment or sublease by Tenant in violation of
the terms and covenants hereof shall be void and shall be a breach under Section
7.1(a)(iv) hereof. Any consent by Landlord to a particular assignment or
sublease shall not constitute Landlord's consent to any other or subsequent
assignment or sublease, and any proposed sublease or assignment by a sublessee
or assignee of Tenant or any other sublessee or assignee shall be subject to the
provisions hereof as if it were a proposed sublease or assignment by Tenant.
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(e) Notwithstanding anything to the contrary contained in this
Section 8.1, Tenant shall not be permitted to sublease any portion of the Leased
Premises or assign this Lease to (i) any person or entity that is actually a
tenant of the Building at the time the Notice is furnished to Landlord (an
"Actual Tenant"), or (ii) any Affiliate of an Actual Tenant if such Affiliate
intends to use a significant portion of the Leased Premises subject to such
assignment or sublease for purposes of the conduct of the business then being
conducted by the Actual Tenant in its leased premises or such Affiliate is
entering into such assignment or sublease as a means to circumvent the
provisions of clause (i) above.
(f) Any improvements, additions, or alterations to the Building or
the Project that are required by Legal Requirements, or are reasonably deemed
necessary or appropriate by Landlord, as a result of any subletting or
assignment hereunder, shall be installed and provided without cost or expense to
Landlord.
8.2 Assignment by Landlord. Landlord shall have the right to
transfer and assign, in whole or in part, all its rights and obligations
hereunder and in the Project and all other property referred to herein, and in
such event and upon such transfer (any such transferee to have the benefit of,
and be subject to, the provisions of Sections 8.3 and 8.4 hereof), no further
liability or obligation shall thereafter accrue against Landlord hereunder
subject, however, to the following:
(a) If Landlord shall transfer all or any part of its interest in
the Project (which Landlord may do, in its sole discretion), then except as to
the granting of a mortgage or other security interest or the foreclosure or
granting of a deed-in-lieu of foreclosure with respect thereto (or the transfer
of the Project to a lender for a nominal amount, which transfer has the
practical effect of a deed-in-lieu of foreclosure), Landlord shall either (i)
cause the transferee, in a writing delivered to Tenant, to assume (subject to
the limitations of liability contained in Section 8.4) the obligations of
Landlord hereunder equal to the percentage interest being transferred to the
transferee, whether they arise before or after the date of the transfer, or (ii)
give Tenant forty-five (45) days advance notice of the proposed transfer
("Advance Transfer Notice"). If Landlord elects (i) and the transfer in question
is a transfer of all of transferor's interest in the Project, then the
transferor shall no longer be liable under this Lease for any obligations of
Landlord hereunder assumed by the transferee, whether arising before or after
the transfer. If Landlord elects (ii), then (A) the transferee shall not be
required to assume nor be liable for any obligations to the extent they accrue
prior to the date of transfer; however, the transferee must assume the
obligations accruing after the date of the transfer and then the transferor
shall not be liable under this Lease for such obligations (and with respect to
obligations accruing after such date, the transferee's liability shall be
limited by the terms of Section 8.4), (B) Tenant shall notify Landlord in
writing (the "Claims Notice") within thirty (30) days after receipt of the
Advance Transfer Notice of any claims or potential claims (specified in
reasonably sufficient detail for Landlord to understand the claim and made in
good faith) then known to Tenant after reasonable and diligent inquiry by Tenant
that Tenant may have against Landlord under this Lease which have accrued
against Landlord prior to the date of the Claims Notice, and the Claims Notice
shall, if requested by Landlord, thereafter be supplemented by Tenant as of the
date of the transfer, and (C) an amount equal to the net sales proceeds
(hereinafter defined) received by Landlord from such transfer shall constitute
assets against which Tenant may proceed under Section 8.4 hereof (as to breaches
by transferor only), but Tenant may so proceed if and only if, with respect to
the claim giving rise to the judgment referred to in Section 8.4, (x) the claim
accrued prior to the transfer, and (y) either of the following clauses (1) or
(2) is satisfied:
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(1) the claim was specified in the Claims Notice or any
supplement thereto as requested by Landlord as provided in Section
8.2(a)(ii)(B) and Tenant commenced an action against the transferor
to recover on such claim within six (6) months after consummation of
the transfer; or
(2) (aa) the claim was any other claim of Tenant against
Landlord under this Lease, (bb) the claim was not actually known to
Tenant as of the date of delivery of the Claims Notice or any
supplement thereto requested by Landlord as provided in Section
8.2(a)(ii)(B), (cc) the claim was one which could not have been
known by Tenant as of such date by reasonable and diligent inquiry
by Tenant, and (dd) Tenant commenced an action against Landlord to
recover on such claim within one (1) year after consummation of the
transfer (however, with respect to any claims made by Tenant
pursuant to Section 2.3(e) hereof, such one (1) year limitation
shall not apply and Tenant must have commenced such action against
Landlord within sixty (60) days after the applicable audit was
completed pursuant to Section 2.3(e) hereof),
otherwise, neither Landlord nor the transferee shall have any liability for
obligations which accrued prior to the date of transfer however (i) Landlord and
the transferee shall be liable under this Lease (subject to the provisions of
Section 8.4), for the Improvements Allowance which remains unpaid pursuant to,
and subject to the provisions of, Section 2.5 and/or any Delay Payments which
remain unpaid pursuant to, and subject to the provisions of, Section 1.2(d)(ii)
hereof and (ii) the offset provisions described in Section 2.1(e) shall still be
applicable with respect to items accruing after the date of the Claims Notice.
Tenant shall keep confidential the nature of any proposed transfer revealed by
Landlord as well as the identity of the proposed transferee until the same
become publicly known (except as may be necessary in connection with any lawsuit
contemplated by this Section 8.2). For purposes of this Section 8.2, "net sales
proceeds" shall mean the gross proceeds from the sale or transfer of all or any
portion of Landlord's interest in the Project, less (i) the sums necessary to
satisfy any existing liens against the Project, and (ii) the reasonable costs
and expenses of the sale or transfer.
(b) The failure of Tenant to deliver timely the Claims Notice or any
supplements thereto as requested by Landlord as provided in Section
8.2(a)(ii)(B) shall, in the absence of the application of clause (2) of the
foregoing subsection (a), constitute the representation by Tenant that, as of
the last date for timely delivery of such notice, there existed no claim which
should have been described in such notice if the same had been timely delivered,
and Tenant shall thereafter be estopped from proceeding against the net sales
proceeds from the transfer with respect to any such claim which should have been
so described.
(c) Notwithstanding the right given Tenant to proceed against net
sales proceeds as provided hereinabove, Tenant shall not have a lien against
such proceeds nor shall Tenant have the right to stop or delay any transfer, or
the escrowing of funds in connection therewith; however, Tenant shall be
permitted to seek to obtain a court order or an injunction to prevent the
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dissipation of the net sales proceeds if such dissipation would irreparably harm
Tenant's ability to collect on any claim set forth in the Claims Notice (as
supplemented as provided in Section 8.2(a)(ii)(B) above). Tenant shall attorn to
any party to whom Landlord transfers the Building pursuant to the terms hereof.
8.3 Peaceful Enjoyment. Landlord covenants that Tenant shall and may
peacefully have, hold and enjoy the Leased Premises, subject to the other terms
hereof, provided that Tenant pays the Rent and other sums herein recited to be
paid by Tenant and performs all of Tenant's covenants and agreements herein
contained. It is understood and agreed that this covenant and any and all other
covenants of Landlord contained in this Lease shall be binding upon Landlord and
its successors only with respect to breaches occurring during the ownership of
Landlord's interest hereunder.
8.4 Limitation of Personal Liability. Tenant specifically agrees to
look solely to Landlord's (and Landlord's successors' and assigns') interest in
the Project and the rent and other income derived therefrom after the date
execution is levied for the recovery of any monetary judgment against Landlord,
it being agreed that Landlord and Landlord's successors and assigns (and, to the
extent Landlord and/or such successors or assigns are partnerships or
corporations, their respective agents, employees, officers, directors, partners
[direct or indirect, general or limited], servants or shareholders) shall never
be personally liable for any such judgment. The provisions contained in the
foregoing sentences are not intended to, and shall not, limit any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest or any suit or action in connection with
enforcement of collection of amounts that may become owing or payable under or
on account of insurance maintained by Landlord (so long as such relief, suit or
action does not have the effect of personal liability for Landlord or Landlord's
successors or assigns (or their respective agents, employees, officers,
directors, partners [direct or indirect, general or limited], servants or
shareholders). It is specifically agreed that upon a foreclosure of a lien on
the Project (or upon delivery of a deed in lieu of foreclosure) the purchaser at
the foreclosure sale (or grantee of a deed in lieu of foreclosure) shall be
deemed to be a successor to Landlord under this Lease.
8.5 Memorandum of Lease. Neither Landlord nor Tenant shall record
this Lease. Landlord and Tenant shall enter into the Memorandum of Lease
attached hereto as Exhibit H for the purpose of recording the same, and Tenant
may, at Tenant's expense, record the same.
8.6 Consents. Whenever in this Lease it is agreed that a party shall
not unreasonably withhold its consent or approval, said party shall likewise not
unreasonably condition or delay its consent.
8.7 Confidentiality. Except as required by Legal Requirements or for
financial reporting purposes, Landlord and Tenant shall not disclose the terms
of this Lease to any third party prior to the fifth (5th) anniversary of the
Commencement Date; provided, however, without Tenant's prior consent, Landlord
shall be permitted to disclose the terms of this Lease to (a) Landlord's
partners and Affiliates and Landlord's and their respective officers, directors,
employees and agents, (b) any current or prospective holder of any mortgage or
voluntary lien on the Project or any portion thereof or interest therein, (c)
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any prospective purchaser or other transferee of the Project or any portion
thereof or interest therein, and (d) legal counsel or other consultants to
Landlord; and provided further, however, without Landlord's prior consent,
Tenant shall be permitted to disclose the terms of this Lease to (a) legal
counsel or other consultants (including brokers) to Tenant, (b) any permitted
assignee, sublessee or other transferee of Tenant's interest under this Lease,
(c) Tenant's partners, officers, directors, agents or employees, and (d) any
prospective financing source of Tenant. In the event Landlord or Tenant makes
any disclosures to third parties pursuant to the foregoing provisions, the party
making such disclosure shall obtain written agreements from any individual to
whom such disclosure is made to not further disclose the terms of this Lease to
anyone as to whom disclosure is prohibited by the terms of this Section 8.7.
Notwithstanding anything to the contrary contained in this Lease, any breach by
Landlord or Tenant of the provisions of this Section 8.7 shall not be a default
under the terms of this Lease but the non-defaulting party's sole remedy shall
be to commence actions at law or in equity for an injunction or to recover
damages suffered by such party on account of the breach.
8.8 Publicity. Landlord agrees that there shall be no press releases
or other publicity originated by Landlord, or any agents or representatives
thereof, concerning the terms of this Lease or the identity of Tenant or any
Affiliates of Tenant (other than customary brochures or marketing materials)
without the prior consent of Tenant. Tenant agrees that there shall be no press
releases or other publicity (other than announcements necessary in the conduct
of Tenant's business such as announcements of intended move and address change)
originated by Tenant, or any agents or representatives thereof, concerning the
terms of this Lease or Landlord or any Affiliates of Landlord or relating to or
including the Building or the Project without the prior consent of Landlord.
Notwithstanding anything to the contrary contained in this Lease, any breach by
Landlord or Tenant of the provisions of this Section 8.8 shall not be an Event
of Default but the nonbreaching party's sole remedy shall be to commence actions
at law or in equity for an injunction or to recover damages suffered by such
party on account of such breach.
ARTICLE IX
OPTIONS
9.1 Renewal Options.
(a) As long as an Event of Default has not occurred, or if an Event
of Default has occurred that it is not then continuing, and subject to the
conditions hereinafter set forth, Tenant is hereby granted options
(individually, a "Renewal Option" and collectively, the "Renewal Options") to
renew the Term with respect to all (or, subject to the limitations set forth
below, a portion) of the Leased Premises for two (2) successive periods
(individually a "Renewal Term" and collectively the "Renewal Terms") of five (5)
years each, but in no event to exceed a maximum additional period in the
aggregate of ten (10) years beyond the expiration of the Initial Term (the
"Renewal Option Period"). The first Renewal Term shall commence at the
expiration of the Initial Term and the second Renewal Term shall commence at the
expiration of the first Renewal Term.
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Tenant must furnish Landlord with written notice of its intent to
exercise the applicable Renewal Option and the portion of the Leased Premises
(subject to the limitations set forth herein) (the "Renewal Space") which Tenant
elects to lease during the applicable Renewal Term, no later than twenty-four
(24) months prior to the expiration of the Initial Term or the first Renewal
Term, as applicable (the "Intent Notice"). If Tenant intends to exercise any
Renewal Option as to a portion, and not all, of the then current Leased Premises
(i) the Renewal Space must be configured in full floor increments, (ii) the
Renewal Space must be configured so that all floors comprising the Renewal Space
are contiguous (excluding any floors Landlord has recaptured pursuant to the
provisions of this Lease), (iii) in all events the Renewal Space must contain
either the first floor or the highest floor of the Building which was part of
the Leased Premises immediately prior to the commencement of the applicable
Renewal Term; provided, however, if Tenant elects to lease the highest floor and
the remaining floors of the Renewal Space which are contiguous thereto, Tenant
shall also be permitted to lease all of the Net Rentable Area on the first floor
of the Building as a part of the Renewal Space, (iv) the Renewal Space must
contain at least fifty percent (50%) of the total square footage of Net Rentable
Area of the Building, and (v) the space not included in the Renewal Space must
be delivered to Landlord in accordance with the provisions of Section 5.2(d) of
this Lease except that Tenant, at its sole cost is obligated to seal any
floor penetrations between floors which are included in the Renewal Space and
ones which are not included in the Renewal Space with Building Standard material
in a manner reasonably satisfactory to Landlord.
If Tenant timely delivers the Intent Notice to Landlord, Landlord
shall no later than twenty-three (23) months prior to the expiration of the
Initial Term or the first Renewal Term, as applicable, deliver to Tenant written
notice ("Rate Notice") of Landlord's good faith determination of the Market Base
Rental Rate (defined below) for the Renewal Space as of the commencement of the
applicable Renewal Term and any Parking Rental (defined below) for the Parking
Permits (if applicable pursuant to subsection 9.1(b)(iii) below). If Tenant
objects to Landlord's determination of the Market Base Rental Rate within ten
(10) days of receipt of the Rate Notice, Landlord and Tenant shall use good
faith efforts (neither party acting arbitrarily or capriciously to resolve their
differences as to the Market Base Rental Rate within thirty (30) days after
Tenant's receipt of the Rate Notice (the "Renewal Election Period"). If Landlord
and Tenant agree in writing as to the Market Base Rental Rate prior to the
expiration of the Renewal Election Period, the Market Base Rental Rate so agreed
to by Landlord and Tenant shall be applicable if Tenant, in its sole
discretion, elects to exercise the applicable Renewal Option prior to the
expiration of the Renewal Election Period. If Tenant timely furnishes the Intent
Notice to Landlord, and Tenant and Landlord cannot agree to the Market Base Rate
for the Renewal Space for the applicable Renewal Term, prior to the expiration
of the Renewal Election Period, Tenant may elect to submit the determination of
the Market Base Rental Rate to arbitration in accordance with subsection (d)
below by furnishing notice to Landlord in writing (the "Election Notice") prior
to the expiration of the Renewal Election Period.
If Tenant timely delivers the Intent Notice and the Election Notice
to Landlord, and at any time prior to the commencement of the applicable Renewal
Term an Event of Default occurred, Landlord, at its sole option during the
continuance of such Event of Default, may terminate any right by Tenant under
this Section 9.1 to exercise the applicable Renewal Option and the Renewal
Option (and any subsequent Renewal Option) shall expire and thereafter shall be
exercisable by Tenant. If Tenant fails to timely deliver the Intent Notice or
the Election Notice as provided above, the applicable Renewal Option and the
subsequent Renewal Option (if applicable shall terminate automatically, and
Tenant shall have waived forever its right to renew and extend the Term.
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If Tenant elected during the Renewal Election Period to submit the
determination of the Market Base Rental Rate to arbitration and the decision of
the arbitrators with respect to Market Base Rental Rate cannot be or is not
rendered on or prior to the date that is which is fifteen (15) months and five
(5) days prior to the expiration of the then current Term of this Lease, then
Tenant shall have the option to exercise its right to renew the Term of this
Lease by written notice deliverable to Landlord prior to the date which is
fifteen (15) months prior to the expiration of the then current term, in which
event its election to renew shall become irrevocable and Tenant shall be bound
by the decision of the arbitrators made pursuant to subsection (d) below (as
will Landlord). If Tenant fails to timely give such notice of its election to
exercise the Renewal Option prior to the date fifteen (15) months prior to the
expiration of the then current Term of this Lease, Tenant shall be deemed to
have elected to waive forever its right to renew and extend the Term.
If Tenant elected during the Renewal Election Period to submit the
determination of the Market Base Rental Rate to arbitration and the decision of
the arbitrators is rendered prior to the date which is fifteen (15) months and
five (5) days prior to the expiration of the then current Term of this Lease, on
or prior to the earlier of (x) fifteen (15) months prior to the expiration of
the then current Term of this Lease, or (y) thirty (30) days following the
rendering of such decision, Tenant may elect one (1) of the following options:
(A) to not exercise the subject Renewal Option and thereby permit this Lease to
expire upon the expiration of the then existing Term (and the Renewal Options
not previously exercised in accordance with the terms of this Lease shall
automatically terminate and Tenant shall have waived forever its right to
further extend the Term), or (B) to renew the Lease upon the Market Base Rental
Rate determined by arbitration subject to subsection (d) below. If Tenant fails
to timely exercise option (A) or (B), Tenant shall be deemed to have elected
option (A).
If Landlord and Tenant do not agree in writing as to the Market Base
Rental Rate prior to the exercise by Tenant of the applicable Renewal Option all
payments of Rent as to the Renewal Space during the applicable Renewal Term
shall be made as and when required in this Lease, notwithstanding any unresolved
objections, based upon the Market Base Rental Rate specified in the Rate Notice,
and upon resolution of the arbitration pursuant to subsection (d) below, any
overpayment or underpayment theretofore made shall be adjusted in accordance
with the Market Base Rental Rate as determined by arbitration by decreasing or
increasing, as the case may be, the next installment or installments of Base
Rental coming due by the amount of such overpayment or underpayment, as the case
may be (and no interest or penalty shall be applied thereto).
(b) The renewal of this Lease pursuant to the exercise of a Renewal
Option by Tenant shall be upon the same terms and conditions of this Lease
(including, without limitation, Tenant's obligation to pay Tenant's Additional
Rental, Tenant's Forecast Additional Rental and Tenant's Additional Rental
Adjustment), except:
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(i) the Base Rental for the Renewal Space during the
applicable Renewal Term shall be the Market Base Rental Rate agreed to by
Landlord and Tenant, or determined pursuant to arbitration in accordance
with, and subject to, subsection (d) below;
(ii) Tenant shall have no option to renew this Lease beyond
the expiration of any Renewal Term (in the event that Tenant fails to
exercise its applicable option to renew as provided above) or, in any
event, beyond the Renewal Option Period;
(iii) at the time of the Tenant's exercise of a Renewal
Option, if the majority of the tenants (other than Tenant) in the Building
and Phase II Building then entering into leases in the Complex are being
charged rental for parking spaces in the Parking Facility, Tenant shall
pay Landlord, as additional rental, a monthly amount (the "Parking
Rental") equal to the rates charged by such landlords for parking in the
Complex (taking into account whether such parking spaces are for regular,
reserved, or executive parking spaces) for monthly contract parking in the
Parking Facility multiplied by the number of Parking Permits leased by
Tenant pursuant to this Lease, which Parking Rental shall be payable in
accordance with Section 2.1 hereof;
(iv) effective on the date the applicable Renewal Term
commences, the total number of Parking Permits leased by Tenant pursuant
to Section 3.4 hereof shall be reduced by one (1) for each three hundred
seventeen (317) square feet of space comprising an area determined by
subtracting the Net Rentable Area of the Renewal Space from the Net
Rentable Area of space comprising the Leased Premises immediately prior to
the commencement of the applicable Renewal Term (with the number of
Assigned Parking Permits and Converted Spaces being reduced in accordance
with the provisions of Section 3.4(a) above);
(v) the Leasehold Improvements will be provided in their then
existing condition, on an "as is" basis at the time the applicable Renewal
Term commences, and Tenant shall not be entitled to any construction,
buildout or other allowances with respect to the Renewal Space during the
Renewal Term. Additionally, the determination of the Market Base Rental
Rate will take into account the fact that the Renewal Space is being taken
by Tenant on an "as-is" and without allowance basis; and
(vi) the Leased Premises shall be the Renewal Space.
(c) Whenever used in this Lease, the term "Market Base Rental Rate"
shall mean the annual net rental rate per square foot (exclusive of expense
pass-through additions, whether characterized as such or not, and exclusive of
any portion of "base rental" attributable to expenses or to an "expense stop")
of Net Rentable Area for the applicable space and for the time period as to
which such rate is being determined, that a willing tenant would pay and a
willing landlord would accept for space in Comparable Buildings, in arm's length
bona fide negotiations, taking into consideration all relevant factors
(including, without limitation, the following factors [collectively, the "Market
Factors"]: rent being charged in other Comparable Buildings, for leases then
being entered into for comparable space to the Renewal Space in the comparable
elevator bank for which the Market Base Rental Rate is being determined;
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location, quality, amenities, age and reputation of the buildings in which the
space being compared is located; use and size of the space under comparison;
location and/or floor level of the subject space and any comparison space within
their respective buildings, including view, elevator lobby exposure, etc.;
definition of "net rentable area" applicable to the spaces; distinction, if any,
between "gross" and "net" rental rates and type, base year or dollar amount for
escalation purposes [both operating costs and real estate taxes] if the
comparison space is being leased on a "gross" lease basis; any other adjustments
[including adjustments by way of indexes] to base rental; extent of services
provided or to be provided; extent and condition of leasehold improvements
provided in the subject space and in any comparison space; abatements pertaining
to the subject space and to any comparison space [including with respect to base
rental, operating expenses and/or real estate taxes, and parking charges];
number of parking spaces and inclusion or exclusion of parking charges in rental
(including any Parking Rental to be charged to Tenant pursuant to the provisions
of subsection (b)(iii) above); lease takeovers/assumptions by the landlord of
the comparison space, if applicable; moving allowances granted, if any;
relocation allowances granted, if any; construction, refurbishment and
repainting allowances granted, if any; club memberships granted, if any; any
other concessions or inducements and the timing of payment of such concessions
or inducements; overall creditworthiness of Tenant and of tenants in any
comparison space; term or length of lease of subject space and of any comparison
space; the time the particular rental rate under consideration was agreed upon
and became or is to become effective; the reputation of the tenant; and payment
of a leasing commission, fees, bonuses or other compensation, whether to
Tenant's representative or to Landlord, to any person or entity affiliated with
Tenant or Landlord, or otherwise). Landlord and Tenant agree that bona fide
written offers and recent leases (not from Affiliates of Landlord) to lease
comparable space located in the Complex from prospective third party tenants (at
arm's length) may be used as an indication of the Market Base Rental Rate but
shall not be conclusive or controlling as to any such rental rates.
(d) If Landlord and Tenant are unable to reach a definitive
agreement as to the Market Base Rental Rate within the Renewal Election Period,
then the Market Base Rental Rate will be submitted to arbitration for resolution
in accordance with Article X hereof, subject to the provisions of this
subsection (d). The instructions to the arbitrators with respect to the
determination of the Market Base Rental Rate will be to determine the Market
Base Rental Rate for the Renewal Space for the Renewal Term as of the
commencement of the Renewal Term. Furthermore, the arbitrator shall be advised,
and Landlord and Tenant agree, that the arbitrators shall determine the Market
Base Rental Rate based on the Market Factors set forth in subsection (c) above.
Notwithstanding anything to the contrary contained in this Section 9.1, the
Market Base Rental Rate during the applicable Renewal Term (whether determined
by the agreement of Landlord and Tenant or pursuant to arbitration) shall in no
event be less than the Base Rental Rate Tenant is obligated to pay under this
Lease immediately prior to the commencement of such Renewal Term.
(e) Tenant may not assign any Renewal Option and no sublessee or
assignee of Tenant may exercise any Renewal Option except as expressly provided
for under Section 8.1(d) of this Lease.
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ARTICLE X
ARBITRATION
10.1 Arbitration.
(a) Either Landlord or Tenant may require that any dispute under
this Lease (excluding any dispute under Section 2.5 of this Lease) be submitted
to arbitration pursuant to the provisions of this Article X (even if not
specifically provided for in the provisions of this Lease); provided, however,
either party may seek a temporary restraining order and/or a preliminary
injunctive relief from a court of competent jurisdiction without being subject
to arbitration with respect thereto. To the extent the provisions of this
Article X vary from or are inconsistent with the Commercial Arbitration Rules of
the American Arbitration Association or any other arbitration tribunal, the
provisions of this Article X shall govern. All arbitrations under this Article X
will be governed by the provisions of this Article X, (to the extent not
inconsistent with this Article X) the Commercial Arbitration Rules of the
American Arbitration Association, and (to the extent not inconsistent with any
of the foregoing) the laws of the State of Texas. All arbitrations hereunder
shall occur at a location in Dallas, Texas, chosen by the arbitrator(s) and
shall be conducted pursuant to the Commercial Arbitration Rules of the American
Arbitration Association (or any successor organization, or if no such successor
organization exists, then from an organization composed of persons of similar
professional qualifications).
(b) In the event a dispute arises under any provision of this Lease
(other than a dispute as to the Market Base Rental Rate under Sections 7.7(b)
and 9.1(d) hereof, with respect to which the provisions of subsection (c) below
shall apply), the party desiring arbitration shall give notice to that effect to
the other party and simultaneously therewith also shall give notice to the
director (the "Director") of the Dallas, Texas regional office of the American
Arbitration Association (or any successor organization, or if no such successor
organization exists, then to an organization composed of persons of similar
professional qualifications), requesting such organization to select, as soon as
possible but in any event within the next thirty (30) days, three (3)
arbitrators with, if reasonably possible, recognized expertise in the subject
matter of the arbitration. At the request of either party, the arbitrators shall
authorize the service of subpoenas for the production of documents or attendance
of witnesses. Within thirty (30) days after their appointment, the arbitrators
so chosen shall hold a hearing at which each party may submit evidence, be heard
and cross-examine witnesses, with each party having at least ten (10) days
advance notice of the hearing. The hearing shall be conducted such that each of
Landlord and Tenant shall have reasonably adequate time to present oral evidence
or argument, but either party may present whatever written evidence it deems
appropriate prior to the hearing (with copies of any such written evidence being
sent to the other party). In the event of the failure, refusal or inability of
any arbitrator to act, a new arbitrator shall be appointed in his stead, which
appointment shall be made in the same manner as hereinbefore provided. The
decision of the arbitrators so chosen shall be given within a period of thirty
(30) days after the conclusion of such hearing, and shall be accompanied by
conclusions of law and findings of fact. The decision in which any two
arbitrators so appointed and acting hereunder concur shall in all cases be
binding and conclusive upon the parties and shall be the basis for a judgment
entered in any court of competent jurisdiction (except that for arbitrations of
the Market Base Rental Rate under Sections 7.7(b) and 9.1, the provisions of
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subsection (c) below shall apply). The fees and expenses of arbitration under
this Article X shall be apportioned to Landlord and Tenant in such a manner as
decided by the arbitrators. Landlord and Tenant may at any time by mutual
written agreement discontinue arbitration proceedings and themselves agree upon
any such matter submitted to arbitration.
(c) If pursuant to the provisions of Sections 7.7(b) or 9.1(d) the
Market Base Rental Rate is to be determined pursuant to arbitration, the Market
Base Rental Rate shall be determined in accordance with the following provisions
of this subsection (c). With respect to arbitration under Section 9.1(d),
Landlord and Tenant agree to proceed in good faith with due diligence so as to
conclude such arbitration prior to fifteen (15) months prior to the expiration
of the then existing Term. Landlord and Tenant may at any time by mutual written
agreement discontinue proceedings under this subsection (c) and themselves agree
upon the Market Base Rental Rate. The determination of the Market Base Rental
Rate shall be resolved as follows:
(i) Within ten (10) days of the expiration of the Renewal
Election Period or Dispute Period (as applicable), Landlord and Tenant
shall each appoint one (1) arbitrator. Each arbitrator shall be a member
of the American Institute of Real Estate Appraisers (or any successor
organization, or if no such successor organization exists, then from
organizations composed of persons of similar professional qualifications),
with the designation M.A.I. and with not less than ten (10) years
experience appraising commercial properties in Dallas, Texas. If either
party fails to timely select an arbitrator, the other party shall be
permitted to select an arbitrator on its behalf within five (5) days of
such failure. Within ten (10) days of the appointment of the two (2)
arbitrators, such arbitrators shall select a third (3rd) arbitrator (who
must have the same qualifications as identified above which is required
for the arbitrators selected by Landlord and Tenant). In the event the two
(2) arbitrators fail to appoint or agree upon such third (3rd) arbitrator
within such ten (10) day period, a third arbitrator shall be selected by
Landlord and Tenant if they so agree upon such third arbitrator within a
further period of ten (10) days. If Landlord and Tenant cannot agree upon
the third arbitrator, Landlord or Tenant shall request the Director to do
so. In the event of the inability or failure of any arbitrator to act,
another arbitrator shall be selected in the same manner as set forth above
for the same arbitrator.
(ii) Within fifteen (15) days after the third (3rd) arbitrator
is appointed pursuant to clause (i) above, the parties shall meet in
Landlord's offices in Dallas, Texas (the "Meeting"), at which Meeting the
parties may each submit evidence, be heard and cross-examine witnesses,
and each of the parties will furnish the arbitrators with such information
as the arbitrators may reasonably request. The Meeting shall be conducted
such that Landlord and Tenant shall have reasonably adequate time to
present oral evidence or argument, but either party may present whatever
written evidence it deems appropriate prior to the Meeting (with copies of
any such written evidence being sent to the other party). Within thirty
(30) days after the conclusion of the Meeting, the arbitrators shall again
meet and simultaneously disclose in writing their respective
determinations for the rate or value they have been instructed to
determine (the "Applicable Arbitrated Amount"). If the determinations of
at least two (2) of the arbitrators shall be identical in amount, said
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amount shall be the Applicable Arbitrated Amount. If the determinations of
at least two (2) of the arbitrators shall not be identical in amount, then
the Applicable Arbitrated Amount shall be the average of the two (2)
closest determinations of the Applicable Arbitrated Amount unless the two
(2) furthest apart are equidistant from the middle Applicable Arbitrated
Amount, in which event the middle Applicable Arbitrated Amount shall
apply. Any such determination of the Applicable Arbitrated Amount shall be
binding and conclusive upon Landlord and Tenant.
(iii) If the decision of the arbitrator under this subsection
(c) shall be held by a court of competent jurisdiction to be unenforceable
for any reason (Landlord and Tenant hereby affirmatively stating it is
their intent and agreement that the decision of the arbitrator will be
legally enforceable as to them), then the determination of the Market Base
Rental Rate shall be subject to litigation in the courts of the State of
Texas with the final determination being made in accordance with a court
judgment, no longer subject to appeal, of a court of competent
jurisdiction. To the extent a court proceeding calls for a determination
of the Market Base Rental Rate for the Renewal Space, Landlord and Tenant
hereby expressly agree that such determination shall be based on the
Market Factors set forth in Section 9.1(c) of this Lease.
ARTICLE XI
MISCELLANEOUS
11.1 Notices. Any notice or other communication required or
permitted to be given under this Lease must be in writing and shall be given or
delivered:
to Landlord at: ▇▇▇▇▇ Corporate Properties LLC
c/o Hines Interests Limited Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to: ERE Yarmouth
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: V. Raja
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to: ERE Yarmouth
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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and with a copy to: ▇▇▇▇▇ Interests Limited Partnership
One Galleria Tower
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to: ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
to Tenant at: ▇▇▇▇▇ Hospitals Limited
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Director of Real Estate
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to: ▇▇▇▇▇ Healthcare Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to: ▇▇▇▇▇▇ and ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
sent by certified United States Mail, return receipt requested, telecopy, or by
Federal Express (or other national overnight delivery service) or other courier
service. Notices sent via certified United States Mail shall be deemed received
two (2) Business Days after being deposited in a regularly maintained receptacle
for the United States Mail. Notices sent via telecopy shall be deemed received
upon receipt (provided transmission and receipt thereof is during Building
Operating Hours on Business Days, otherwise, such telecopied notices shall be
deemed received on the next Business Day) by the sender of electronic or
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telephonic confirmation of the transmission thereof. Any other notice shall be
deemed given upon receipt or refusal thereof. Either party shall have the right
to change its address to which notices shall thereafter be sent and the party to
whose attention such notice shall be directed by giving the other party notice
thereof in accordance with the provisions of this Section 11.1. Additionally,
each of Landlord and Tenant may designate up to three (3) additional addresses
to which copies of all notices shall be sent. Additionally, Tenant agrees that
copies of all notices required or permitted to be given to Landlord under
Section 11.1 hereof shall not be effective unless sent concurrently to each
lessor under any ground or land lease covering all or part of the Project Land
and each holder of a mortgage or deed of trust encumbering the Project and/or
the Project Land that notifies Tenant in writing of its interest and the address
to which notices are to be sent, which notices must be sent in the same manner
as such notices are to be sent to Landlord. Promptly after request by Tenant
therefor, Landlord shall deliver to Tenant a list of the names and current
addresses of such lessors and/or holders of liens.
11.2 Brokers. Except as provided in that certain Registration and
Commission Agreement dated January 9, 1998, by and between Landlord, as assignee
of HILP, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ pursuant to which Landlord has agreed to pay a
real estate brokerage fee upon the terms described therein, Landlord and Tenant
each represents to the other that it has not engaged, and owes no fee to, any
other broker, agent or similar party with respect to the transactions
contemplated by this Lease. Accordingly, Tenant agrees to indemnify and hold
harmless Landlord from and with respect to any claims for a brokerage fee,
finder's fee or similar payment with respect to this Lease that is made by any
party claiming by, through or under Tenant. Similarly, Landlord agrees to
indemnify and hold harmless Tenant from and with respect to any claims for a
brokerage fee, finder's fee or similar payment with respect to this Lease that
is made by a party claiming by, through or under Landlord.
11.3 Moving Procedures. Once Tenant is permitted to take occupancy
of the Leased Premises pursuant to the terms of this Lease, Tenant's move into
the Leased Premises shall be governed by the rules and regulations which shall
be provided by Landlord and approved by Tenant, which approval shall not be
unreasonably withheld.
11.4 Definitions. As used in this Lease, the following terms shall
have the respective meanings indicated and such meanings are incorporated in
each such provision where used as if fully set forth therein:
"Affiliate" shall mean any person or entity controlling, controlled by, or
under common control with, another person or entity. "Control" as used
herein means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of such controlled
person or entity; the ownership, directly or indirectly, of at least
fifty-one percent (51%) of the voting securities of, or possession of the
right to vote, in the ordinary direction of its affairs, at least
fifty-one percent (51%) of the voting interest in, any person or entity
shall be presumed to constitute such control. In the case of Landlord or
Tenant, the term Affiliate shall also include any person or entity
controlling or controlled by or under common control with any general
partner or member of Landlord or Tenant or any general partner of
Landlord's or Tenant's general partner or member.
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"Base Building" shall mean the Building shell plus the Base Building
Improvements described in Exhibit C-1.
"Base Building Systems" shall mean the mechanical, heating, ventilating,
air conditioning, electrical, life safety, plumbing, access control,
domestic water, elevators and other systems comprising the Base Building.
"Building II Lease" shall mean that certain Office Lease Agreement dated
May 13, 1998, by and between ▇▇▇▇▇▇ ▇▇▇▇▇ Land, L.P. and Tenant, with
respect to the lease of certain space in the Phase II Building.
"Building Plans and Specifications" shall mean working drawings of the
Base Building prepared for Landlord by HaldemanPowell + Partners
sufficiently detailed and complete for Landlord to obtain a building
permit for the construction of the Base Building, and upon obtaining the
same, to cause the construction of the Base Building, as such drawings may
be modified by Landlord from time to time subject to the provisions of
this Lease (including without limitation the exhibit hereto.
"Building Operating Hours" shall mean 7:00 a.m. until 6:00 p.m. Monday
through Friday and 8:00 a.m. through 1:00 p.m. on Saturday, excluding
Holidays.
"Business Days" shall mean the days national banks are open for business
in Dallas, Texas.
"Company" shall mean ▇▇▇▇▇ Hospitals Limited, a Texas limited partnership.
"Comparable Buildings" shall mean first class, high rise office buildings
located in the North Dallas Area. Landlord and Tenant hereby agree that,
as of the Effective Date, the following buildings are Comparable
Buildings: (1) One Galleria Tower, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
(2) Two Galleria Tower, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; (3) Oryx
Energy Center, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, (4) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇ and ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; (5) Providence
Tower, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; (6) Spectrum Center,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and (7) The Colonnade, 15301,
15303, and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
"Delay Items" shall mean any long lead time Tenant Improvement items
(e.g., extraordinary millwork) or services or design modifications which
have been requested by Tenant which could result in the Tenant
Improvements for a Major Portion not being completed prior to the
Scheduled Completion Date for such Major Portion set forth in Section
1.2(d) (without taking into account extensions for Force Majeure Delays,
Tenant Delays and Tenant Improvement Delays) and which were identified by
Landlord as long lead time items within thirty (30) days after Landlord
had been provided with Tenant's plans and specifications which included
such Tenant Improvement item, service or design modification.
"Financial Institution" shall mean any savings and loan association, a
savings bank, a commercial bank or trust company (whether acting
individually or in any fiduciary capacity), an insurance company, a
religious, charitable or educational institution, a state, municipal or
private employees' welfare, pension or retirement fund or system, an
investment banking firm, a real estate investment trust, or any other
similar institution.
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"First Class Building Standards" shall mean a quality that is equal to or
in excess of the quality of first class major office projects located in
the North Dallas Area; provided Landlord's obligation to comply with First
Class Building Standards shall be limited by the physical limitations of
the Project as of the Commencement Date and Landlord shall not be required
to make alterations, additions, replacements or improvements to comply
with First Class Building Standards. Landlord and Tenant hereby agree
that, as of the Effective Date, the following office projects are "first
class major office projects": (1) One Galleria Tower, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; (2) Two Galleria Tower, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇; (3) Oryx Energy Center, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
(4) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇ and ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
(5) Providence Tower, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; (6)
Spectrum Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and (7) The
Colonnade, 15301, 15303, and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
"Force Majeure Delays" means the number of days that Landlord is actually
delayed in completing any portion of the Signs, Tenant Improvements, Base
Building Improvements, and Base Building in any Major Portion due to Force
Majeure Events. Landlord shall provide Tenant written notice of any Force
Majeure Delays within fifteen (15) days after (1) Landlord receives
written notice from the General Contractor or Tenant Contractor claiming
that Force Majeure Events have occurred, or (2) Landlord otherwise becomes
aware that any such Force Majeure Events have occurred. Landlord shall
include in the construction contract with each of the General Contractor
and Tenant Contractor a requirement that the contractor send
simultaneously to Tenant any notices of Force Majeure Events such
contractor sends to Landlord and any notices so sent to Tenant shall
satisfy any notice of such event required to be furnished to Tenant by
Landlord (but any failure by such General Contractor or Tenant Contractor
to so comply shall not be a default by Landlord under this Lease).
"Force Majeure Events" shall mean events beyond the Landlord's or Tenant's
(as the case may be) control, which shall include, without limitation, all
labor disputes, Legal Requirements, fire or other casualty, inability to
obtain any material or services other than the inability to obtain
materials due to Landlord's failure to order such materials or services
timely due to reasons with Landlord's reasonable control, acts of God, or
any other cause not within the reasonable control of Landlord or Tenant
(as the case may be).
"Governmental Authority" shall mean the United States, the state, county,
city and political subdivision in which the Project is located or which
exercises jurisdiction over the Project, and any agency, department,
commission, board, bureau or instrumentality of any of them which
exercises jurisdiction over the Project.
"Hazardous Materials" shall mean any flammables, explosives, radioactive
materials, asbestos-containing materials, the group of organic compounds
known as polychlorinated biphenyls and any other hazardous, toxic or
dangerous waste, substance or materials defined as such in (or for
purposes of) the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended, the Hazardous Materials Transportation
Act, the Resources Conservation and Recovery Act of 1976, the Toxic
Substance Control Act or any so called "Superfund" or "Superlien" law or
any other Legal Requirement from time to time in effect regulating,
relating to or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material.
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"HILP" shall mean ▇▇▇▇▇ Interests Limited Partnership, a Delaware limited
partnership.
"Hines Group" shall mean (i) ▇▇▇▇▇ ▇.▇., or (ii) any partnership,
corporation or other entity in which ▇▇▇▇▇ ▇.▇. is actively and
substantially involved so long as ▇▇▇▇▇ ▇.▇. owns a substantial economic
interest in such firm or entity.
"▇▇▇▇▇ ▇.▇." shall mean ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or in the
event of the death or disability of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, the estate of both or either of them.
"Hines Manager" shall mean a person or entity which is a member of Hines
Group or any partnership, corporation or other entity whose day-to-day
activities are controlled and directed (directly or indirectly) by a
member of ▇▇▇▇▇ Group and in which a member of the ▇▇▇▇▇ Group owns
(directly or indirectly) a substantial economic interest.
"Holidays" shall mean the following dates: (a) New Year's Day, (b)
Memorial Day, (c) Independence Day, (d) Labor Day, (e) Thanksgiving Day
and the day thereafter, and (f) Christmas Day. If, in the case of any
holiday described in (a) through (f) above, a different day shall be
observed than the respective day described above, then the day that
constitutes the day observed by national banks in Dallas, Texas on account
of such holiday shall constitute the holiday under this Lease.
"Initial REA" shall mean that certain Construction, Operation and
Reciprocal Easement Agreement for Galleria North dated May 14, 1998.
"Lease Year" shall mean a period of one (1) year. The first Lease Year for
any space in the Leased Premises shall commence on the applicable Rental
Commencement Date for such space and shall end on the day next preceding
the first (1st) anniversary of the Commencement Date. Lease Year 2 as to
the Leased Premises commences upon the expiration of Lease Year 1 with
respect to such space and all subsequent Lease Years commence upon the
expiration of the prior Lease Year with respect to such space.
"Leasehold Improvements" shall mean all leasehold improvements (other than
leasehold improvements which are Base Building Improvements) installed in
the Leased Premises, including the Tenant Improvements.
"Legal Requirements" shall mean any law, statute, ordinance, order, rule,
regulation or requirement of a Governmental Authority.
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"North Dallas Area" shall mean the area of suburban Dallas, Texas located
within a 2-mile radius of the intersection of the Dallas North Tollway and
LBJ Freeway (Interstate 635).
"REA" shall mean that certain Construction, Operation and Reciprocal
Easement Agreement for Galleria North dated May 14, 1998, as amended from
time to time.
"Rent" shall mean Base Rental, Tenant's Additional Rental, Tenant's
Forecast Additional Rental, Tenant's Additional Rental Adjustment, and all
other sums which Tenant is obligated to pay to Landlord or to reimburse
Landlord as required by the terms of this Lease.
"substantially completed" or "substantially complete" shall mean the
completion of all items of construction in substantial compliance with the
plans, specifications and other contract documents for the subject work
except for minor "punch list" items which in the aggregate do not
materially interfere with the use and occupancy of the subject space for
its intended purposes and which can be completed without materially
interfering with the use of such space.
"Tenant Construction Costs" shall mean the total amount to be paid for the
construction of the Tenant Improvements as provided in the Construction
Contract with the Tenant Contractor. Landlord and Tenant recognize that
the Construction Contract may cover the construction of some Base Building
Improvements (and not just the Tenant Improvements), in which event the
Tenant Contractor will differentiate between the construction costs which
are Tenant's and Landlord's costs in accordance with the provisions of
Exhibit C-1 and Exhibit D-1.
"Tenant Delays" shall mean the number of days that Landlord is actually
delayed in completing any portion of the Signs, Base Building or the Base
Building Improvements for any Major Portion of the Initial Leased
Premises, the Adjacent Garage, or the Project as a result of (i) changes
to any portion of the Base Building, the Adjacent Garage, the Project or
the Base Building Improvements requested to be made by Tenant, (ii) any
failure by Tenant to comply with the schedules set forth in Article V and
Exhibit D-1 hereof, and (iii) any other delay caused by Tenant or Tenant's
contractors (including the contractor constructing the Base Building and
the Tenant Improvements), subcontractors, agents, architects, engineers or
consultants. Landlord shall provide Tenant written notice of any Tenant
Delays within fifteen (15) days after (1) Landlord receives written notice
from the General Contractor or Tenant Contractor that any such delays have
occurred, or (2) Landlord otherwise becomes aware that any such delays
have occurred. Landlord shall include in the construction contract with
each of the General Contractor and Tenant Contractor a requirement that
the contractor send simultaneously to Tenant any notices of Tenant Delays
such contractor sends to Landlord and any notices so sent to Tenant shall
satisfy any notice of such event required to be furnished to Tenant by
Landlord (but any failure by such General Contractor or Tenant Contractor
to so comply shall not be a default by Landlord under this Lease).
-106-
"Tenant Improvements Completion Date" shall mean the date when all Tenant
Improvements (excluding Delay Items) on all floors of a Major Portion of
the Initial Leased Premises have been certified as substantially complete
by Tenant's architect for the Tenant Improvements and a certificate of
occupancy or other governmental authorizations shall have been issued for
Tenant's use of such Major Portion of the Initial Leased Premises. The
Tenant Improvements Completion Date shall be determined in accordance with
the procedures set forth in Paragraph 10 of Part II of Exhibit D-1.
"Tenant Improvement Delays" shall mean the number of days construction of
any portion of the Tenant Improvements in a Major Portion of the Initial
Leased Premises is actually delayed as the result of the acts or omissions
of Tenant, or contractors, architects, engineers or consultants hired by
Tenant, including without limitation (i) changes issued by any of the
foregoing to the Bid Documents (as defined in Exhibit D-1) or (ii) any
failure by Tenant to comply with the schedule set forth in Article V and
Exhibit D-1 hereof. Landlord shall provide Tenant written notice of any
Tenant Improvement Delays within ten (10) days after (1) Landlord receives
written notice from the General Contractor or Tenant Contractor that any
such delays have occurred, or (2) Landlord otherwise becomes aware that
any such delays have occurred. Landlord shall include in the construction
contract with each of the General Contractor and Tenant Contractor a
requirement that the contractor send simultaneously to Tenant any notices
of Tenant Improvement Delays such contractor sends to Landlord and any
notices so sent to Tenant shall satisfy any notice of such event required
to be furnished to Tenant by Landlord (but any failure by such General
Contractor or Tenant Contractor to so comply shall not be a default by
Landlord under this Lease).
"Tenant Improvements" shall mean those leasehold improvements (other than
leasehold improvements which are Base Building Improvements described in
Exhibit C-1) to be initially installed in the Initial Leased Premises
(excluding any Designated Floors) pursuant to Section 5.2(a) hereof.
11.5 Binding on Successors. This Lease shall be binding upon and
inure to the benefit of the successors and assigns of Landlord, and shall be
binding upon and inure to the benefit of Tenant, its successors, and, to the
extent assignment may be approved or deemed approved by Landlord hereunder,
Tenant's assigns. Where appropriate the pronouns of any gender shall include the
other gender, and either the singular or the plural shall include the other.
11.6 Rights and Remedies Cumulative. Except as otherwise provided
herein, all rights and remedies of Landlord and Tenant under this Lease shall be
cumulative and none shall exclude any other rights or remedies allowed by law.
11.7 Governing Law. THIS LEASE IS PERFORMABLE IN DALLAS COUNTY,
TEXAS, AND ALL OF THE TERMS HEREOF SHALL BE GOVERNED BY AND CONSTRUED ACCORDING
TO THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES.
-107-
11.8 Rules of Construction. The terms and provisions of this Lease
shall not be construed against or in favor of a party hereto merely because such
party is the "Landlord" or the "Tenant" hereunder or such party or its counsel
is the draftsman of this Lease.
11.9 Authority. If Tenant is a corporation, partnership or other
entity, Tenant warrants that all consents or approvals required of third parties
(including but not limited to its Board of Directors or partners) for the
execution, delivery and performance of this Lease have been obtained and that
Tenant has the right and authority to enter into and perform its covenants
contained in this Lease. Likewise, if Landlord is a corporation, partnership or
other entity, Landlord warrants that all consent or approvals required of third
parties (including but not limited to its Board of Directors or partners) for
the execution, delivery and performance of this Lease have been obtained and
that Landlord has the right and authority to enter into and perform its
covenants contained in this Lease.
11.10 Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and shall be enforceable to the extent permitted by
law.
11.11 Time of the Essence. Time is of the essence in this Lease.
11.12 Amendments. This Lease may not be altered, changed or amended,
except by an instrument in writing signed by Landlord and Tenant.
11.13 Entirety. This Lease embodies the entire agreement between
Landlord and Tenant relative to the subject matter of this Lease and all
summaries, proposals, letters and agreements with respect to the subject matter
of this Lease that were entered into prior to the date of this Lease shall be of
no further force and effect after the date hereof.
11.14 References. All references in this Lease to days shall refer
to calendar days unless specifically provided to the contrary.
11.15 Exhibits. The terms and provisions of Exhibits A through S,
inclusive, attached hereto are hereby incorporated herein and made a part hereof
for all purposes.
11.16 Counterpart Execution. This Lease may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts together shall constitute one and the same instrument.
11.17 Guaranty. ▇▇▇▇▇ Healthcare Corporation, a Delaware corporation
("Guarantor") has executed and delivered to Landlord on the Effective Date a
Lease Guaranty Agreement in the form attached hereto as Exhibit J ("Guaranty")
to guaranty to Landlord all of Tenant's obligations hereunder as more
particularly described therein.
[END OF PAGE: SIGNATURE PAGES FOLLOW]
-108-
[SIGNATURE PAGE TO OFFICE LEASE AGREEMENT - TOWER I]
IN WITNESS WHEREOF, the parties hereto have executed and sealed this
Lease as of the date aforesaid.
LANDLORD:
Texas Corporate Properties, L.P.,
a Texas limited partnership
By: Texas Corporate Properties GP, LLC,
its general partner
By: ▇▇▇▇▇ Corporate Properties, LLC,
its sole member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
-109-
[SIGNATURE PAGE TO OFFICE LEASE AGREEMENT - TOWER I]
TENANT:
▇▇▇▇▇ HOSPITALS LIMITED, a Texas limited
partnership
By: ▇▇▇▇▇ HealthSystem Hospitals, Inc.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
-110-
EXHIBIT A-1
DESCRIPTION OF PROJECT LAND
A 2.8022 acre tract of land situated in the ▇▇▇▇ ▇▇▇▇ Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to ▇▇▇▇▇ Hospitals Limited by deed recorded in Volume 98006, Page ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and part of a 8.626 acre tract conveyed to
▇▇▇▇▇ Group II Limited Partnership by deed recorded in Volume 91086, Page ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and being situated in the City of Dallas,
Dallas County, Texas and being more particularly described as follows:
BEGINNING at a 1/2" iron rod with yellow plastic cap stamped "RLG" set in the
east right-of-way line of ▇▇▇▇▇▇ Drive (56.00 feet wide), said point being South
00(degree)18'49" East a distance of 224.97 feet from a chisel ▇▇▇▇ found at the
northwest corner of said ▇▇▇▇▇ Hospitals Limited tract, said chisel ▇▇▇▇ being
in the center line of a City of Dallas Trafficway Easement recorded in Volume
91199, Page 1041 and Volume 91199, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
for Southern Boulevard;
THENCE North 89(degree)41'11" East for a distance of 469.40 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 00(degree)18'49" East for a distance of 267.67 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 89(degree)41'11" East for a distance of 151.76 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set in the west right-of-way line of
▇▇▇▇ Road (a variable right-of-way);
THENCE South 00(degree)01'01" East with the said westerly right-of-way line of
▇▇▇▇ Road for a distance of 54.00 feet to a 1/2" iron rod with yellow plastic
cap stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 430.43 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 00(degree)18'49" West for a distance of 174.58 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 63.78 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 00(degree)18'49" West for a distance of 30.51 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 126.66 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set on the said east right-of-way line
of ▇▇▇▇▇▇ Drive;
THENCE North 00(degree)18'49" West with the said east right-of-way line of
▇▇▇▇▇▇ Drive for a distance of 116.58 feet to the POINT OF BEGINNING and
containing 122,066 square feet or 2.8022 acres of land more or less.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
DESCRIPTION OF COMPLEX LAND
A 8.0323 acre tract of land situated in the ▇▇▇▇ ▇▇▇▇ Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to ▇▇▇▇▇ Hospitals Limited by deed recorded in Volume 98006, Page ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and part of a 8.626 acre tract conveyed to
▇▇▇▇▇ Group II Limited Partnership by deed recorded in Volume 91086, Page ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and being situated in the City of Dallas,
Dallas County, Texas, more particularly described as follows:
BEGINNING at a chisel ▇▇▇▇ found in east right-of-way line of ▇▇▇▇▇▇ Drive
(56.00 feet wide), said chisel ▇▇▇▇ being the northwest corner of said tract
conveyed to ▇▇▇▇▇ Hospitals Limited, said chisel ▇▇▇▇ being the center line of a
City of Dallas Trafficway Easement recorded in Volume 91199, Page 1041 and in
Volume 91199, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ for Southern
Boulevard, said chisel ▇▇▇▇ also being in a Boundary Line Agreement recorded in
Volume 86212, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇;
THENCE North 89(degree)14'45" East with the north line of said tract conveyed to
▇▇▇▇▇ Hospital Limited and along said Boundary Line Agreement for a distance of
360.43 feet to a chisel ▇▇▇▇ found for an angle point;
THENCE South 89(degree)59'31" East with the said north line of said tract
conveyed to ▇▇▇▇▇ Hospital Limited and along a Boundary Line Agreement recorded
in Volume 80147, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ for a distance of
263.30 feet to a 3 1/4" brass disk set in the west right-of-way line of ▇▇▇▇
Road (a variable right-of-way) from which a 5/8" iron rod found bears South
00(degree)01'01" East a distance of 0.36 feet, said disk being the northeast
corner of said tract conveyed to ▇▇▇▇▇ Hospitals Limited;
THENCE South 00(degree)01'01" East with the said west right-of-way line of ▇▇▇▇
Road for a distance of 547.94 feet to a 1/2" iron rod with yellow plastic cap
stamped "RLG" set for corner;
THENCE South 89(degree)41' 11" West for a distance of 430.43 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 00(degree)18'49" East for a distance of 45.60 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 89(degree)41' 11" West for a distance of 190.44 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set in the said east right-of-way line
of ▇▇▇▇▇▇ Drive;
THENCE North 00(degree)18'49" West with the said east right-of-way line of
▇▇▇▇▇▇ Drive for a distance of 592.24 feet to the POINT OF BEGINNING and
containing 349,888 square feet or 8.0323 acres of land more or less.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
DESCRIPTION OF GARAGE LAND
A 3.2420 acre tract of land situated in the ▇▇▇▇ ▇▇▇▇ Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to ▇▇▇▇▇ Hospitals Limited by deed recorded in Volume 98006, Page ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and being situated in the City of Dallas,
Dallas County, Texas, more particularly described as follows:
BEGINNING at a chisel ▇▇▇▇ found at the northwest corner of said tract conveyed
to ▇▇▇▇▇ Hospitals Limited, said chisel ▇▇▇▇ being the center line of a City of
Dallas Trafficway Easement recorded in Volume 91199, Page 1041 and Volume 91199,
Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ for Southern Boulevard, said
chisel ▇▇▇▇ also being located in a Boundary Line Agreement recorded in Volume
86212, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇:
THENCE North 89(degree)14'45" East with the north line of said tract conveyed to
▇▇▇▇▇ Hospitals Limited and along said Boundary Line Agreement for a distance of
360.43 feet to a chisel ▇▇▇▇ found for an angle point;
THENCE South 89(degree)59'31" East continuing with the north line of said tract
conveyed to ▇▇▇▇▇ Hospitals Limited and along a Boundary Line Agreement recorded
in Volume 80147, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ for a distance of
263.30 feet to a 3 1/4" brass disk set for the northeast corner of said tract
conveyed to ▇▇▇▇▇ Hospitals Limited from which a 5/8" iron rod found bears South
00(degree)01'01" East a distance of 0.36 feet, said disk being in the west
right-of-way line of ▇▇▇▇ Road (a variable right-of-way);
THENCE South 00(degree)01'01" East with the said west right-of-way line of ▇▇▇▇
Road for a distance of 226.27 feet to a 1/2" iron rod with yellow plastic cap
stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 622.54 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner in the east
right-of-way line of said ▇▇▇▇▇▇ Drive;
THENCE North 00(degree)18'49" West with the said east right-of-way line of
▇▇▇▇▇▇ Drive for a distance of 224.97 feet to the POINT OF BEGINNING and
containing 141,220 square feet or 3.2420 acres of land more or less.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
DEPICTION OF PROJECT PLAZA, TOWER I GRADE LEVEL ENTRANCE,
LOADING DOCK AND COMPLEX COMMON AREAS
[SEE ATTACHED]
A-4-1
--------------------------------------------------------------------------------
Galleria North
[GRAPHIC OF SITE PLAN]
Depiction of Project Plaza, Tower I
Grade Level Entrance, Loading Dock and
Complex Common Areas Exhibit A-4
--------------------------------------------------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇ SIGN LAND
A 525 square foot tract of land situated in the ▇▇▇▇ ▇▇▇▇ Survey, Abstract No.
1584, in City of Dallas, Block No. 7005, said tract being all of that land
described as Parcel Number One in deed to ▇▇▇▇▇▇ Joint Venture as recorded in
Volume 95027, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and being situated
in the City of Dallas, Dallas County, Texas and being more particularly
described as follows:
BEGINNING at a chisel ▇▇▇▇ set for corner at the intersection of the easterly
right-of-way line of Dallas North Tollway (a variable width right-of-way) with
the north line of a 9.5 foot trafficway easement as recorded in Volume 91199,
Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇;
THENCE North 00(degree)11'43" West along the east line of said Dallas North
Tollway for a distance of 15.00 feet to a chisel ▇▇▇▇ set for corner;
THENCE North 89(degree)54'10" East, departing the east line of said Dallas North
Tollway, for a distance of 35.00 feet to a 1/2" iron rod with yellow plastic cap
stamped "RLG" set for corner;
THENCE South 00(degree)11'43" East for a distance of 15.00 feet to 1/2" iron rod
with yellow plastic cap stamped "RLG" set for corner in the north line of said
9.5 foot trafficway easement;
THENCE South 89(degree)54'10" West along the north line of said 9.5 foot
trafficway easement for a distance of 35.00 feet to the POINT OF BEGINNING and
containing 525 square feet or 0.0121 acres, more or less.
▇-▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
[▇▇▇ ▇▇▇▇▇▇▇▇]
▇-▇
[GRAPHIC OF COMMUNICATIONS AREA]
Communication Area Exhibit B
--------------------------------------------------------------------------------
C-1-2
EXHIBIT ▇-▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ will provide and install in the Initial Leased Premises the
improvements described in this Exhibit C-1 (collectively the "Base Building
Improvements") as required by the provisions of this Lease (the cost of which
shall be included in Project Costs). As used in this Exhibit C-1, the term
"Building Standard" means materials of the type, quality, and quantity described
or depicted in the Building Plans and Specifications defined in Section 11.4 of
the Lease), or comparable substitutes selected by Landlord.
1. Building Standard 2' X 2' acoustical ceiling tile installed on exposed
grid, to be installed at Building Standard height as required according to
the Bid Documents.
2. Building Standard heating, ventilation and air conditioning systems
installed in substantial accordance with the Building Plans and
Specifications including one draw-through-type air handling unit in the
air handling room on each floor, with primary distribution loop and
perimeter system installed the perimeter of the Building as necessary to
provide Building Standard HVAC service. The Tenant's air conditioning will
be carried (at Tenant's cost) to each zone by a duct system which is
connected to Building Standard slot diffusers at the perimeter and 2' X 4'
light troffer diffusers at interior zones to satisfy Building Standard
layout design loads of a minimum 1 CFM/square foot of Usable Area. If
Tenant has auxiliary or after Building Operating Hours air conditioning or
chilled water needs or requires modification to the Building Standard
layout, these modifications/additions will be installed at Tenant's
expense.
3. Building Standard automatic fire sprinkler system throughout the Leased
Premises, not to exceed one (1) concealed type sprinkler head per one
hundred twenty-five (125) square feet of Usable Area and located so as to
accommodate Tenant's partition plan, provided Tenant uses only Building
Standard ceiling at Building Standard height of 9 feet. Sprinkler head
relocations required by Tenant due to (i) a delay in Tenant providing
partition plans or (ii) modifications by Tenant to Tenant's initial
partition plans, shall be at Tenant's expense.
4. Exit lights, fire alarms, and smoke detectors shall be installed during
the construction of the Base Building by Landlord to comply with Legal
Requirements. Additional fire alarms or smoke detectors are not normally
required. Should Tenant's Bid Documents dictate the need for additional
devices, these will be installed at Tenant's expense. Landlord will
furnish and install the Building Standard fire protective alarm and voice
communications system (including speakers) for an open-floor plan in
compliance with Legal Requirements, which alarm and voice communications
system will include provision for Tenant installation of additional
speakers at Tenant's cost, if required by layout, throughout the floor.
Page 2 Missing
5. Building Standard metal finish elevator doors to be either factory or
field painted (at Landlord's option) in substantial accordance with the
Building Plans and Specifications. Elevator frames and jambs will be
constructed in substantial accordance with the Building Plans and
Specifications.
C-1-1
6. Building Standard passenger and freight elevators of sufficient quantity,
speed, performance and finishes to provide passenger and freight elevator
service.
7. Access at the core to domestic cold water, waste and vent systems.
Landlord will provide one (1) sanitary sewer and vent connection per floor
in the core area, each in substantial accordance with the Building Plans
and Specifications.
8. Exterior Building wall to be installed in substantial accordance with the
Building Plans and Specifications and weather-tight (except at exterior
construction hoisting and trash chute locations, which will be enclosed
but not necessarily weather-tight) after commencement of construction of
Tenant Improvements in the Leased Premises.
9. Plaza and/or lobby level of the Building to be substantially completed in
substantial accordance with the Building Plans and Specifications.
10. One (1) Building Standard drinking fountain per floor.
11. Building Standard ladies' and men's toilets to be provided in substantial
accordance with the Building Plans and Specifications, including Building
Standard accessories.
12. Building Standard janitorial closets (if required separate from mechanical
rooms on each floor) constructed in substantial accordance with the
Building Plans and Specifications.
13. Building Standard telephone closets and telephone boards will be installed
one each per floor located at the core of the Building and will be
finished in sheetrock.
14. Basement levels (if applicable ) to be substantially completed in
substantial accordance with the Building Plans and Specifications. Pump
rooms, transformer vaults, emergency generator, other mechanical and
electrical rooms, and the Loading Dock to be substantially completed in
substantial accordance with Building Plans and Specifications.
15. Mechanical, electrical, plumbing and other Base Building systems serving
the Leased Premises to be substantially completed in substantial
accordance with the Building Plans and Specifications.
16. Building Standard stairwell pressurization (if required), fresh air
make-up and toilet exhaust requirements are to be substantially completed
in substantial accordance with the Building Plans and Specifications.
C-1-2
EXHIBIT C-2
MECHANICAL, ELECTRICAL AND PLUMBING DESIGN CRITERIA
As of the Effective Date, the mechanical, electrical and plumbing design
criteria for the Base Building are contained in the portions of the Preliminary
Building Plans and Specifications described below. Upon completion of the Final
Bid Specifications, as described in Section 1.2(d) of the Lease, the mechanical,
electrical and plumbing design criteria set forth therein shall automatically
supercede and replace the mechanical, electrical and plumbing design criteria
set forth in said portions of the Preliminary Building Plans and Specifications.
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DATE OF LAST
SHEET NO. DRAWING TITLE PREPARED BY DRAWING REVISION
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ME1.100 MEP SITE PLAN ccrd Partners 17 APRIL 1998 N/A
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MEP1.101 MEP ROOF PLAN ccrd Partners 17 APRIL 1998 N/A
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MEP1.102 MEP PENTHOUSE PLAN ccrd Partners 17 APRIL 1998 N/A
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M2.100 BASEMENT FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
AREA A - HVAC
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M2.101 GROUND FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
AREA A- HVAC
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M2.102 BASEMENT FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
AREA B - HVAC
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M2.103 SECOND FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
AREA B - HVAC
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M2.105 TYPICAL FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(4 THRU 14) HVAC
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M2.106 15TH FLOOR PLAN HVAC ccrd Partners 17 APRIL 1998 N/A
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M2.107 16TH FLOOR PLAN HVAC ccrd Partners 17 APRIL 1998 N/A
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M2.108 SHEET TITLE ccrd Partners 17 APRIL 1998 N/A
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M2.109 BASEMENT PARTIAL PLAN ccrd Partners 17 APRIL 1998 N/A
HVAC CENTRAL PLANT
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M4.102 HVAC DUCT RISERS ccrd Partners 17 APRIL 1998 N/A
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M5.101 ENLARGED FAN ROOMS HVAC ccrd Partners 17 APRIL 1998 N/A
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M6.101 HVAC SCHEDULES ccrd Partners 17 APRIL 1998 N/A
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E2.100 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇/▇
(▇▇▇▇ ▇) - ELECT
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C-2-1
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DATE OF LAST
SHEET NO. DRAWING TITLE PREPARED BY DRAWING REVISION
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E2.101 GROUND FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(AREA A) - ELECT.
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E2.102 BASEMENT & GROUND PLANS ccrd Partners 17 APRIL 1998 N/A
(AREA B) ELECT.
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E2.103 SECOND FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(AREA A) - ELECT.
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E2.104 THIRD FLOOR PLAN - ELECT ccrd Partners 17 APRIL 1998 N/A
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E2.105 TYPICAL FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(4TH-14TH) - ELECTRICAL
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E2.106 FIFTEENTH FLOOR PLAN - ccrd Partners 17 APRIL 1998 N/A
ELECTRICAL
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E2.107 SIXTEENTH FLOOR PLAN - ccrd Partners 17 APRIL 1998 N/A
ELECTRICAL
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E2.108 SECOND FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(AREA B) - ELECT.
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E3.101 SCHEDULE SHEET ccrd Partners 17 APRIL 1998 N/A
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E4.101 ELECTRICAL RISER ccrd Partners 17 APRIL 1998 N/A
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E4.102 ELECTRICAL RISER ccrd Partners 17 APRIL 1998 N/A
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E5.101 ELECTRICAL ROOMS ccrd Partners I7 APRIL 1998 N/A
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E5.102 ELECTRICAL DETAILS ccrd Partners 17 APRIL 1998 N/A
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P2.106 FIFTEENTH FLOOR PLAN - ccrd Partners 17 APRIL 1998 N/A
PLUMBING
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P2.107 SIXTEENTH FLOOR PLAN - ccrd Partners 17 APRIL 1998 N/A
PLUMBING
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ME1.201 MEP ROOF PLAN ccrd Partners 17 APRIL 1998 N/A
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ME1.202 MEP ROOF PLAN ccrd Partners 17 APRIL 1998 N/A
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M2.201 GROUND FLOOR PLAN - HVAC ccrd Partners 17 APRIL 1998 N/A
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M2.202 SECOND FLOOR PLAN - HVAC ccrd Partners 17 APRIL 1998 N/A
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▇▇.▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (▇-▇▇) - ▇▇▇▇ ccrd Partners 17 APRIL 1998 N/A
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M2.204 13TH FLOOR PLAN - HVAC ccrd Partners 17 APRIL 1998 N/A
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C-2-2
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DATE OF LAST
SHEET NO. DRAWING TITLE PREPARED BY DRAWING REVISION
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M3.101 CHILLED AND CONDENSER WATER ccrd Partners 17 APRIL 1998 N/A
FLOW DIAGRAM
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M5.201 ENLARGED FAN ROOMS - HVAC ccrd Partners 17 APRIL 1998 N/A
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M6.201 HVAC SCHEDULES ccrd Partners 17 APRIL 1998 N/A
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E2.201 GROUND FLOOR PLAN - ELECTRICAL ccrd Partners 17 APRIL 1998 N/A
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E2.202 SECOND FLOOR PLAN - ELECTRICAL ccrd Partners 17 APRIL 1998 N/A
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E2.203 TYPICAL FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(3RD-12TH) - ELECT.
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E2.204 THIRTEENTH FLOOR PLAN - ccrd Partners 17 APRIL 1998 N/A
ELECTRICAL
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E3.201 SCHEDULE SHEET ccrd Partners 17 APRIL 1998 N/A
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E4.201 ELECT. RISER DIAGRAM ccrd Partners 17 APRIL 1998 N/A
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E5.201 ELECTRICAL ROOMS ccrd Partners 17 APRIL 1998 N/A
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E5.202 DETAIL SHEET ccrd Partners 17 APRIL 1998 N/A
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▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
CONSTRUCTION OF BUILDING, BASE BUILDING IMPROVEMENTS
AND TENANT IMPROVEMENTS
Part I - Schedule of Important Dates
Landlord and Tenant agree to comply with the following schedule:
TIME FRAME ACTION REQUIRED
A. Building Plans and Specifications
1. Effective Date. Landlord and Tenant approved the
Preliminary Building Plans and
Specifications.
2. On or before 20 days after Landlord will advise Tenant of the
the General Contractor so General Contractor's best estimate (or
notifies Landlord. Landlord's best estimate if prior to
the date of the selection of the
General Contractor), which estimate
shall not be binding on Landlord or
the General Contractor, of the number
of days of Tenant Delay and any
associated cost increases caused by
any change(s) to the Preliminary
Building Plans and Specifications
requested by Tenant.
3. Within 5 days of receiving Tenant must notify Landlord of its
Landlord's notice above. acceptance or rejection of the
change. If Tenant does not respond in
the 5-day period, such changes shall
not be made.
B. Construction Schedules
On or before 60 days after Landlord shall cause to be delivered
construction commencement. the Building Construction Schedule to
Tenant.
C. Tenant Space Plan.
1. On or before July 1, 1998. Tenant shall submit Tenant's Space
Plans to Landlord.
2. On or before 15 Business Days Landlord shall either approve or
after receipt of Space Plans. comment on the Space Plans, which
shall, in all events, be subject to
the provisions of Section 5.2(b) of
the Lease. Tenant's architect shall
incorporate Landlord's revisions
during the preparation of Tenant's Bid
Documents.
D-1-1
TIME FRAME ACTION REQUIRED
D. Information on Building
On or before 10 days after At Tenant's request, Landlord shall
written request from Tenant. furnish to Tenant the available
information about the Building that is
reasonably related to the design and
construction of the Tenant
Improvements including, but not
limited to, plans, specifications,
drawings, samples, and other
information.
E. Punch List Completion
As soon as possible, but in Landlord shall, subject to the
any event on or before 90 provisions of Paragraph 10 below,
days after the applicable complete any punch-list items
Notice of Substantial identified in any Punch List (defined
Completion (defined below in below in Paragraph 10) and attached to
Paragraph 10) has been any Notice of Substantial Completion,
confirmed (or deemed except for Delay Items.
confirmed) by Landlord and
Tenant.
F. Option to Reduce Building NRA
On or before August 1, 1998. Tenant shall have the right, pursuant
to the provisions of Section 1.3(c) of
the Lease, to reduce, on a full floor
basis only, the Net Rentable Area to
be contained within the Initial Leased
Premises (and consequently the
Building) to no less than 300,000
square feet. Tenant's notice
exercising such right must specify the
reduced number of square feet of Net
Rentable Area which Tenant desires to
be contained within the Initial Leased
Premises.
Landlord and Tenant acknowledge that the schedule set forth above is
intended only as a summary of the provisions of the Lease and the provisions of
Part II of this Exhibit D-1; therefore, to the extent there are any conflicts
between the provisions of the Lease and such schedule, the provisions of the
Lease or Part II of this Exhibit D-1, as applicable, shall control.
D-1-2
Part II - Tenant Improvements Construction
Landlord and Tenant agree to comply with the following schedule
relating to the preparation of the Space Plans and the Bid Documents for the
construction of the Tenant Improvements:
A. On or before July 1, 1998. Tenant shall submit to Landlord
preliminary plans and specifications
(the "Space Plans") providing a
preliminary, conceptual layout and
description of the Tenant
Improvements, and which shall, in all
events, be subject to the provisions
of Section 5.2(b) of the Lease.
B. On or before 15 Business Days Landlord shall either (a) approve the
from initial submission of the Space Plans by written notice to
Space Plans Tenant, or (b) deliver to Tenant a
list of any changes required by
Landlord and the specific reasons
therefor. If Landlord does not
respond in the 15 Business Day
period, the Space Plans shall be
deemed approved by Landlord. If
changes are required to the Space
Plans, Tenant shall cause its
architects and engineers, at Tenant's
cost and expense, to make the
required changes.
C. On or before September 1, 1998. Tenant will submit for Landlord's
review and approval preliminary plans
and specifications for floors 3
through 14.
D. On or before November 1, 1998. Tenant will submit for Landlord's
review and approval preliminary plans
and specifications for floors 1, 2,
15 and 16. Additionally, Tenant will
submit to Landlord for Landlord's
review and approval final plans and
specifications ("Bid Documents") for
floors 3 through 14, in sufficient
detail to obtain competitive bids and
a building permit for, and to permit
actual construction of, the Tenant
Improvements including any and all
architectural, millwork, structural,
(and with prior coordination with
Landlord's engineer) electrical, HVAC
and plumbing work to be performed.
Additionally, the Bid Documents shall
contain the warranties and covenants
Tenant will require from the Tenant
Contractor (defined below in
Paragraph 7) as more particularly
described in Paragraph 11 below,
which warranties and covenants shall
be assigned by Landlord to Tenant
D-1-3
(without representation or warranty
of any kind). Landlord shall not be
obligated to, and does not, make any
warranties and covenants to Tenant
with respect to the Tenant
Improvements, nor shall Landlord be
responsible for any of the warranties
and covenants from the Tenant
Contractor to Tenant; however
Landlord shall assist Tenant in
enforcing such warranties and
covenants from the Tenant Contractor
at Tenant's cost and expense and
Tenant shall reimburse Landlord for
such costs. The Bid Documents shall,
in all events, be subject to the
provisions of Section 5.2(b) of the
Lease.
E. On or before January 1, 1999 Tenant will submit to Landlord Bid
Documents for floors 1, 2, 15 and 16
in accordance with the criteria set
forth in Item D above (and all of the
provisions in Item D above shall be
applicable thereto).
F. On or before 15 Business Days Landlord shall submit to Tenant
from the date of the initial Landlord's specific comments and
submission and on or before 10 required changes on the Bid
Business Days after any Documents. If Landlord fails to
subsequent submission respond in the 15 or 10 Business Day
period, as applicable, Landlord shall
be deemed to have approved the Bid
Documents last submitted.
G. On or before 10 Business Days Tenant shall submit the revised Bid
after receiving Landlord's Documents to Landlord which revisions
comments to the Bid Documents shall be made by Tenant's architects
(if any) and engineers, at Tenant's cost and
expense (subject to Section 5.2(b) of
the Lease). These documents will be
stamped and labeled as "Issued for
Pricing."
H. On or before 35 Business Days Landlord will submit the Bid
after the occurrence of Item G Documents to contractors for pricing
and to all applicable jurisdictional
authorities for initial review, and
Landlord will use its good-faith
efforts to obtain all jurisdictional
authorities' comments and all
contractors' pricing.
I. On or before 10 Business Days Landlord will present contractors'
after Landlord's receipt of pricing and jurisdictional
the comments and pricing authorities' comments to Tenant.
described in Item H
D-1-4
J. On or before 20 Business Days Tenant will resubmit to Landlord
after the occurrence of Item I revised Bid Documents which shall
again be subject to Landlord's
approval as provided above, and which
shall incorporate any changes
necessary to obtain a building permit
and to achieve any cost savings or
other changes Tenant may desire, if
such changes are desired by Tenant,
subject, however, to Landlord's
approval as aforesaid. These
documents will be stamped or labeled
as "Issued for Construction" (the
date this occurs hereinafter the "Bid
Document Date").
K. On or before 5 Business Days Landlord will resubmit the revised
after the occurrence of Item J Bid Documents to all applicable
jurisdictional authorities for final
review (and will assist Tenant in
obtaining necessary permits and
approvals), and will resubmit Bid
Documents to the Tenant Contractor
for a revised final price.
L. On or before 15 Business Days Landlord will use its good faith
after the occurrence of Item K efforts to obtain the Tenant
Contractor's revised pricing.
M. On or before 7 Business Days The Construction Contract (defined
after the occurrence of Item L below in Paragraph 9) shall be
and Landlord's receipt of executed by the parties thereto.
final approval from the
jurisdictional authorities
Any failure by Tenant to comply with the foregoing schedule to the
extent not caused by Landlord's failure to comply with the foregoing schedule
shall result in a Tenant Delay (but only to the extent Landlord is actually
delayed in completing any portion of the Base Building or the Base Building
Improvements) and/or a Tenant Improvement Delay (but only to the extent there is
an actual delay in completion of the Tenant Improvements).
Additionally, Landlord and Tenant agree to comply with the following
provisions relating to the construction of the Tenant Improvements:
1. Design. Except as provided to the contrary in Section 5.2
of the Lease, all plans and specifications relating to the Tenant
Improvements shall be prepared by architects and engineers selected and
employed by Tenant, subject to Landlord's reasonable approval. Tenant's
architect and engineer shall work and coordinate with ccrd Partners
(Landlord's mechanical, electrical and plumbing engineer) during the
preparation of such plans and specifications. All structural changes to
the Base Building must be designed by ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇, Inc. (the
Base Building engineer). Tenant's architect shall be responsible for the
review and coordination of all of the Tenant Improvement Bid Documents.
Tenant shall pay the cost of all architectural and engineering fees for
D-1-5
the Tenant Improvement work incurred by Landlord in making changes to the
Base Building to accommodate Tenant Improvements. All such design costs to
be paid by Tenant to Landlord shall be paid by Tenant within twenty (20)
days after Tenant's receipt of at invoice therefor from Landlord. Tenant
may employ, at Tenant's cost and expense, other consultants of its
selection to assist with the design and construction of the Tenant
Improvements. Tenant's architects, engineers and other consultants shall
be afforded reasonable access to all work-in-progress in the Building or
the Initial Leased Premises provided such architect's, engineers and
consultants do not interfere with the progress of the construction of the
Base Building, the Base Building Improvements or the Tenant Improvements
and comply with the reasonable rules and regulations of Landlord. Tenant
acknowledges that any interference by Tenant or its architects, engineers
or other consultants may result in a Tenant Delay or a Tenant Improvement
Delay, as applicable. Additionally, Tenant shall be responsible for the
actions and omissions of its consultants, employees, architects,
engineers, agents, subcontractors and contractors, including without
limitation, the costs of any repairs to the Tenant Improvements work or
the Complex which become necessary due to their activities within the
Initial Leased Premises or the Complex.
Within ten (10) days after any reasonable request in writing
by Tenant, or its architects, engineers or other consultants, Landlord
shall furnish any available plans, specifications, drawings, samples or
other materials or information about the Building that are reasonably
related to the design and construction of the Tenant Improvements.
2. Pricing. Landlord will use good faith efforts to obtain
preliminary pricing of any component or portion of the Tenant Improvements
work if requested by Tenant. If requested by Tenant, Landlord will pre-bid
(prior to completion of Bid Documents) any portion of the Tenant
Improvements work such as millwork that, in Tenant's or Landlord's
reasonable judgment, will expedite completion of such work so long as that
portion of the Bid Documents, millwork specifications and bid instructions
are complete.
3. Permits. Assuming the Bid Documents are sufficient to allow
Landlord to do so, Landlord shall, or shall direct Tenant Contractor to,
obtain a building permit, an occupancy permit and any other permits or
approvals necessary for Tenant Improvements work. Landlord shall not be
responsible for any delays associated with failure of Tenant or its
architects, engineers or others employed by Tenant to bring the Bid
Documents into compliance with all Legal Requirements, and a failure by
Tenant to so modify the Bid Documents so as to allow Landlord to obtain
such permits and approvals shall relieve Landlord of all obligations to
obtain such permits and approvals, and shall also constitute a Tenant
Delay or a Tenant Improvement Delay, as applicable. All Landlord's
out-of-pocket costs associated with the obtainment of any such permits and
approvals shall be Tenant's responsibility.
4. Bid Documents. Landlord will advise Tenant within fourteen
(14) days of receipt of Tenant's Bid Documents, if, in Landlord's
reasonable judgment, the plans and specifications are not sufficiently
complete to obtain competitive bids. In the event that the Bid Documents
are thus deemed not to be complete, Tenant will reissue complete Bid
Documents. It is recommended that the Bid Documents be submitted at least
twenty-one (21) days in advance of any due date to allow such review and
revisions to occur prior to such date.
D-1-6
5. Changes. Tenant agrees that if it makes any changes in the
work after the Bid Document Date, Tenant shall be responsible for any
increases in the cost thereof (or any delays resulting therefrom other
than a delay due solely to a change in Tenant's work made to accommodate
Base Building conditions that are other than as shown on the Building
Plans and Specifications). After completion of the Bid Documents, Tenant
may make changes in the Bid Documents only if Tenant signs a change order
requesting the change and agrees to accept responsibility for Tenant
Delays and Tenant Improvement Delays that may result, if any, and agrees
to pay additional costs, if any, and then only if Landlord approves the
change by signing the change order, which approval shall not be
unreasonably withheld. After completion of the Bid Documents, Landlord may
require changes in the Bid Documents or the Construction Contract only if
necessary to comply with Legal Requirements, and then only if Landlord
signs a change order requesting the change, and then only if Tenant
approves the change by signing the change order, which approval shall not
be unreasonably withheld. The terms "Bid Documents" and "Construction
Contract" shall be deemed to include only changes authorized by a change
order signed by Landlord and Tenant in accordance with this Paragraph 5.
6. Authorized Construction Representatives. Within five (5)
days of Landlord's request, Tenant shall furnish Landlord with a written
list of Tenant's authorized construction representatives for the Tenant
Improvements. Only the authorized construction representatives on that
list are authorized to (i) approve or change the Tenant Bid Documents,
(ii) sign any change order, receipt or other document on behalf of Tenant
related to the Tenant Improvements, or (iii) take any other action with
respect to the construction of the Tenant Improvements permitted to be
taken by Tenant hereunder. Tenant, from time to time, may change or add to
the list of authorized construction representatives by giving Landlord
written notice of the addition or change.
7. Employment of Contractors. Construction of the Tenant
Improvements shall be carried out by the Contractor selected by Landlord
and Tenant pursuant to this Exhibit D-1 ("Tenant Contractor"). Landlord
shall enter into the Construction Contract with the Tenant Contractor,
however, Landlord shall be obligated for payments due to the Tenant
Contractor under the Construction Contract only to the extent of the
Improvements Allowance. The Improvements Allowance shall be paid to the
Tenant Contractor in the manner provided in Section 2.5 of the Lease and
Tenant shall be obligated to pay Landlord as provided in Section 2.5 of
the Lease all amounts due to the Tenant Contractor in excess of the
Improvements Allowance.
8. Selection of Contractors. The Tenant Contractor under the
Construction Contract shall be selected by Tenant from a list of no less
than four (4) construction contractors mutually and reasonably agreed to
by Landlord and Tenant (which list will include the General Contractor)
based on bids received and other relevant factors; provided, however,
Landlord shall have the right to disapprove of any contractor (including
subcontractors) selected by Tenant if Landlord reasonably determines that
D-1-7
such contractor's proposed cost for items that are to be constructed at
Landlord's sole expense pursuant to Exhibit C-1 is excessive; and provided
further, subject to the provisions of Paragraph 9(d) below, Tenant shall
have the right to disapprove of any contractor (including subcontractors)
selected by Landlord if Tenant reasonably determines that such
contractor's proposed cost for items that are to be constructed at
Tenant's sole expense pursuant to this Lease is excessive. Tenant or its
authorized agent and Landlord will jointly be responsible for preparing
bid instructions, will receive and qualify all bids, and will determine
the responsiveness of all bids received. The bidder selected by Tenant and
reasonably approved by Landlord (which approval must be granted unless a
material change in circumstances relating to such bidder has occurred
since the prior approval) to construct the Tenant Improvements will be
from the approved list of general construction contractors.
Notwithstanding the foregoing, Tenant may elect to use the General
Contractor for the construction of the Tenant Improvements, in which case
the Tenant Improvements work will not be submitted for competitive bids as
provided above.
9. Construction Contract. Construction of the Tenant
Improvements shall be accomplished by Landlord in accordance with the
approved Bid Documents under the terms of a single construction contract
(the "Construction Contract"). The Construction Contract shall:
(a) Provide for a lump-sum price or a price equal to the
cost of the work plus a fee in either case not to exceed a
guaranteed maximum price which shall be the price bid by the Tenant
Contractor and all subcontractors selected by Landlord and Tenant
pursuant to Paragraph 8 above.
(b) Separately state and account for the costs and any
associated fee for installation or construction of those
improvements identified in the Lease as being (i) Tenant
Improvements (which shall be paid by Tenant but subject to
reimbursement through the Improvements Allowance), and (ii) Base
Building Improvements (the cost of which shall be included in
Project Costs).
(c) Require insurance coverage in amounts and types
mutually and reasonably acceptable to Landlord and Tenant.
(d) Provide that both Landlord and Tenant shall have the
right to approve the identity of any subcontractor (except that
Landlord will have the right to unilaterally choose subcontractors
so long as each such subcontractor is reasonably acceptable to
Tenant and Landlord pays the difference between the cost of such
subcontractor and the cost of the lowest responsible bidder
(previously approved by both Tenant and Landlord) otherwise
complying with pre-approved bid specifications that is not
disapproved by Landlord for good cause (such as change of
circumstances between a prior approval and subsequent disapproval).
D-1-8
(e) Provide for a schedule and sequence of construction
activities and completion reasonably acceptable to Tenant and
Landlord in accordance with the requirements set forth in Article V
of the Lease and so that the Tenant Improvements will be complete as
to each Major Portion prior to the Scheduled Completion Date for
such Major Portion (not taking into account extensions for Tenant
Delays, Tenant Improvement Delays and Force Majeure Delays);
provided that the Tenant Contractor must commence construction of
the Tenant Improvements on the instruction of Landlord.
(f) Provide for elevator operator costs to be paid by
Tenant under the Construction Contract to the extent the Tenant
Improvement work requires the use of an elevator operator.
(g) Otherwise be in a form mutually and reasonably
acceptable to Landlord and Tenant.
10. Tenant Improvements Completion Date. The Tenant
Improvements Completion Date (as defined in Section 11.4) shall be
determined in compliance with the following procedures and standards:
(a) When Landlord believes that the Tenant Improvements
in the applicable part of the Initial Leased Premises have been
substantially completed in substantial accordance with the Bid
Documents Landlord, Tenant, and Tenant's architect shall walk
through and inspect the Tenant Improvements in the applicable part
of the Initial Leased Premises. Within five (5) Business Days
thereafter, Tenant shall deliver to Landlord a discrepancy list (the
"Punch List") of the items of the Tenant Improvements work, if any,
which Tenant or Tenant's architect (each acting reasonably and in
good faith) deems incomplete, failing which Tenant shall be deemed
to have agreed that no incomplete items exist and therefore the
Tenant Improvements work has been completed and Landlord shall not
be required to complete any incomplete items which, in fact, may
exist.
(b) The Tenant Improvements in the applicable part of
the Initial Leased Premises shall be considered substantially
completed if they substantially conform to the Bid Documents and
such part of the Initial Leased Premises is capable of being
occupied by Tenant for the purposes specified in Section 1.4 of the
Lease, exclusive of Delay Items and items specified on the Punch
List that do not materially interfere with the conduct of Tenant's
business therefrom.
(c) When Landlord considers the Tenant Improvements work
to be substantially complete, it shall deliver to Tenant, for
Tenant's confirmation (which shall not be unreasonably withheld), a
notice thereof (the "Notice of Substantial Completion") which will
stipulate the items from the Punch List which remain incomplete.
Failure of Tenant to respond to the Notice of Substantial Completion
within three (3) Business Days after delivery to Tenant shall
constitute Tenant's confirmation thereof. Notwithstanding any
D-1-9
provisions above to the contrary, if the applicable part of the
Initial Leased Premises or any part thereof is used or occupied by
Tenant for the purposes specified in Section 1.4 of the Lease prior
to Tenant's confirmation of the Notice of Substantial Completion, it
is agreed that the Initial Leased Premises are accepted by Tenant
"as is" and Landlord shall have no obligation to complete any items
not listed in the Punch List and attached to the Notice of
Substantial Completion. Any dispute between Landlord and Tenant
relating to whether the Tenant Improvements in the applicable part
of the Initial Leased Premises are substantially complete, or
relating to what Punch List items or other work is required to
finally complete such construction in accordance with the approved
Bid Documents, shall be resolved by arbitration in accordance with
the procedures set forth in Article X of this. Lease.
(d) Landlord shall complete all Punch List items
identified in any Notice of Substantial Completion (except for Delay
Items) as soon as possible, but in any event within ninety (90) days
after the Notice of Substantial Completion has been confirmed (or
deemed confirmed) by Landlord and Tenant.
11. Warranty. Landlord will use its reasonable efforts to
cause the Construction Contract to include express warranties to the
effect that, for a period of at least one (1) year from Tenant
Improvements Completion Date, (i) the Tenant Improvements will be free
from latent defects in workmanship or material and will comply with the
Bid Documents and with all applicable building codes and other Legal
Requirements, and (ii) all equipment and materials included in the Tenant
Improvements will be new (unless otherwise specified in Tenant's Bid
Documents) and of good quality.
12. NO WARRANTIES. LANDLORD SHALL MAKE NO WARRANTIES, EXPRESS
OR IMPLIED, WITH RESPECT TO THE TENANT IMPROVEMENT WORK. ALL IMPLIED
WARRANTIES WITH RESPECT THERETO, INCLUDING BUT NOT LIMITED TO THOSE OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY
NEGATED AND WAIVED. WITHOUT LIMITING THE FOREGOING, LANDLORD SHALL NOT BE
RESPONSIBLE FOR FAILURE OF THE TENANT IMPROVEMENT WORK. LANDLORD WILL NOT
BE RESPONSIBLE FOR, OR HAVE CONTROL OR CHARGE OVER, THE ACTS OR OMISSIONS
OF TENANT'S CONTRACTORS, OR THEIR AGENTS OR EMPLOYEES. LANDLORD IS NOT
ACTING AS A CONTRACTOR AND IS NOT GUARANTEEING THE PERFORMANCE OF SUCH
WORK.
13. Time of the Essence. It is stipulated that time is of the
essence in connection with Tenant's and Landlord's compliance with the
terms of this Exhibit D-1. Landlord and Tenant shall use due diligence to
minimize any delay resulting from Delay Items.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
OUTSIDE CONTRACTORS
If pursuant to the provisions of the Lease and after the completion
of the installation of the Tenant Improvements Tenant is permitted to use a
contractor or contractors other than Landlord or a contractor pursuant to a
contract with Landlord (the "Outside Contractor") to install or modify any
portion of the Leasehold Improvements, such Outside Contractor shall be subject
to the provisions of this Exhibit D-2 and Tenant shall obtain the prior written
consent of Landlord (which consent will not be unreasonably withheld) as to the
qualifications of the Outside Contractor to be used by Tenant.
It shall be Tenant's responsibility to ensure that the Outside
Contractor shall (i) conduct its work in such a manner so as not to unreasonably
interfere with any other construction occurring on or in the Leased Premises,
the Project or the Complex; (ii) comply with such reasonable rules and
regulations applicable to all work being performed in the Project or the Complex
as may be promulgated from time to time by Landlord (or the party entitled to
promulgate such rules and regulations pursuant to the REA); (iii) maintain such
insurance and bonds in full force and effect as may be reasonably requested by
Landlord or as required by Legal Requirements; and (iv) be responsible for
reaching agreement with Landlord as to the terms and conditions for all
contractor items relating to conducting its work, including but not limited to
those matters involving hoisting, systems interfacing, use of temporary
utilities, contractor parking, storage of materials and access to the Leased
Premises. As a condition precedent to Landlord's approving the Outside
Contractor pursuant hereto, Tenant and the Outside Contractor shall deliver to
Landlord such assurances or instruments as Landlord may reasonably require to
evidence the Outside Contractor's compliance or agreement to comply with
provisions (i), (ii), (iii) and (iv) above. Landlord retains the right to make
periodic inspections to assure conformity of the work of the Outside Contractor
with the rules and regulations described in item (ii) above and with the plans
and specifications approved by Landlord.
Tenant shall indemnify and hold harmless Landlord or any of
Landlord's other contractors from and against any and all losses, damages, costs
(including costs of suits and attorneys' fees), liabilities, or causes of action
arising out of or relating to the work of the Outside Contractor, including but
not limited to mechanic's, materialman's or other liens or claims (and all costs
or expenses associated therewith) asserted, filed or arising out of any such
work (subject to the provisions of Section 5.2(f) of the Lease). All
materialman, contractors, artisans, mechanics, laborers and other parties
hereafter contracting with Tenant for the furnishing of any labor, services,
materials, supplies or equipment with respect to any portion of the Leased
Premises are hereby charged with notice that they must look solely to Tenant for
payment of same and Tenant's purchase orders, contracts and subcontracts in
connection therewith must clearly state this requirement. Without limiting the
generality of the foregoing, Tenant shall repair or cause to be repaired at its
expense all damage caused by the Outside Contractor, its subcontractors or their
employees. Tenant shall reimburse Landlord for any reasonable costs incurred by
Landlord to repair any damage caused by the Outside Contractor or any reasonable
costs incurred by Landlord in requiring the Outside Contractor's compliance with
the rules and regulations. Additionally, Tenant shall reimburse Landlord for the
costs Landlord may incur to have the base Project engineer review all
mechanical, electrical, plumbing and life safety systems installed by the
Outside Contractor.
D-2-1
Tenant shall, at Tenant's sole cost and expense, cause Tenant's
architect(s) and/or engineer(s) to prepare a report, in form and substance
reasonably acceptable to Landlord, for the benefit of Landlord, certifying to
the compliance of the work constructed by the Outside Contractor with the plans
and specifications approved by Landlord.
The Outside Contractor shall not perform and, upon the request of
Landlord, whether written or oral, the Outside Contractor shall cease to
perform, any activity that is disruptive to the conduct of business within the
Project or the Complex.
D-2-2
EXHIBIT E
FORM OF CALCULATION NOTICE
The calculations set forth below represent the Net Rentable Area and
Usable Area of floor __________ of the Building as of __________ and shall be
used to calculate the Net Rentable Area and Usable Area of the Initial Leased
Premises for purposes of Section 1.1(c) of the Lease Agreement between Landlord
and Tenant to which this Exhibit E is attached.
Applicable Floors(s) Net Rentable Area Useable Area
-------------------- ----------------- ------------
______________________ _____________________ _________________________
______________________ _____________________ _________________________
______________________ _____________________ _________________________
LANDLORD:
TEXAS CORPORATE PROPERTIES, L.P., a
Texas limited partnership
By: Texas Corporate Properties GP, LLC,
its general partner
By: ▇▇▇▇▇ Corporate Properties, LLC,
its sole member
By: ___________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
TENANT:
▇▇▇▇▇ HOSPITALS LIMITED,
a Texas limited partnership
By: ▇▇▇▇▇ HealthSystem Hospitals, Inc.,
a Delaware corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
GUARANTOR:
▇▇▇▇▇ HEALTHCARE CORPORATION,
a Nevada corporation
By: ______________________________
Name: ______________________________
Title: ______________________________
E-1
EXHIBIT F
FORM OF COMMENCEMENT DECLARATION
_________________________ _________________,199__
_________________________
_________________________
Gentlemen:
Please refer to that certain Office Lease Agreement (the "Lease")
dated effective as of May 14, 1998, by and between Texas Corporate Properties,
L.P., a Texas limited partnership, as landlord ("Landlord"), and the undersigned
▇▇▇▇▇ Hospitals Limited, a Texas limited partnership, as tenant ("Tenant"),
covering office space (the "Leased Premises") in the Building (as defined in the
Lease) located in Dallas County, Texas. Capitalized terms not defined herein
shall have the meaning given to such terms in the Lease. The undersigned hereby
certifies, acknowledged and represents the following to you, all as of the date
hereof:
1. The Rental Commencement Date for each Major Portion (or floor, if
applicable) of the Initial Leased Premises for all purposes under this Lease is
as follows:
Initial Leased Premises Rental Commencement Date
----------------------- ------------------------
Floor Group 1 Portion __________________________________
Floor Group 2 Portion __________________________________
Floor Group 3 Portion __________________________________
Floor Group 4 Portion __________________________________
[If applicable, floor [___]] __________________________________
2. The Lease has not been amended except as may be set forth at the
end of this letter.
3. As of the date hereof, Landlord's best estimate of total Project
Costs for the Project is $__________ per square foot of Net Rentable Area. All
payments of Rent shall be based upon such estimate until a final Project Costs
Declaration is executed and delivered by Landlord and Tenant.
[Final Commencement Declaration only:
4. The Commencement Date for all purposes under the Lease is
__________.]
Please sign in the space provided below to evidence your agreement
with the facts and requirements set forth above and your further agreement that
this certificate may be relied upon by Landlord and its lenders and partners, as
well as their respective successors and assigns.
F-1
Very truly yours,
TEXAS CORPORATE PROPERTIES, L.P.,
a Texas limited partnership
By: Texas Corporate Properties GP, LLC,
its general partner
By: ▇▇▇▇▇ Corporate Properties, LLC,
its sole member
By: ___________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
AGREED AND ACCEPTED
this _____ day of _________________, 199__
▇▇▇▇▇ HOSPITALS LIMITED,
a Texas limited partnership
By: ▇▇▇▇▇ HealthSystem Hospitals, Inc.,
a Delaware corporation
By: ______________________________
Name: ______________________________
Title: ______________________________
▇▇▇▇▇ HEALTHCARE CORPORATION,
a Nevada corporation, as Guarantor
By: ______________________________
Name: ______________________________
Title: ______________________________
F-2
EXHIBIT G
SCHEDULE OF JANITORIAL SERVICES
I. OFFICE AREAS
A. Services performed nightly:
o Empty and clean (when necessary) all waste receptacles and
remove waste paper and rubbish to the designated area.
o Hand dust or wipe clean with damp or treated cloth all
horizontal surfaces, desks, chairs, files, telephones, picture
frames, etc. that are clear of materials.
o Clean and sanitize drinking fountains, follow with stainless
steel cleaner as needed taking care not to leave any oily
residue.
o Spot clean all windows and partition glass including lobby
glass.
o Vacuum all carpet areas. Broom sweep all oriental antique
rugs. (Do not pull vacuum cords around corners.) Edges should
either be swept or vacuumed with appropriate edge cleaning
tool, as required.
o Remove all finger marks and smudges from all vertical surfaces
taking care not to mar material finishes.
o Dust mop and spot clean all tiled areas.
o Damp wash and wipe dry all plastic or formica desk tops.
o Sweep internal stairways and vacuum, if carpeted. Dust
handrails and vertical surfaces.
B. Services performed as necessary or in the frequency stated:
o Wash waste receptacles. To be done if liquids might have
leaked into the receptacle through the plastic liner or in
other areas, as required. Plastic liners are used only in
areas with wet trash.
o Damp mop floors where spillage occurred or dirt tracked in.
o Machine buff all non-carpet floors - not less than monthly.
Strip and recoat as necessary.
o Spot clean carpet areas. Major carpet cleaning will be handled
outside this contract.
o Dust light fixtures - not less than annually.
G-1
o Vacuum/dust all perimeter slot diffusers on an annual basis.
o Clean all air vent grills.
o Wash window ▇▇▇▇▇.
o Dust fire extinguishers/fire extinguisher cabinets.
o Dust all doors.
II. RESTROOMS
A. Services performed nightly:
o Empty and clean (when necessary) all waste receptacles and
remove waste paper and rubbish to the designated area.
o Wash and disinfect all basins, urinals and bowls using
nonabrasive cleaners to remove stains and clean undersides of
rim on urinals and bowls. Wash both sides of toilet seats.
o Clean all mirrors, bright work and enameled surfaces.
o Spot clean all partitions, tile walls, doors and outside
surfaces of all dispensers and receptacles. Damp wipe all
lavatory tops and remove water spots from wall surfaces next
to dispensers/receptacles. Spot clean around light fixtures.
o Clean flushometers, piping and other metal. Do not leave oily
film on any metal finish.
o Fill toilet tissue, soap, towel and sanitary napkin
dispensers. Do not place any extra supplies on top of
dispenser or counter top.
o Sweep, wet mop and thoroughly rinse floor. Clean all corners
and edges to prevent dirt buildup. Do not leave standing water
on the floor.
o Dump at least one gallon of water down restroom floor drain
and wipe clean drain grill.
B. Services performed as necessary or in the frequency stated:
o Scrub all floors at least monthly - intent is to prevent
buildup of dirt in grout.
o Thoroughly wash all partitions at least monthly.
o Dust all walls at least quarterly.
o Wash all walls at least annually.
G-2
o Clean light fixtures at least annually.
o Clean air vent grills at least quarterly.
o Clean soap dispensers.
It is the intention to keep the restrooms thoroughly clean and not to use a
deodorant to kill odor. Disinfectants must be odorless. Abrasive cleaners or
products that may damage any surface are not permitted.
III. ELEVATORS
A. Services performed nightly:
o Dust light lenses, damp wipe, if necessary.
o Spot clean walls.
o Dust or damp wipe finish metal and floor buttons.
o Clean and polish all thresholds.
o Carpet floors; clean edges and vacuum.
o Tile or other floor in service cars; sweep, wash, dress and
buff.
o Spot-clean hall side of doors, frame and hall call button.
B. Services performed, as necessary:
o Dust ceiling.
o Shampoo carpet.
o Wash hall side of doors and frame.
IV. LOBBY
A. Services performed nightly:
o Sweep and heavy wash honed marble floor.
o Clean all edges and corners. Machine clean, as necessary.
o Clean glass doors, adjacent glass panels and glass top of
revolving doors.
o Clean and polish all transoms, metal doors, door frames, etc.
o Dust vases, vase stands and other horizontal surfaces.
G-3
o Empty all ash urns, clean and polish. Replace sand, if
necessary. Use sand stamp.
o Clean pay phones.
o Spot clean directory board and graphics.
o Clean top and sides of security desk.
o Spot clean all walls.
B. Services performed as necessary or in the frequency stated:
o Dust or wash marble walls.
o Clean all air diffusers/grills.
o Clean gold leaf niches.
o Clean/wash/shampoo mats.
V. COMMON AREA - MAILROOM AREA
A. Services performed nightly:
o Sweep/vacuum floor.
o Spot clean carpet as necessary.
o Spot clean walls - dust as necessary.
o Clean and sanitize drinking fountains, follow with stainless
steel cleaner as needed, taking care not to leave any oily
residue.
o Spot clean any windows and partition glass.
o Clean and polish any ash urns, use sand stamp, replace sand as
necessary.
B. Services performed as necessary or in the frequency stated:
o Shampoo carpet (less than 800 square feet).
o Dust light fixtures - not less than monthly.
o Dust/wash air vent grills.
o Dust all doors, apply oil to wood doors no less than annually.
G-4
VI. BUILDING STAIRWAYS AND LANDINGS
A. Services performed as necessary or in the frequency stated:
o Police for trash, remove gum daily.
o Sweep/spot mop not less than weekly.
o Dust handrails and other vertical members.
o Dust light fixtures - not less than quarterly.
o Dust/wash all vents and painted piping.
o Clean prints and marks from doors.
o Clean/wash transoms high and low.
VII. SERVICE HALL-FREIGHT ELEVATOR VESTIBULES
A. Services performed nightly:
o Sweep, then spot mop or wet mop nightly.
o Spray buff not less than weekly.
o Strip and recoat, as necessary.
o Clean/wash transoms high and low.
o Clean prints and marks from doors.
o Dust/wash all vents and painted piping.
o Dust light fixtures-not less than annually.
o Spot clean walls.
VIII. MANAGER'S OFFICE. STAGING AREA. JANITORIAL ROOMS
A. Services performed as necessary or in the frequency stated:
o Maintain all janitorial areas in a clean, neat and orderly
condition at all times.
o Maintain office and staging area in same fashion as tenant
office areas.
G-5
IX. LOADING DOCK
A. Services performed nightly:
o Place all trash in compactor.
o Sweep dock and dock area.
o Spot clean walls by dock office and service elevator.
o Clean glass, empty trash, sweep/clean floor in dock office.
o Clean and polish ash urn - replace sand as necessary.
B. Services performed as necessary or in the frequency stated:
o Steam and/or power wash all loading dock base, truck areas and
exterior (top and sides) of trash compactor - not less than
monthly.
o Steam and/or power wash all loading dock vertical walls - not
less than annually.
o Maintain floor surface in dock office.
X. RETAIL - No service required inside retail areas
XI. COURTYARD/SIDEWALK
A. Service performed nightly:
o Police for trash - all areas including planting beds and along
curb.
o Empty trash barrels.
o Straighten furniture.
o Remove gum.
B. Services performed as necessary or in the frequency stated:
o Steam and/or power wash granite pavers.
o Clean/wash fountains, chairs and trash receptacles.
XII. DAY SERVICE (Specific written job descriptions will be developed for each
day person's position. The tasks below are meant only to serve as
guidelines.)
1. At least twice daily check men's and women's washrooms for paper
stock replacement. Wipe down and clean all lavatory tops and
fixtures. Police restroom to prevent paper/trash on floor. Report to
Management Office any problems.
G-6
2. Vacuuming of elevator cabs will be performed at least three (3)
times daily. All smudges, fingerprints to be removed from metal
surfaces at same time vacuuming is done.
3. There will be a constant surveillance of the lobby, courtyard and
sidewalk areas to insure cleanliness. All sand urns will be sifted
at least three (3) times daily and sand stamped. Damp mop where
necessary all spills/water. Dust mop as required. Remove
fingerprints from door glass and metal surfaces at least three (3)
times daily. Clean trash from tree grates and planters.
4. The first floor exterior side of all retail glass will be maintained
as needed. Retail door glass will be spot cleaned at least once
daily.
5. The loading dock and service hallway will be policed for trash.
6. Perform all special cleaning needs of individual tenants as
authorized by the Property Manager.
7. Perform all specific duties as detailed in the day maid/day ▇▇▇▇▇▇
job description.
Upon completion of nightly duties, the floor supervisors will insure that
all offices have been cleaned and left in a neat and orderly condition, all
lights have been turned off and all areas properly secured. Supervisors will be
responsible for completing a Nightly Supervisor Checklist which details any
problems encountered during the course of cleaning either the tenant space or
public areas.
G-7
EXHIBIT H
FORM OF MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into effective as of
the 14th day of May, 1998, by and between Texas Corporate Properties, L.P., a
Texas limited partnership ("Landlord"), and ▇▇▇▇▇ Hospitals Limited, a Texas
limited partnership ("Tenant"), and HCP Land, L.P., a Texas limited partnership
("Ground Lessor"):
W I T N E S S E T H
WHEREAS, Landlord and Tenant have entered into a certain Office
Lease Agreement of even date herewith (the "Lease") whereby Landlord did lease
to Tenant, and Tenant did lease from Landlord, approximately 378,000 square feet
of office space (such office space, the "Premises") in the building commonly
referred to as Galleria North, Tower I (the "Building") located in Dallas, Texas
on the land described on Exhibit A attached hereto and made a part hereof (the
"Land");
WHEREAS, Landlord and Tenant desire to enter into and record this
Memorandum of Lease in order that third parties may have notice of Tenant's
interest and rights under the Lease, of the leasehold estate of Tenant and of
the Lease; and
WHEREAS, Landlord is the owner of a leasehold estate in the Land
pursuant to that certain Ground Lease of even date herewith, by and between
Landlord and Ground Lessor, which is to be recorded in the real property records
of Dallas County, Texas (the "Ground Lease"); and
WHEREAS, Ground Lessor desires to enter into and record this
Memorandum of Lease solely to confirm that the Ground Lease is subordinate to
the Lease and Tenant's rights thereunder.
NOW, THEREFORE, Landlord, in consideration of the rents and
covenants provided for in the Lease to be paid and performed by Tenant, does
hereby lease unto Tenant, and Tenant does hereby lease from Landlord, the
Premises in accordance with the terms and provisions of the Lease.
Specific reference is hereby made to the following provisions of the
Lease:
1. Pursuant to Section 1.2(a) of the Lease, Tenant shall have and
hold the Premises for a term of ten (10) years after the Commencement Date (as
that term is defined in the Lease), unless renewed and extended pursuant to the
provisions of Section 9.1 of the Lease.
2. Pursuant to Section 8.1 of the Lease, Tenant is restricted in its
ability to sublease the Premises or assign the Lease.
3. Pursuant to Exhibit D-2 of the Lease, Landlord and Tenant have
agreed that all materialmen, contractors, artisans, mechanics, laborers and
other parties hereafter contracting with Tenant for the furnishing of any labor,
services, materials, supplies or equipment with respect to any portion of the
H-1
Premises shall be notified, and they are hereby notified, that such work is not
being performed at Landlord's request, that such work shall not be deemed to be
for the immediate use and benefit of Landlord, that they must look solely to
Tenant for payment of same and that no mechanic's, materialman's, artisan's,
construction or other lien shall validly attach to the estate of Landlord by
reason of Landlord's consent to such work.
All terms, conditions, provisions and covenants of the Lease are
incorporated in this Memorandum of Lease by reference as though fully set forth
herein, and the Lease and this Memorandum of Lease shall be deemed to constitute
a single instrument or document. This Memorandum of Lease has been entered into
by Landlord and Tenant for purposes of recordation in the appropriate real
estate records in Dallas County, Texas to provide notice to third parties of the
Lease and nothing contained herein shall be deemed or construed to amend,
modify, change, alter, amplify, interpret or supersede any of the terms and
provisions of the Lease. In the event of a conflict between the terms of the
Lease and the terms of this Memorandum of Lease, the terms of the Lease shall
control.
Ground Lessor specifically confirms and agrees that its rights and
interest under the Ground Lease are inferior and subordinate to the Lease and
Tenant's rights and interests thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum
of Lease effective as of the date first above written.
LANDLORD:
TEXAS CORPORATE PROPERTIES, L.P.,
a Texas limited partnership
By: Texas Corporate Properties GP, LLC,
its general partner
By: ▇▇▇▇▇ Corporate Properties, LLC,
its sole member
By: ________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
H-2
TENANT:
▇▇▇▇▇ HOSPITALS LIMITED,
a Texas limited partnership
By: ▇▇▇▇▇ HealthSystem Hospitals, Inc.,
a Delaware corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
GROUND LESSOR:
HCP LAND, L.P.,
a Texas limited partnership
By: Hines BTS Partners Limited Partnership,
its general partner
By: Hines BTS GP LLC,
its general partner
By: ▇▇▇▇▇ Interests Limited Partnership,
its sole member
By: ▇▇▇▇▇ Holdings, Inc.,
its general partner
By: __________________________
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President
▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned, a notary public in and for the State of
Texas, on this day personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Chief Executive
Officer of ▇▇▇▇▇ Corporate Properties, LLC, as the sole member in Texas
Corporate Properties GP, LLC, as the general partner in Texas Corporate
Properties, L.P., and, [being known to me] [alternative: being proved to me on
the oath of _________________or through _____________________ (describe identity
card or other document of identification)], as the person whose name is
subscribed to the foregoing instrument, he acknowledged to me that he executed
the same for the purpose and consideration therein expressed and on behalf of
said limited liability companies and said limited partnership.
Given under my hand and seal of office this ___ day of May, A.D.,
1998.
__________________________________________
Notary Public in and for the State of Texas
Notary's Name Printed:
__________________________________________
My Commission Expires:
__________________________________________
THE STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned, a notary public in and for the State of
Texas, on this day personally appeared ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice
President of Hines Holding, Inc., the general partner in ▇▇▇▇▇ Interests Limited
Partnership, the sole member on Hines BTS GP LLC, the general partner in Hines
BTS Partners Limited Partnership, the general partner in HCP Land, L.P., and,
[being known to me] [alternative: being proved to me on the oath of
_________________ or through _________________________ (describe identity card
or other document of identification)], as the person whose name is subscribed to
the foregoing instrument, he acknowledged to me that he executed the same for
the purpose and consideration therein expressed and on behalf of said
corporation, limited liability companies and said limited partnerships.
Given under my hand and seal of office this _____ day of May, A.D.,
1998.
__________________________________________
Notary Public in and for the State of Texas
Notary's Name Printed:
__________________________________________
My Commission Expires:
__________________________________________
H-4
THE STATE OF __________ ss.
ss.
COUNTY OF _____________ ss.
BEFORE ME, the undersigned, a notary public in and for the State of
_____________, on this day personally appeared ___________, the
_____________________ of ▇▇▇▇▇ HealthSystem Hospitals, Inc., a Delaware
corporation, as the general partner in ▇▇▇▇▇ Hospitals Limited, a Texas limited
partnership, and, [being known to me] [alternative: being proved to me on the
oath of ______________ or through __________________________ (describe identity
card or other document of identification)], as the person whose name is
subscribed to the foregoing instrument, acknowledged to me that he/she executed
the same for the purpose and consideration therein expressed and on behalf of
said limited partnership and corporation.
Given under my hand and seal of office this _____ day of May, A.D.,
1998.
__________________________________________
Notary Public in and for the State of _____
Notary's Name Printed:
__________________________________________
My Commission Expires:
__________________________________________
Drafted by and when recorded return to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
H-5
EXHIBIT A TO MEMORANDUM OF LEASE
LAND
A 2.8022 acre tract of land situated in the ▇▇▇▇ ▇▇▇▇ Survey, Abstract No. 1584,
in City of Dallas, Block No. 7004, said tract being part of a 7.183 acre tract
conveyed to ▇▇▇▇▇ Hospitals Limited by deed recorded in Volume 98006, Page ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and part of a 8.626 acre tract conveyed to
Hines Group II Limited Partnership by deed recorded in Volume 91086, Page ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and being situated in the City of Dallas,
Dallas County, Texas and being more particularly described as follows:
BEGINNING at a 1/2" iron rod with yellow plastic cap stamped "RLG" set in the
east right-of-way line of ▇▇▇▇▇▇ Drive (56.00 feet wide), said point being South
00(degree)18'49" East a distance of 224.97 feet from a chisel ▇▇▇▇ found at the
northwest corner of said ▇▇▇▇▇ Hospitals Limited tract, said chisel ▇▇▇▇ being
in the center line of a City of Dallas Trafficway Easement recorded in Volume
91199, Page 1041 and Volume 91199, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
for Southern Boulevard;
THENCE North 89(degree)41'11" East for a distance of 469.40 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 00(degree)18'49" East for a distance of 267.67 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 89(degree)41'11" East for a distance of 151.76 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set in the west right-of-way line of
▇▇▇▇ Road (a variable right-of-way);
THENCE South 00(degree)01'01" East with the said westerly right-of-way line of
▇▇▇▇ Road for a distance of 54.00 feet to a 1/2" iron rod with yellow plastic
cap stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 430.43 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 00(degree)18'49" West for a distance of 174.58 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 63.78 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE North 00(degree)18'49" West for a distance of 30.51 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set for corner;
THENCE South 89(degree)41'11" West for a distance of 126.66 feet to a 1/2" iron
rod with yellow plastic cap stamped "RLG" set on the said east right-of-way line
of ▇▇▇▇▇▇ Drive;
THENCE North 00(degree)18'49" West with the said east right-of-way line of
▇▇▇▇▇▇ Drive for a distance of 116.58 feet to the POINT OF BEGINNING and
containing 122,066 square feet or 2.8022 acres of land more or less.
H-6
EXHIBIT I
BUILDING STANDARD IMPROVEMENTS
For purposes of Sections 2.4(a)(ix), 6.3 and 6.4 of the Lease, the
term "Building Standard Improvements" shall mean the following leasehold
improvements:
Partitions One (1) lineal foot of Building Standard type II
partition per twelve (12) square feet of Net
Rentable Area leased outside the core area in the
case of a full floor tenant and the Usable Area
for a tenant on a partial floor. All required
partitions will be 5/8" gypsum board, painted with
Building Standard colors to be provided by
Landlord.
Ceilings Fissured type mineral fiber acoustical ceiling
tile, 24" x 24" x 5/8" thick mechanically
suspended on a concealed grid throughout the
Leased Premises.
Lighting Fixtures One (1) 2' x 4' recessed 3 tube fluorescent
lighting fixture with anodized aluminum 18 cell
parabolic shaped louvers, including initial
▇▇▇▇▇▇▇, per one hundred (100) square feet of
Usable Area.
Duplex Electric Outlets One (1) duplex wall-mounted convenience outlet for
each one hundred twenty (120) square feet of
Usable Area.
Telephone Covering One (1) telephone wall outlet for each two hundred
ten (210) square feet of Usable Area.
Floor Covering Building Standard commercial grade carpeting
throughout the Leased Premises.
Doors One (1) full height, solid core door with a metal
frame and lever handle latch set hardware per
three hundred (300) square feet of Usable Area.
Light Switches One (1) single pole light switch for each three
hundred (300) square feet of Usable Area. Group
switching will be provided in open areas.
Window Coverings One inch (1") horizontal aluminum slat mini-blinds
for exterior windows throughout the Leased
Premises.
Fire Sprinkler Heads Ceiling mounted fire sprinkler heads throughout
the Leased Premises to conform with light hazard
occupancy fire protection system design criteria
up to one sprinkler per 125 square feet of Usable
Area.
I-1
EXHIBIT J
FORM OF GUARANTY
Section 1. Guaranty. For value received, and in order to induce
Texas Corporate Properties, L.P., a Texas limited partnership ("Landlord"), to
execute that certain Lease Agreement (described below) with ▇▇▇▇▇ Hospitals
Limited, a Texas limited partnership ("Tenant"), ▇▇▇▇▇ Healthcare Corporation, a
Nevada corporation ("Guarantor"), hereby absolutely and unconditionally
guarantees to Landlord and its successors or assigns (a) the full and punctual
payment when due (whether by acceleration or otherwise) of all sums (including,
without limitation, payment of rent, late charges, additional rent [however
termed or defined], court costs, reasonable attorneys' fees and any and all
other sums) due and owing or to become due and owing by Tenant under that
certain Office Lease Agreement dated May 14, 1998, entered into by and between
Landlord and Tenant covering approximately 378,000 square feet of Net Rentable
Area (as defined therein) in the office building located in Dallas County,
Texas, together with any and all extensions or renewals thereof and amendments
and modifications thereto (the "Lease") and (b) the full, prompt and faithful
performance of each and every obligation of Tenant under the Lease. As used in
this Lease Guaranty Agreement (this "Guaranty"), "Guaranteed Obligations" means
all obligations and indebtedness of Tenant guaranteed by Guarantor in this
Section 1.
Section 2. Term. The obligations of Guarantor as to the Guaranteed
Obligations shall continue in full force and effect against Guarantor until the
Guaranteed Obligations are paid and performed in full. This Guaranty covers any
and all of the Guaranteed Obligations, whether presently outstanding or arising
subsequent to the date hereof. This Guaranty is binding upon and enforceable
against Guarantor and the heirs, legal representatives, personal
representatives, executors, administrators, assigns and successors of Guarantor.
Section 3. Representations and Warranties of Guarantor. Guarantor
hereby represents and warrants to Landlord that:
(a) Guarantor has received, or will receive, direct or
indirect benefit from the making of this Guaranty;
(b) Guarantor is familiar with, and has independently reviewed
the books and records regarding, the financial condition of Tenant;
however, such Guarantor is not relying on such financial condition as an
inducement to enter into this Guaranty;
(c) neither Landlord nor any other party has made any
representation, warranty or statement to Guarantor in order to induce such
Guarantor to execute this Guaranty;
(d) as of the date hereof, and after giving effect to this
Guaranty and the contingent obligations evidenced hereby, Guarantor is,
and will be, solvent, and has and will have property and assets which,
fairly valued, exceed its, his or her obligations, liabilities and debts;
J-1
(e) as of the date hereof, Guarantor's net worth or
shareholder's equity (as applicable) is as reflected on the 1997 Annual
Report which was recently delivered to Landlord;
(f) this Guaranty has been duly executed and delivered by
Guarantor;
(g) neither this Guaranty nor the agreements contained herein
contravene or constitute a default or create or impose any lien, charge or
encumbrance under any agreement, instrument, indenture or similar
instrument to which the Guarantor is a party or by which his or her assets
are bound or any other requirement of law; and
(h) there are no actions, suits, or proceedings pending or
threatened against Guarantor in any court or before any federal, state,
municipal or other governmental department or commission, board, bureau,
agency or instrumentality which if adversely determined will affect any of
the transactions contemplated by this Guaranty.
Section 4. Waiver of Rights. Guarantor hereby waives (a) notice of
acceptance hereof (which acceptance is conclusively presumed by delivery to
Landlord); (b) grace, demand, presentment and protest with respect to the
Guaranteed Obligations or to any instrument, agreement or document evidencing or
creating same; (c) notice of grace, demand, presentment and protest; (d) notice
of non-payment or other defaults (except where such notices are required to be
given to Guarantor under the terms of the Lease), of intention to accelerate and
of acceleration of the Guaranteed Obligations; (e) notice of and/or any right to
consent or object to the assignment of any interest in the Lease or the
Guaranteed Obligations (except where such notices are required to be given to
Guarantor under the terms of the Lease); (f) notice of the renewal, extension,
amendment and/or modification of any of the terms and provisions of the Lease
(except where such notices are required to be given to Guarantor under the terms
of the Lease); (g) notice of the filing of suit and diligence by Landlord in
collection or enforcement of the Guaranteed Obligations; and (h) any other
notice regarding the Guaranteed Obligations. Guarantor specifically waives any
and all rights and remedies to which Guarantor may be or become entitled under
Chapter 34 of the Texas Business and Commerce Code, under Sections 17.001 and
34.005 of the Texas Civil Practice and Remedies Code and under Rule 31 of the
Texas Rules of Civil Procedure, and any and all other defenses available to
sureties or guarantors at law or in equity.
Section 5. Release of Parties Liable, Renewals, etc. Guarantor
agrees that Landlord may at any time, and from time to time, at Landlord's
discretion and with or without notice or consideration to or consent from any
party: (a) release any party liable on the Guaranteed Obligations, including,
without limitation, Tenant or any other guarantor; and (b) extend, renew,
rearrange, modify or amend any of the terms and provisions of the Lease, and any
of such actions may be taken without impairing or diminishing the obligations of
Guarantor hereunder; provided, however, except in connection with the exercise
by Tenant of any of its express rights or options under the Lease, which rights
and/or options may be exercised without the consent of Guarantor and without
impairing or diminishing the obligations of Guarantor hereunder, the Lease shall
not be extended, renewed, rearranged, modified or amended, so as to materially
increase the obligations of Guarantor hereunder, without the prior written
consent of Guarantor. Additionally, the liability of Guarantor shall not be
J-2
impaired, reduced or in any way affected by: (v) Landlord's failure, refusal, or
neglect to collect or enforce the Guaranteed Obligations, by way of, without
limitation, any indulgence, forbearance, compromise, settlement or waiver of
performance which may be extended to Tenant by Landlord or agreed upon by
Landlord and Tenant; (w) any termination of the Lease; (x) any sublease of the
space covered by the Lease or any assignment of the Lease by any means or to any
entity or person whatsoever regardless of whether Tenant thereafter continues to
be liable; (y) loss or subordination of any other guaranty, if any, or by the
existence of any indebtedness of Tenant to Landlord other than the Guaranteed
Obligations; or (z) the taking of any security or any other guaranty for the
Guaranteed Obligations in addition to the guaranty presently existing.
Section 6. Primary Liability of Guarantor. This Guaranty constitutes
a primary obligation of Guarantor. This is an absolute, unconditional,
irrevocable and continuing guaranty of payment and performance and not of
collection and is in no way conditioned upon any attempt to collect from Tenant
or upon any other event or contingency. Guarantor agrees that Landlord is not
required, as a condition to establishing Guarantor's liability hereunder, to
proceed against any person (including, without limitation, Tenant or any other
guarantor), and further agrees not to assert any defense (other than payment)
available to Tenant against Landlord with regard to the Guaranteed Obligations,
any defense based upon an election of remedies of any type, any defense based on
any duty of Landlord to disclose information of any type to Guarantor regarding
Tenant or the Guaranteed Obligations, and/or any claim that Guarantor may have
against Landlord by virtue of Landlord's failure to exercise any rights against
Tenant, however arising. Guarantor hereby expressly waives any right or claim to
force Landlord to proceed first against Tenant or any other guarantor as to any
of the Guaranteed Obligations or other obligations of Tenant, and agrees that no
delay or refusal of Landlord to exercise any right or privilege which Landlord
has or may have against Tenant, whether arising from any documents executed by
Tenant, any common law, applicable statute or otherwise, shall operate to impair
the liability of Guarantor hereunder. The obligations of Guarantor hereunder
shall not be reduced, impaired or in any way affected by: (a) receivership,
insolvency, bankruptcy or other proceedings affecting Tenant or any of Tenant's
assets; (b) receivership, insolvency, bankruptcy or other proceedings affecting
Guarantor or any of Guarantor's assets; (c) death, insanity or other disability
of Guarantor; (d) any allegation of fraud, usury, failure of consideration,
forgery or other defense, whether or not known to Landlord (even though
rendering all or any part of the Guaranteed Obligations void or unenforceable or
uncollectible as against Tenant or any other guarantor); or (e) the release or
discharge of Tenant from the Lease or any of the Guaranteed Obligations or any
other indebtedness of Tenant to Landlord or from the performance of any
obligation contained in the Lease or other instrument issued in connection with,
evidencing or securing any indebtedness guaranteed by this instrument, whether
occurring by reason of law or any other cause, whether similar or dissimilar to
the foregoing. This Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Guaranteed Obligations
is rescinded or must otherwise be returned by Landlord upon the insolvency,
bankruptcy or reorganization of Tenant or otherwise.
Landlord may at any time, without the consent of or notice to
Guarantor, without incurring responsibility to the undersigned, without
impairing or releasing the obligations of the undersigned, upon or without any
terms or conditions and in whole or in part: (w) change the manner, place or
terms of payment or change or extend the time of payment of, renew or alter any
liability of Tenant hereby guaranteed, or any liabilities incurred directly or
J-3
indirectly hereunder, and the Guaranty herein made shall apply to the
liabilities of Tenant as any of such liabilities may be changed, extended,
renewed or altered in any manner (provided, however, except in connection with
the exercise by Tenant of any of its express rights or options under the Lease,
which rights and/or options may be exercised without the consent of Guarantor
and without impairing or releasing the obligations of Guarantor hereunder, the
Lease shall not be changed, extended, renewed or altered, so as to materially
increase the obligations of Guarantor hereunder, without the prior written
consent of Guarantor); (x) exercise or refrain from exercising any rights
against Tenant or others, or otherwise act or refrain from acting; (y) settle or
compromise any liabilities hereby guaranteed or hereby incurred, and subordinate
the payment of all or any part of such liabilities to the payment of any
liabilities which may be due to Landlord or others; and (z) apply any sums paid
to any liability or liabilities of Tenant to Landlord regardless of what
liability or liabilities of Tenant to Landlord remain unpaid.
Section 7. Subordination and Waiver of Subrogation. Guarantor hereby
fully subordinates the payment of all indebtedness owing to such Guarantor by
Tenant (including principal and interest) to the prior payment of all
indebtedness of Tenant to Landlord (including, without limitation, interest
accruing on any such indebtedness after any insolvency or reorganization
proceeding as to Tenant) and agrees (x) not to accept any payment on such
indebtedness until payment and performance in full of the Guaranteed
Obligations, and (y) not to attempt to set off or reduce any obligations
hereunder because of such indebtedness. Until all of the Guaranteed Obligations
shall have been paid or performed in full, Guarantor shall have no right of
subrogation or any other right to enforce any remedy which Landlord now has or
may hereafter have against Tenant.
Section 8. Place of Performance: Attorneys' Fees. All payments to be
made and obligations to be performed hereunder shall be payable or performable
in the location for payment or performance (as applicable) set forth in the
Lease. If it becomes necessary for Landlord to enforce this Guaranty by legal
action, Guarantor hereby waives the right to be sued in the county or state of
such Guarantor's residence and agrees to submit to the jurisdiction and venue of
the appropriate federal, state or other governmental court in Dallas County,
Texas. Guarantor unconditionally agrees to pay Landlord's collection expenses,
including, without limitation, court costs and reasonable attorneys' fees if
enforcement hereof is placed in the hands of an attorney, including, but
expressly not limited to, enforcement by suit or through probate, bankruptcy or
any judicial proceedings.
Section 9. Additional Liability of Guarantor. If Guarantor is or
becomes liable for any indebtedness of Tenant to Landlord other than the
Guaranteed Obligations by any means other than under this Guaranty, such
liability shall not be impaired, reduced or affected in any manner hereby but
shall have all and the same force and effect it would have had if this Guaranty
had not existed, and Guarantor's liability hereunder shall not be impaired,
reduced or affected in any manner thereby.
Section 10. Cumulative Rights. All rights of Landlord hereunder or
otherwise arising under any documents executed in connection with the Guaranteed
Obligations are separate and cumulative and may be pursued separately,
successively or concurrently, or not pursued, without affecting or limiting any
other right of Landlord and without affecting or impairing the liability of
Guarantor.
J-4
Section 11. Applicable Law. This Guaranty shall be governed by and
construed in accordance with the laws of the United States of America and the
State of Texas, and is intended to be performed in accordance with and as
permitted by such laws.
Section 12. Usury. Notwithstanding any other provisions herein
contained, no provision of this Guaranty shall require or permit the collection
from Guarantor of interest in excess of the maximum rate or amount that
Guarantor may be required or permitted to pay to Landlord pursuant to applicable
law and as to which Guarantor could successfully assert the claim or defense of
usury.
Section 13. Landlord's Assigns. This Guaranty is intended for and
shall inure to the benefit of Landlord and each and every person who shall from
time to time be or become the owner or holders of all or any part of the Lease
and/or the Guaranteed Obligations, and each and every reference herein to
"Landlord" shall include and refer to each and every successor or assignee of
Landlord at any time holding or owning any part of or interest in any part of
the Lease and/or the Guaranteed Obligations. This Guaranty shall be assignable
or transferable with the same force and effect, and to the same extent, that the
Lease and/or the Guaranteed Obligations are assignable or transferable, it being
understood and stipulated that upon assignment or transfer by Landlord of the
Lease and/or any of the Guaranteed Obligations, the legal holder or owner
thereof (or a part thereof or interest therein thus transferred or assigned)
shall (except as otherwise stipulated by Landlord in its assignment) have and
may exercise all of the rights granted to Landlord under this Guaranty to the
extent of that part of or interest in the Guaranteed Obligations thus assigned
or transferred.
Section 14. Notices. Any notice or demand to Guarantor in connection
herewith must be in writing and shall be given or delivered to such Guarantor at
the following address:
▇▇▇▇▇ Healthcare Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
with a copy to: ▇▇▇▇▇ Healthcare Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
and must be sent by certified United States Mail, return receipt requested,
telecopy, or by Federal Express (or other national overnight delivery service)
or other courier service. Notices or demands sent via certified United States
Mail shall be deemed received two (2) Business Days (as defined in the Lease)
after being deposited in a regularly maintained receptacle for the United States
Mail. Notices or demands sent via telecopy shall be deemed received upon receipt
(provided transmission and receipt thereof is during Building Operating Hours
[as defined in the Lease] on Business Days, otherwise, such telecopied notices
shall be deemed received on the next Business Day) by the sender of electronic
or telephonic confirmation of the transmission thereof. Any other notice shall
J-5
be deemed given upon receipt or refusal thereof. Guarantor shall have the right
to designate from time to time another address for purposes of this instrument
by fifteen (15) days prior written notice to Landlord sent by United States
mail, certified mail, return receipt requested. Actual notice or demand, however
given or received, shall always be effective. The provisions of this Section 14
shall not be construed to affect or impair any waiver of notice or demand herein
provided or to require giving of notice or demand to or upon Guarantor in any
situation or for any reason.
Section 15. Payments. Landlord may apply any payments received from
any source against that portion of the Guaranteed Obligations in such priority
and fashion as Landlord may deem appropriate.
Section 16. No Right of Possession Upon Payment. The payment by
Guarantor of any amount pursuant to this Guaranty shall not, without Landlord's
consent, entitle Guarantor (whether by way of subrogation or otherwise) to a
right of possession of, or to any other right, title or interest in, the
premises covered by the Lease.
Section 17. Entire Agreement. This Guaranty constitutes the entire
agreement of the parties with respect to the subject matter hereof, and all
prior correspondence, memoranda, agreements or understandings (written or oral)
with respect hereto are merged into and superseded by this Guaranty. This
Guaranty may not be changed, modified, discharged or terminated in any manner
other than by an agreement in writing signed by Guarantor and Landlord.
Section 18. Severability. In case any one or more of the provisions
contained in this Guaranty shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the other provisions
contained herein shall not in any way be affected or impaired thereby.
Section 19. Further Instruments. Guarantor hereby agrees to execute
all such further instruments as are reasonably requested by Landlord to further
evidence or protect the rights of Landlord under this Guaranty.
Section 20. Joint and Several Liability. If this Guaranty is
executed by two or more Guarantors, then all such Guarantors hereby acknowledge
and agree that their covenants, agreements, undertakings and obligations
contained hereunder are joint and several, and suit may be brought against such
Guarantors, jointly and severally, and against any one or more of them, or less
than all of them, or any one of them, without impairing the rights of the
Landlord, against all of the other Guarantors; and the Landlord may compound
with any one of Guarantors for such sum or sums as Landlord may see fit and may
release any of such Guarantors from all further liability to the Landlord for
the Guaranteed Obligations without impairing the right of the Landlord to demand
and collect the balance of such Guaranteed Obligations from the other Guarantors
not so released; but it is agreed by Guarantors that as among the Guarantors
themselves, however, that any such compounding and release shall in no way
impair the rights of the Guarantors as among themselves, and that Guarantors
hereby subordinate any rights of subrogation, reimbursement, and contribution
that any of such Guarantors may have against any other Guarantor or person or
entity liable for payment of the Guaranteed Obligations to the rights and claims
of Landlord hereunder and to the rights and remedies Landlord has or may have as
to the Guaranteed Obligations or under the Lease.
J-6
EXECUTED the 14th day of May, 1998.
GUARANTOR:
▇▇▇▇▇ HEALTHCARE CORPORATION,
a Nevada corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
J-7
THE STATE OF __________ ss.
ss.
COUNTY OF _____________ ss.
BEFORE ME, the undersigned, a notary public in and for the State of
_______, on this day personally appeared __________________, the
___________________of ▇▇▇▇▇ Healthcare Corporation, a Nevada corporation, and,
[being known to me] [alternative: being proved to me on the oath of
______________ or through _________________ (describe identity card or other
document of identification)], as the person whose name is subscribed to the
foregoing instrument, acknowledged to me that he/she executed the same for the
purpose and consideration therein expressed and on behalf of said corporation.
Given under my hand and seal of office this ____day of May, A.D.,
1998.
__________________________________________
Notary Public in and for the State of _____
Notary's Name Printed:
__________________________________________
My Commission Expires:
__________________________________________
J-8
EXHIBIT K
LANDLORD FEES
Except as expressly provided below, Landlord shall not be entitled
to any administrative cost recovery fee (other than the Development Fee) with
respect to the initial construction of the Base Building Improvements and the
Tenant Improvements for the Initial Leased Premises. Landlord shall, however, be
entitled to collect the Development Fee in connection with such initial
construction.
Except to the extent specifically provided to the contrary in this
Lease, with respect to any alterations, additions of modifications to the Leased
Premises, the Leasehold Improvements or the Base Building Improvements performed
after the final completion of the initial construction of the Base Building
Improvements and Tenant Improvements pursuant to the general construction
contracts (and any change orders thereto) with the Base Building General
Contractor and Tenant Contractor (collectively, the "Work") either (a) by
Landlord or a contractor hired by Landlord (at Tenant's request or on Tenant's
behalf as required by the terms of this Lease), or (b) by an Outside Contractor
hired by Tenant in accordance with Exhibit D-2, including without limitation as
provided for in the following sections of the Lease:
(a) Section 3.1(a)(vi) (with respect to (x) the installation of
Additional Electrical Equipment, (y) the installation of
additional air conditioning equipment, and (z) any connections
to Base Building systems and to life safety and fire alarm
systems);
(b) Section 3.5(a), (b) and (d) (with respect to changes to
Identity Signs and Signs permitted therein).
(c) Section 5.2(c) (with respect to modifications, alterations and
additions to the Leased Premises);
(d) Section 5.4 (with respect to connections to Base Building
systems and to life safety systems and fire alarm systems);
and for any Work performed by Landlord pursuant to (i) Section 5.3 of the Lease
(with respect to repairs or improvements to the Leased Premises required by
Tenant, but which Tenant has requested Landlord to make) or (ii) Section 6.3 of
the Lease (with respect to any rebuilding of the Leasehold Improvements as a
result of a Casualty, but subject to the limitation contained in said Section
6.3), Tenant shall reimburse Landlord (whether or not the Work is actually
performed) for the reasonable costs incurred by Landlord to engage an engineer
to review the proposed Work (if applicable) and, if Landlord or a contractor
hired by Landlord performs the Work, for the actual costs and expenses of the
Work. In addition to (and not in lieu of) the foregoing, Tenant shall be
required to pay Landlord a fee for administrative cost recovery equal to five
percent (5%) of the cost of such Work if performed by Landlord or a contractor
hired by Landlord (but not if performed by an Outside Contractor hired by
Tenant).
K-1
Additionally, in the event Landlord incurs any costs or expenses
pursuant to the provisions of the Lease described below, after the expiration of
any notice and cure periods provided in such sections, Tenant shall reimburse
Landlord for all such costs and expenses incurred by Landlord, and shall pay a
fee for administrative cost recovery (which shall be in addition to and not in
lieu of such reimbursement for costs and expenses) equal to ten percent (10%) of
such costs and expenses:
a. Section 1.5(i) (with respect to any failure by Tenant to
provide the services described in Section 1.5(h) with respect
to any Special Use Area);
b. Section 3.1(a)(vi) (with respect to any failure by Tenant to
eliminate harmonic distortion conditions and/or to repair any
damage caused thereby);
c. Section 5.2(f) (with respect to the cancellation or discharge
of mechanics', materialmen's or other liens);
d. Section 5.3 (with respect to repairs or restoration required
due to damage caused by Tenant or its agents, contractors or
employees);
e. Section 5.4 (with respect to the repair work required to be
performed by Tenant, but which Tenant has failed to commence
or diligently complete within the time periods specified in
said Section); and
f. Section 7.1(b)(i) (with respect to the correction or repair of
the conditions described in said Section).
K-2
EXHIBIT L
LINE ITEM BUDGET
[SEE ATTACHED]
L-1
Galleria North - Phase I (TENET)
Dallas, Texas
Project Budget
Summary
May 8, 1998
Project Name: Galleria North - Phase I (TENET)
GSF: 392,508 /SF
NRA: 377,911 /SF
Surface Parking: 6
Garage Parking: 1,184
Whole $ Per NRA SF
------------ --------------
30 Land/Site $ 2,771,594 $ 7.33
31 Architectural/Engineering 1,743,318 4.61
32 Construction 37,415,062 99.00
33 Tenant Work 12,848,974 34.00
34 Taxes/Insurance/Permits 469,329 1.24
35 Financing 3,102,340 8.21
36 Leasing 761,009 2.01
37 PR & Marketing 10,000 0.03
38 General & Administrative 2,591,353 * 6.86
39 Contingency 1,851,389 4.90
------------ --------------
Total $ 63,564,368 $ 168.20
------------ --------------
* General & Administrative costs total 4.25% of total project costs
(3% for fee and 1.25% for reimbursement) per agreement with TENET
L-2
Galleria North - Phase I (TENET)
Dallas, Texas
Project Budget
Land/Site Summary
May 8, 1998
30-000 SITE COSTS
30-010 Land Acquisition Cost $ 2,500,000
30-050 Title - Registration/Insurance $ 210,214
30-080 Legal - Site Cost $ 61,380
30-200 Off-Site Costs
30-210 Impact Fees $ -
30-250 Other $ -
------------
TOTAL SITE COST $ 2,771,594
------------
L-3
Galleria North - Phase I (TENET)
Dallas, Texas
Project Budget
Architectural/Engineering Summary
May 8, 1998
31-000 ARCHITECTURAL & ENGINEERING
31-100 Architecture
31-110 Design Architects Fees $ 832,753
31-115 Associate Architects Fees $ -
31-120 Production Architects Fees $ -
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ Architect $ 27,811
31-200 Engineering
31-210 Structural Engineer - Fees $ 214,392
31-220 Mechanical Engineer - Fees $ 156,824
31-225 Mechanical Controls Consultant $ 29,000
31-230 Geotechnical Consultant $ 3,715
31-240 Survey Engineering $ -
31-245 Civil Engineering $ 13,634
31-250 Testing $ 100,000
31-270 Window Wall Testing/Consultant $ 33,351
31-280 Wind Tunnel Testing $ -
31-300 Specialty Consultants
31-310 Acoustical Consultants $ 12,232
31-320 Elevator Consultants $ 27,461
31-330 Lighting Consultants $ 13,344
31-340 Traffic Survey/Parking Consultants $ 7,560
31-350 Graphics Consultants $ 25,000
31-360 Garage Consultants $ 8,740
31-370 Window Washing Consultant $ 15,000
31-380 Security Consultant $ 32,000
31-385 Floor Plan/Interior Consultant $ -
31-390 Other Consultants $ 15,000
31-395 Environmental Consultants $ 500
31-400 Reimbursables
31-410 Travel & Entertainment $ 10,000
31-440 Blueprints/Reproduction $ 165,000
31-470 Other Reimbursables $ -
------------
TOTAL ARCHITECTURAL & ENGINEERING COST $ 1,743,318
------------
L-4
Galleria North - Phase I (TENET)
Dallas, Texas
Project Budget
Construction Summary
May 8, 1998
32-000 CONSTRUCTION COSTS
32-010 Base Building General Costs $ 28,337,152
32-030 Garage Construction Costs $ 8,598,910
32-100 BUILDING SYSTEM SEPARATE COSTS
32-100 Building System Separate Costs $ 479,000
32-900 OTHER CONSTRUCTION COSTS
32-900 Other Construction Costs $ -
------------
TOTAL CONSTRUCTION COST $ 37,415,062
------------
L-5
Galleria North - Phase I (TENET)
Dallas, Texas
Project Budget
Tenant Work Summary
May 8, 1998
33-000 TENANT WORK
33-400 Tenant Cash Allowances
33-410 Tenant Allowance - Major Tenant $ 12,848,974
33-420 Tenant Allowance - Other Tenants $ -
33-425 Leasing Inducement - Retail Tenants $ -
33-460 Tenant Architectural & Engineering $ -
33-480 Other Tenant Cash Allowances $ -
------------
TOTAL TENANT WORK COST $ 12,848,974
------------
L-6
Galleria North - Phase I (TENET)
Dallas, Texas
Project Budget
Taxes Summary
May 8, 1998
34-000 TAXES AND INSURANCE
▇▇-▇▇▇ ▇▇▇▇▇
▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Taxes $ 469,329
34-300 Permits/Insurance
34-310 Building Permits/Insurance $ -
34-900 Other Fees
34-900 Utility Tap Fees/Service Charges $ -
------------
TOTAL TAX & INSURANCE COST $ 469,329
------------
L-7
Galleria North - Phase I (TENET)
Dallas, Texas
Project Budget
Financing Summary
May 8, 1998
35-000 FINANCING COSTS
35-100 Predevelopment
35-110 Predevelopment Loan, Interest & Fees $ 100
35-200 Construction Loan
35-210 Loan Fee/Lender Cost $ 158,900
35-220 Construction Loan Interest $ 2,943,300
35-300 Permanent Financing
35-310 Permanent Loan Commitment Fees $ -
------------
TOTAL FINANCING COST $ 3,102,300
------------
L-8
Galleria North - Phase I (TENET)
Dallas, Texas
Project Budget
Leasing Summary
May 8, 1998
36-000 LEASING COSTS
36-100 Leasing Commissions
▇▇-▇▇▇ ▇▇▇▇ Broker Commissions $ -
36-130 Outside Commissions $ 472,389
36-300 Space Planning
36-310 Tenant Space Planning $ -
36-400 Legal
36-400 Legal $ 288,620
36-900 Other Leasing Cost
36-900 Other Leasing Cost $ -
------------
TOTAL LEASING COST $ 761,009
------------
L-9
Galleria North - Phase I (TENET)
Dallas, Texas
Project Budget
Public Relations & Marketing Summary
May 8, 1998
37-000 PUBLIC RELATIONS AND MARKETING
37-010 Printed Marketing/Advertising Materials $ -
37-015 Special Advertising/Marketing $ -
37-030 Display Materials/Models $ -
37-050 General Photography $ -
37-060 Signs/Barricade Signs $ -
37-080 Announcement Parties $ 10,000
37-900 OTHER
37-900 Other $ -
------------
TOTAL PUBLIC RELATIONS AND MARKETING COST $ 10,000
------------
▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ I (TENET)
Dallas, Texas
Project Budget
General & Administrative Summary
May 8, 1998
38-000 GENERAL & ADMINISTRATIVE $2,591,353.13
-------------
TOTAL GENERAL & ADMINISTRATIVE COST $2,591,353.13
-------------
▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ I (TENET)
Dallas, Texas
Project Budget
Contingency Summary
May 8, 1998
39-000 CONTINGENCY
39-100 Contingencies
39-110 Project Contingency $ 1,851,389
------------
TOTAL CONTINGENCY COST $ 1,851,389
------------
L-12
EXHIBIT M
FORM OF PROJECT COSTS DECLARATION
TABS
______________________________________ ___________,.199_
______________________________________
______________________________________
Gentlemen:
Please refer to that certain Office Lease Agreement (the "Lease")
dated effective as of May 14, 1998, by and between Texas Corporate Properties,
L.P., a Texas limited partnership, as landlord ("Landlord"), and the undersigned
▇▇▇▇▇ Hospitals Limited, a Texas limited partnership, as tenant ("Tenant"),
covering office space (the "Leased Premises") in the Building (as defined in the
Lease) located in Dallas County, Texas. Capitalized terms not defined herein
shall have the meaning given to such terms in the Lease. The undersigned hereby
certifies, acknowledged and represents the following to you, all as of the date
hereof:
The total amount of Project Costs for all purposes under the Lease
is $_____________. As a result thereof, the Base Rental Rate (as defined in the
Lease) for the Initial Term is as follows:
Lease Years Base Rental Rate
----------- ----------------
Lease Years 1 - 5 $_______________
Lease Years 6 - 10 $_______________
The undersigned hereby agrees that this certificate may be relied
upon by Landlord and its lenders and partners, as well as their respective
successors and assigns.
Very truly yours,
▇▇▇▇▇ HOSPITALS LIMITED,
a Texas limited partnership
By: ▇▇▇▇▇ HealthSystem Hospitals, Inc., a
a Delaware corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
M-1
▇▇▇▇▇ HEALTHCARE CORPORATION,
a Nevada corporation, as Guarantor
By: _____________________________
Name: _____________________________
Title: _____________________________
AGREED AND ACCEPTED
this ______ day of _________________, 199__
TEXAS CORPORATE PROPERTIES, L.P.,
a Texas limited partnership
By: Texas Corporate Properties GP, LLC,
its general partner
By: ▇▇▇▇▇ Corporate Properties, LLC,
its sole member
By: _______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
M-2
EXHIBIT N
SIGN PARAMETERS
General Criteria
The following design criteria applies to all signage:
Acceptable Materials:
Stone, precast concrete or metal. Letters may be translucent white plastic
or metal.
Project Monument Sign
Size Criteria
Height - Not to exceed 4'6"
Width - Not to exceed 12'0"
Thickness - Not to exceed 2'0"
Method of Illumination
Monument signage will be designed to be visible at night. Acceptable
metods of illumination are (a) ground mounted flood light(s) in front of the
sign, or (b) back lit translucent plastic letters cut as stencils within a metal
panel background, or (c) raised solid letters back lit with concealed neon, or
(d) some combination of (a), (b) or (c).
Complex Monument Sign
Size
Height - Not to exceed 8'0"
Width - Not to exceed 12'0"
Thickness - Not to exceed 2'0"
Method of Illumination
Same as Project Monument Sign.
Parapet Signs
Size and Location
Per attached rendering.
Method of Illumination
Signage will be designed to be visible at night. Acceptable methods of
illumination are (a) building-mounted flood light(s), or (b) metal channel
letters with back lit translucent plastic face, or (c) raised solid letters back
lit with concealed neon, or (d) some combination of (a), (b) or (c). All
lighting or back lit letters will be white light.
N-1
[GRAPHIC OF BUILDING WITH PROPOSED SIGNAGE]
TOWER ONE
WEST ELEVATION
N-2
[GRAPHIC OF BUILDING WITH PROPOSED SIGNAGE]
TOWER ONE
EAST ELEVATION
N-3
[GRAPHIC OF BUILDING WITH PROPOSED SIGNAGE]
TOWER ONE
SOUTH ELEVATION
N-2
EXHIBIT O
CONFIDENTIALITY AGREEMENT
________________________
c/o Hines Interests Limited Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
______________________________________ ___________, 199_
______________________________________
______________________________________
Re: Lease Agreement (the "Lease") dated _____ between ______
("Landlord") and ______("Tenant") or "you" for space in
____________(the "Building")
Gentlemen:
With respect to the Lease, you have requested that Landlord allow you to
examine or audit certain books or records relating to operating expenses or
escalation ▇▇▇▇▇▇▇▇ respecting the Lease covering space in or the Building (as
applicable, the "Audit"). As you probably realize, certain information which may
be made available for such Audit is confidential and sensitive. Landlord is
willing to make information available to you only upon your agreement to the
terms and conditions set forth in this Confidentiality Agreement (this
"Agreement"). Accordingly, as a condition to our furnishing such information to
you, we are requiring that you agree, as set forth below, to treat
confidentially information that landlord or its representatives (including
attorneys, accountants, property managers, and financial advisors and employees
of any affiliate of Landlord or Landlord's constituent partners) furnishes to
you or your employees, agents, representatives, advisors, accountants,
affiliates or representatives (all of the foregoing collectively referred to as
your "Representatives"), whether furnished before, on or after the date of this
Agreement, and all data, audit opinions, analyses, compilations, studies or
other documents, whether prepared by you or others, which contain or otherwise
reflect or are based in whole or in part on such information (collectively, the
"Evaluation Material").
The Evaluation Material may include any or all of the following
information, (i) any and all information relating directly or indirectly to
business information and business information contained in materials provided by
or on behalf of Landlord in connection with the Audit; (ii) specific figures of
the operating expenses of the Project (as defined in the Lease) charged under
Lease and under other leases in the Project as to both individual expense items
and aggregate; expense levels; (iii) the methodology of computing Tenant's share
of increases in operating expenses and of any "gross up" calculation in
connection therewith, as to the Project; (iv) the methodology and procedures of
the bookkeeping and accounting practices of Landlord as provided to Tenant
connection with the Audit, or discovered by Tenant in the course of performing
the Audit; (v) services provided by Landlord relating to items of operating
O-1
expenses for the Project; (vi) management fee payable by Tenant under the Lease
and the methodology for computing same; (the level, amount and calculation of
any chargebacks, credits and offsets to operating expense the Project; and
(viii) the amounts, terms and/or basis of the resolution of any disputes arising
of the Audit between Landlord and Tenant and all aspects thereof.
The term "Evaluation Material" does not include information which (i) is
or becomes generally available to the public other than as a result of a
disclosure by you or your Representative (ii) was in your possession on what you
reasonably believed to be a non-confidential basis prior to its disclosure to
you by Landlord or its representatives, provided that the source of such
information was not to your knowledge bound by a confidentiality agreement with
Landlord or its representative or otherwise prohibited from transmitting the
information to you or your Representatives by contractual, legal or fiduciary
obligation, or (iii) becomes available to you on what you reasonably believe to
be a non-confidential basis from a source other than Landlord or its
representative provided that such source is not known by you to be bound by a
confidentiality agreement with Landlord or its representatives or otherwise
prohibited from transmitting the information to you or your Representatives by a
contractual, legal or fiduciary obligation.
It is understood that Tenant may disclose any of the Evaluation Material
(x) to its attorney and other legal consultants and to judicial tribunals,
arbitration panels and mediators in connection with any litigation, arbitration
or mediation based on this Agreement, and (y) to those of your Representatives
who require such material for the purpose of the Audit only, provided that such
Representatives (i) shall be informed by you of the confidential nature of the
Evaluation Material (ii) shall be directed by you to treat the Evaluation
Material confidentially in accordance with terms hereof; and (iii) shall execute
a separate confidentiality agreement (a "Separate Agreement") with you for the
benefit of Landlord and Tenant on essentially the same terms and conditions as
Agreement. A copy of the Separate Agreement shall be delivered to Landlord prior
to the time your Representative works on the Audit or obtains any of the
Evaluation Material. You agree that Evaluation Material will be kept
confidential by you and your Representatives and, except with specific prior
written consent of Landlord or as expressly otherwise permitted by the terms
herein will not be disclosed, disseminated, divulged or used, directly or
indirectly, in whole or in part, to you or your Representatives. You further
agree that you and your Representatives will not disclose, disseminate, divulge
or use any of the Evaluation Material for any reason or purpose (including
without limitation, any audit by any other tenant of the Project or any other
properties owned by Landlord or its affiliates) other than to conduct the Audit
for Tenant with respect to Tenant's Lease.
Without the prior written consent of Landlord, you and your
Representatives will not disclose, disseminate or divulge, directly or
indirectly, in whole or in part, to any person the fact that you have entered
into this Agreement, that this Agreement exists, that Evaluation Material (or
any information that would otherwise constitute Evaluation Material were it not
for the second paragraph of this Agreement) has been made available to you by
Landlord or that you have inspected any portion of the Evaluation Material (or
any such information).
O-2
In the event that you or any of your Representatives are requested or
required (by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process) to disclose
any of the Evaluation Material, it is agreed that you or such Representative, as
the case may be, will provide Landlord with prompt notice of such request(s) so
that it may, at its election, seek an appropriate protective order or other
appropriate remedy and/or waive your or such Representative's compliance with
the provisions of this Agreement. In the event that such protective order or
other remedy is not obtained, or that Landlord grants a waiver hereunder, you or
such Representative may furnish that portion (and only that portion) of the
Evaluation Material which, in the written opinion of your counsel, you are
legally compelled to disclose (provided you promptly notify Landlord that a
portion of the Evaluation Material has been furnished and provide Landlord with
a copy of such written opinion and such furnished portion of the Evaluation
Material or otherwise sufficiently identify such furnished portion of the
Evaluation Material) and will exercise your reasonable efforts to obtain
reliable assurance that confidential treatment will be accorded any Evaluation
Material so furnished.
All communications regarding an Audit, including, without limitation,
requests for additional information or meetings and discussions or questions
regarding procedures, must be submitted or directed to Landlord in care of ▇▇▇▇▇
Interests Limited Partnership, Suite 5000, Transco Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ________________.
You will not make copies, extracts or other reproductions of any of the
Evaluation Material except as necessary to assist you in the Audit. Promptly
upon the earlier of the termination of your Lease or the request of Landlord
upon conclusion of the Audit, you will deliver to Landlord all documents or
other matter furnished by Landlord to you or your Representatives constituting
Evaluation Material. In the event of such request, all other documents or other
matter constituting Evaluation Material in the possession of you or your
Representatives will, except as provided in the immediately succeeding sentence,
be destroyed. You may retain any copies made by you in connection with the
Audit, but you specifically understand and agree, on your behalf and on behalf
of your Representatives, that all of such retained information shall continue to
be deemed confidential information of Landlord and shall continue to be subject
to the terms of this Agreement.
You hereby agree to indemnify and hold harmless Landlord and its
representatives from any damage, loss, cost or liability (including reasonable
legal fees and the reasonable cost of enforcing this indemnity and any other
term of this Agreement) arising out of or resulting from any unauthorized use or
disclosure by you or your Representatives of any Evaluation Material (and/or any
retained copies thereof). You also acknowledge that damages might be
incalculable or an insufficient remedy for any breach of this Agreement by you
or your Representatives and, accordingly, you also agree for Tenant and its
Representatives that in the event of any breach or threatened breach of this
Agreement, Landlord, in addition to any other remedies that it may have at law
or in equity, shall be entitled, without the requirement of posting a bond or
other security, to equitable relief, including injunctive relief and specific
performance.
It is understood and agreed that no failure or delay by Landlord in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
O-3
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect.
Please sign and return one copy of this letter, which thereupon will
constitute our Agreement with respect to the subject matter herein.
Very truly yours,
By: ____________________________
"LANDLORD"
Confirmed and agreed to as of the date first above written:
______________________________________
By: __________________________________
"TENANT"
______________________________________
By: __________________________________
"TENANT's AUDITOR(S)"
O-4
EXHIBIT P
ON-SITE PERSONNEL
1) Group Property Manager *
2) Property Manager
3) Assistant Property Manager
4) Chief Engineer
5) Three (3) Engineers
6) One (1) Apprentice Engineer
7) Secretary
8) Bookkeeper
9) Accountant *
* may be off-site with allocation by "time spent" basis.
P-1
EXHIBIT Q
ARCHITECTS CERTIFICATE
The undersigned, HaldemanPowell + Partners ("Architect"), has been
engaged as the architect for construction of the Building (as defined in
Schedule I, attached hereto) and, as such, has prepared, reviewed and is
otherwise completely familiar with the final plans and specifications which
govern construction of the Building (as amended from time to time, the "Plans").
This Certificate is given by Architect to ▇▇▇▇▇ Hospitals Limited, a Texas
limited partnership ("Tenant"), pursuant to Section 1.2(b) of that certain
Office Lease Agreement dated May 14, 1998 (the "Lease") by and between Texas
Corporate Properties, L.P., a Texas limited partnership (hereinafter called
"Landlord"), as landlord, and Tenant, as tenant, in order to confirm to Tenant
the occurrence of the events described below, and it is intended that Tenant may
rely upon the contents and accuracy of this Certificate.
Architect hereby certifies to Tenant with respect to floors ___,
___, ___, and _____ of the Building (collectively, a "Major Portion of the
Building"), the following have occurred as of the date hereof:
(i) the exterior curtain wall and window glass are
substantially complete (as defined in Schedule I attached hereto), except
for hoistways, to the extent necessary for such Major Portion of the
Building to be water-tight;
(ii) the services described in Schedule II attached hereto are
ready and capable of being furnished to such Major Portion of the
Building, as contemplated by the Plans;
(iii) the toilet rooms on all floors of such Major Portion of
the Building are substantially completed and operational;
(iv) except for two (2) passenger elevator cabs in such Major
Portion of the Building which are operational but unfinished, all
passenger elevator cabs to such Major Portion are operational and finished
to Building Standard (as defined in Schedule I attached hereto) condition;
(v) the Building Garage and the Adjacent Garage (each as
defined in Schedule I attached hereto) and access thereto from the
Building and public streets are substantially completed, and,
collectively, such garages contain a minimum of ___ parking spaces which
are available for use by Tenant;
(vi) the floors, ceilings and walls in the public entrances to
the Building and the ground floor Building lobby are completed to the
extent necessary to provide Tenant and its employees and visitors safe
(and no hard hats need to be worn by Tenant or any of its employees and
visitors), reasonably presentable and unimpeded access to and from such
Major Portion of the Building; provided, however, Tenant understands and
agrees that dry wall may have been used to partition unfinished areas from
the sight of Tenant and its employees and visitors, but such partitions
have been painted so as to make such areas reasonably presentable;
Q-1
(vii) the areas located within the Project Plaza intended to
provide access to and from the Building shall be substantially completed,
however, landscaping and any non-access related improvements to be located
within the Project Plaza need not be installed or substantially complete;
(viii) except as specifically noted above, the Base Building
Improvements (as defined in Schedule I, attached hereto, excluding item 25
thereof) actually located, or intended to be located, in such Major
Portion of the Building pursuant to the Plans have been substantially
completed; and
(ix) a certificate of occupancy or other governmental
authorization has been issued for the shell of the Building to the extent
necessary to not preclude Tenant from obtaining a certificate of occupancy
or other permit required for Tenant's use of such Major Portion of the
Building upon completion of its tenant improvements.
EXECUTED this ____ day of _________, 199_.
HALDEMANPOWELL + PARTNERS
By: _______________________________
Name: _____________________________
Title: ____________________________
ATTACHMENTS:
SCHEDULE I - Definitions
SCHEDULE II - Services
SCHEDULE III - Building Standard Improvements
Q-2
SCHEDULE I ARCHITECT'S CERTIFICATE
DEFINITIONS
"Building" means the Base Building (defined below) being constructed at
_______________, Dallas, Texas, pursuant to the Plans.
"Base Building" means the Building shell plus the Base Building Improvements
(defined below).
"substantially completed" or "substantially complete" means the completion of
all items of construction in substantial compliance with the Plans for the
subject work except for minor "punch list" items which in the aggregate do not
materially interfere with the use and occupancy of the subject space for its
intended purposes and which can be completed without materially interfering with
the use of such space.
"Building Standard" means materials of the type, quality, and quantity described
or depicted in the Building Plans or comparable substitutes.
"Building Garage" means the parking garage constructed or to be constructed
under the Building.
"Adjacent Garage" means the shared facilities for parking constructed or to be
constructed to the North of the Building which is intended to serve the Building
and other buildings located or to be located within the complex to be known as
"Galleria North".
"Base Building Improvements" means the improvements described in Schedule III
attached hereto.
"Building Operating Hours" shall mean 7:00 a.m. until 6:00 p.m. Monday through
Friday and 8:00 a.m. through 1:00 p.m. on Saturday, excluding holidays.
Q-3
SCHEDULE II TO ARCHITECT'S CERTIFICATE
SERVICES
(1) Hot water (i.e., thermostat set in the range of 110(degree) to
120(degree) Fahrenheit for comfort and energy conservation) and cold domestic
water in common use restrooms and toilets at locations provided for general use.
(2) Central heat and air conditioning in season during Building
Operating Hours (as defined in Schedule I attached hereto), with equipment
designed to perform so that the average indoor conditions during Building
Operating Hours shall be a minimum of 72(Degree)F dry bulb +/-2(degree) in the
winter when the outdoor temperature is not lower than 17(Degree)F dry bulb and a
maximum of 75(Degree)F dry bulb +/-2(Degree) in the summer when the outdoor
temperature is not higher than 100(Degree)F dry bulb, assuming sustained peak
loading conditions of one (1) person per 200 square feet of usable area and a
combined light and power demand load of 5 ▇▇▇▇▇ per square foot of usable area.
(3) Electric lighting service for all public areas and special
service areas of the Building.
(4) Sufficient electrical capacity transformed to a panel box
located in the core of each floor of the Building to operate (a) incandescent
lights, typewriters, calculating machines, photocopying machines, stand alone
network computers, word processing equipment, personal computers,
telecommunications and other machines of similar low voltage electrical
consumption (120/208 volts), provided that the total rated electrical design
load at one hundred percent (100%) capacity for said lighting and machines of
low electrical voltage on each such floor shall not exceed two (2) ▇▇▇▇▇ per
square foot of usable area on such floor; and (b) fluorescent lighting and
equipment of high voltage electrical consumption (277/480 volts), provided that
the total rated electrical design load at one hundred percent (100%) capacity
for said lighting and equipment of high electrical voltage shall not exceed two
(2) ▇▇▇▇▇ per square foot of usable area on such floor. The Base Building bus
duct will provide capacity for a total of six (6) ▇▇▇▇▇ per square foot of
usable area (of which four (4) ▇▇▇▇▇ are dedicated in subsections (4)(a) and
(4)(b) above).
(5) Non-exclusive elevator cab passenger service capable of being
provided twenty-four (24) hours per day every day of the year of sufficient
capacity to service the Building.
(6) Shared access to and use of the Building's loading dock for
Tenant's loading, unloading, delivery, and pick-up activities twenty-four (24)
hours per day, seven (7) days per week.
(7) Sanitary sewer service twenty-four (24) hours per day, every day
of the year.
Q-4
SCHEDULE III TO ARCHITECT'S CERTIFICATE
BASE BUILDING IMPROVEMENTS
1. Building Standard 2' X 2' acoustical ceiling tile installed on exposed
grid, to be installed at Building Standard height as required according to
the bid documents.
2. Building Standard heating, ventilation and air conditioning systems
installed in substantial accordance with the Building plans and
specifications including one draw-through-type air handling unit in the
air handling room on each floor, with primary distribution loop and
perimeter system installed at the perimeter of the Building as necessary
to provide Building Standard HVAC service. The Tenant's air conditioning
will be carried (at Tenant's cost) to each zone by a duct system which is
connected to Building Standard slot diffusers at the perimeter and 2' X 4'
light troffer diffusers at interior zones to satisfy Building Standard
layout design loads of a minimum 1 CFM/square foot of usable area
3. Building Standard automatic fire sprinkler system, not to exceed one (1)
concealed type sprinkler head per one hundred twenty-five (125) square
feet of usable area and located so as to accommodate Tenant's partition
plan, provided Tenant uses only Building Standard ceiling at Building
Standard height of 9 feet.
4. Exit lights, fire alarms, and smoke detectors shall be installed during
the construction of the Base Building by Landlord to comply with legal
requirements. Additional fire alarms or smoke detectors are not normally
required. Landlord will furnish and install the Building Standard fire
protective alarm and voice communications system (including speakers) for
an open-floor plan in compliance with legal requirements.
5. Building Standard 2' X 4' recessed 3 tube fluorescent fixtures with T-8
lamps and electronic ballasts installed as required by the bid documents
not to exceed one fixture per seventy-five (75) square feet of usable
area. The 2' X 4' lights are required to be installed on a lengthwise axis
parallel to the axis of the Building in the perimeter offices and in any
open space plan area which may be seen from the windows. The distribution
of circuits from the Base Building electrical panel shall be accomplished
in substantial accordance with Building plans and specifications.
6. Building Standard electrical equipment necessary to provide Building
Standard electrical service. Electrical service to each floor is fed from
the Building's main electrical bus riser.
7. Baffling and sound insulation, if any, is included only as designed in the
core areas of the Base Building.
8. Building Standard one inch horizontal window blinds are to be installed in
each exterior window on each floor (excluding lobbies and the top of the
Building).
9. Building Standard structural floor loading capacities shall be 80 pounds
per square foot of usable area and the Building shall have a partition
load of 20 pounds per square foot.
Q-5
10. The concrete floor slab will be troweled, smoothed, leveled (with a
variance not to exceed industry standard tolerances), and finished in
substantial accordance with the Building plans and specifications.
11. Interior columns will be taped and bedded, and non-glass exterior walls
will be insulated, taped, and bedded. Core walls will be taped and bedded.
12. Full-height (unless otherwise specified by legal requirements) doors and
first-quality, heavy-duty butts and jambs installed in substantial
accordance with the Building plans and specifications on all mechanical,
electrical, telephone and janitors' rooms in addition to all stairwells.
Door closers and/or locking devices will be installed on core doors where
required by legal requirements.
13. Building Standard stairwells (including, in any event, concrete stair
tread) between all floors completed in substantial accordance with
Building plans and specifications.
14. Building Standard metal finish elevator doors to be either factory or
field painted (at Landlord's option) in substantial accordance with the
Building plans and specifications. Elevator frames and jambs will be
constructed in substantial accordance with the Building plans and
specifications.
15. Building Standard passenger and freight elevators of sufficient quantity,
speed, performance and finishes to provide passenger and freight elevator
service.
16. Access at the core to domestic cold water, waste and vent systems.
Landlord will provide one (1) sanitary sewer and vent connection per floor
in the core area, each in substantial accordance with the Building plans
and specifications.
17. Exterior Building wall to be installed in substantial accordance with the
Building plans and specifications and weather-tight (except at exterior
construction hoisting and trash chute locations, which will be enclosed
but not necessarily weather-tight) after commencement of construction of
Tenant improvements.
18. Plaza and/or lobby level of the Building to be substantially completed in
substantial accordance with the Building plans and specifications.
19. One (1) Building Standard drinking fountain per floor.
20. Building Standard ladies' and men's toilets to be provided in substantial
accordance with the Building plans and specifications, including Building
Standard accessories.
21. Building Standard janitorial closets (if required separate from mechanical
rooms on each floor) constructed in substantial accordance with the
Building plans and specifications.
22. Building Standard telephone closets and telephone boards will be installed
one each per floor located at the core of the Building and will be
finished in sheetrock.
Q-6
23. Basement levels (if applicable ) to be substantially completed in
substantial accordance with the Building plans and specifications. Pump
rooms, transformer vaults, emergency generator, other mechanical and
electrical rooms, and the loading dock area to be substantially completed
in substantial accordance with Building plans and specifications.
24. Mechanical, electrical, plumbing and other Base Building systems to be
substantially completed in substantial accordance with the Building plans
and specifications.
25. Building Standard stairwell pressurization (if required), fresh air
make-up and toilet exhaust requirements are to be substantially completed
in substantial accordance with the Building plans and specifications.
Q-7
EXHIBIT R
PROJECT RULES
1. Sidewalks, doorways, vestibules, halls, stairways, elevator lobbies and
other similar areas in the common areas of the Building shall not be used
for the storage of materials or disposal of trash, be obstructed by
tenants or Landlord, or be used by tenants or Landlord for any purpose
other than entrance to and exit from the tenant's leased areas and the
Building and for going from one part of the Building to another part of
the Building and/or Complex.
2. Plumbing fixtures shall be used only for the purposes for which they are
designed, and no sweepings, rubbish, rags or other unsuitable materials
shall be disposed into them. Damage resulting to any such fixtures proven
to result from misuse by a tenant, and not by Landlord's cleaning
contractors responsible for cleaning the tenant's leased area and the
Building, shall be the liability of said tenant.
3. Signs, advertisements, graphics or notices visible in or from public
corridors, any common area or public areas of the Building or from outside
the Building shall be subject to Landlord's (or Landlord's property
manager's) prior written approval. No part of the Complex may be defaced
by tenants.
4. Significant movement in or out of the Building of furniture, office
equipment, or any other bulky or heavy materials shall be restricted to
such hours as Landlord (or Landlord's property manager) shall reasonably
designate. Landlord (or Landlord's property manager) will determine the
method and routing of the movement of said items so as to ensure the
safety of all persons and property concerned and Tenant shall be
responsible for all costs and expenses associated therewith. Advance
written notice of intent to move such items must be made to the Landlord
(or Landlord's property manager) at least twenty-four (24) hours before
the time of such move. For non-significant movement in or out of the
Building of portable items which do not require use of dollies or other
moving equipment, notice to Landlord (or Landlord's property manager)
shall not be required.
5. All deliveries (including messenger deliveries but excluding deliveries of
small hand carried parcels) to a tenant's leased premises shall be made
through the freight elevators. Passenger elevators are to be used only for
the movement of persons. Delivery vehicles shall be permitted only in such
areas as are designated by Landlord, from time to time, for deliveries to
the Building. Absolutely no carts or dollies are allowed through the main
entrances of the Building or on passenger elevators without the prior
written consent of Landlord (or Landlord's property manager). Tenants may
obtain the prior written consent of Landlord (or Landlord's property
manager) for any exception to the provisions of this Paragraph 5.
After-hours removal of hand carried items must be accompanied by an
"Equipment Removal Form" or "Property Pass" [to be provided by Landlord
(or Landlord's property manager)].
R-1
A letter signed by an authorized representative of a tenant on such
tenant's letterhead will also be acceptable. A list of persons authorized
to sign the Equipment Removal Form or Property Pass (and any amendments
thereto) will be furnished by each tenant to Landlord and Landlord shall
be entitled to rely thereon. Each tenant shall have the right to amend
such list from time to time upon written notice to Landlord (or Landlord's
property manager).
6. Landlord (or Landlord's property manager) shall have the authority to
approve the proposed weight and location of any safes and heavy furniture
and equipment, which shall in all cases stand on supporting devices
approved by Landlord in order to distribute the weight.
7. Corridor doors which lead to common areas of the Building (other than
doors opening into the elevator lobby on floors leased entirely to a
tenant) shall be kept closed at all times.
8. Each tenant shall cooperate with Landlord (and Landlord's property
manager) in keeping its leased area neat and clean. No tenant shall employ
any person for the purpose of such cleaning other than the Building's
cleaning and maintenance personnel without prior approval of Landlord (or
Landlord's property manager).
9. All freight elevator lobbies are to be kept neat and clean. The disposal
of trash or storage of materials in these areas is prohibited.
10. No birds, fish or other animals shall be brought into or kept in, on or
about the Building (except for Seeing Eye dogs).
11. Tenants shall not tamper with or attempt to adjust temperature control
thermostats in their leased premises. Landlord shall promptly respond to
each tenant's notices as to, and Landlord (or Landlord's property manager)
shall adjust thermostats as required to maintain, the Building standard
temperature. Each tenant shall use reasonable efforts to keep all window
blinds down and tilted at a 45 degree angle toward the street to help
maintain comfortable room temperatures and conserve energy.
12. Each tenant will comply with all security procedures necessary both during
business hours and after hours and on weekends. Landlord will provide each
tenant with prior notice of such security procedures and any changes
thereto promptly.
13. Tenants are requested to lock all office doors leading to corridors and to
turn out all lights at the close of their working day; provided, however,
that no tenant shall be responsible to ensure that Landlord's cleaning
contractor locks doors and turns out lights after cleaning the tenant's
leased premises.
14. All requests for overtime air conditioning or heating must be submitted in
writing to Landlord (or Landlord's property manager) by an authorized
representative of the tenant. A list of persons authorized to request such
overtime services (and any amendments thereto) will be furnished by the
tenant to Landlord and Landlord shall be entitled to rely thereon. Any
R-2
such request must be made by 2:00 p.m. on the day desired for weekday
requests, by 2:00 p.m. Friday for weekend requests and by 2:00 p.m. on the
preceding Business Day for holiday requests. Requests made after that time
may result in an additional charge to such tenant, if acted upon by
Landlord, but Landlord is in no event obligated to act on untimely
requests.
15. No flammable or explosive fluids or materials shall be kept or used within
the Building except in areas approved by Landlord, and each tenant shall
comply with all applicable building and fire codes relating thereto.
16. Tenants may not make any modifications, alterations, additions or repairs
to their leased premises and may not install any furniture, fixtures or
equipment in their leased premises which is in violation of any applicable
building and/or fire code governing their leased premises or the Project.
The tenant must obtain prior approval from Landlord (or Landlord's
property manager) of any such alterations, modifications and additions and
shall deliver "as built" plans therefor to Landlord (or Landlord's
property manager), upon completion, except as otherwise permitted in the
tenant's lease. Such alterations include, but are not limited to, any
communication equipment and associated wiring which must meet fire code.
The contractor conducting the modifications and additions must be a
licensed contractor, is subject to all rules and regulations of Landlord
(and Landlord's property manager) while performing work in the Building
and must obtain all necessary permits and approvals prior to commencing
the modifications and additions.
17. No vending machines of any type shall be allowed in tenant space without
the prior written consent of Landlord (or Landlord's property manager).
18. All locks for doors in each tenant's leased areas shall be Building
Standard except as otherwise permitted by Landlord and no tenant shall
place any additional lock or locks on any door in its leased area without
Landlord's (or Landlord's property manager's) written consent except as
otherwise permitted in such tenant's lease. All requests for duplicate
keys shall be made to Landlord (or Landlord's property manager).
19. No tenant shall interfere in any way with other tenants' (or their
visitors') quiet enjoyment of their leased premises.
20. Landlord (or Landlord's property manager) will not be liable or
responsible for lost or stolen money, jewelry or other personal property
from any tenant's leased area or public areas of the Building or Project.
21. No machinery of any kind other than normal office equipment shall be
operated by any tenant in its leased area without the prior written
consent of Landlord (or Landlord's property manager).
22. Canvassing, peddling, soliciting and distribution of hand bills in the
Building (except for activities within a tenant's leased premises which
involve only such tenant's employees) is prohibited. Each tenant is
requested to notify Landlord (or Landlord's property manager) if such
activities occur.
R-3
23. A "Tenant Contractor Entrance Authorization" form [to be supplied by
Landlord (or Landlord's property manager)] will be required for the
following:
A. Access to Building mechanical, telephone or electrical rooms (e.g.,
Southwestern ▇▇▇▇ Telephone employees).
B. After-hours freight elevator use.
C. After-hours building access by tenant's contractors. Please note that
the tenant will be responsible for contacting Landlord's property manager
in advance for clearance of such tenant contractors.
All tenants will refer all contractors, contractors' representatives and
installation technicians tendering any service to them to Landlord for
Landlord's supervision, approval and control before the performance of any
contractual services. This provision shall apply to all work performed in
the Building (other than work under contract for installation or
maintenance of security equipment or banking equipment), including, but
not limited to, installations of telephones, telegraph equipment,
electrical devices and attachments, and any and all installations of every
nature affecting floors, walls, woodwork, trim, windows, ceilings,
equipment and any other physical portion of the Building.
24. Smoking is not permitted in tenant lease space, nor in entrances to the
building, restrooms, stairwells, elevators, public lobbies or public
corridors.
25. Each tenant and their contractors are responsible for removal of trash
resulting from large deliveries or move-ins. Such trash must be removed
from the Building and Building facilities may not be used for dumping. If
such trash is not promptly removed, Landlord (or Landlord's property
manager) may cause such trash to be removed at the tenant's sole cost and
expense plus a reasonable additional charge to be determined by Landlord
to cover Landlord's administrative costs in connection with such removal.
26. Tenants may not install, leave or store equipment, supplies, furniture or
trash in the common areas of the Building (i.e., outside their leased
premises).
27. Each tenant shall provide Landlord's property manager with names and
telephone numbers of individuals who should be contacted in an emergency.
28. Tenants shall comply with the Building life safety program established by
Landlord (or Landlord's property manager), including without limitation
fire drills, training programs and fire warden staffing procedures, and
shall exercise all reasonable efforts to cause all tenant employees,
invitees and guests to comply with such program.
29. To insure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc., shall be delivered to any leased area
except by persons appointed or approved by Landlord in writing.
R-4
30. Should a tenant require telegraphic, telephonic, annunciator or other
communication service, Landlord will direct the electricians where and how
wires are to be introduced and placed and none shall be introduced or
placed except as Landlord shall approve. Electric current shall not be
used for space heaters, cooking or heating devices or similar appliances
without Landlord's prior written permission.
31. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways.
32. No portion of any tenant's leased area shall at any time be used or
occupied as sleeping or lodging quarters, nor shall personnel occupancy
loads exceed limits reasonably established by Landlord for the Building.
33. The carrying of firearms of any kind in any leased premises, the building
in which such premises are situated, or any related complex of buildings
of which the foregoing are a part, is prohibited except in the case of
unconcealed firearms carried by licensed security personnel hired or
contracted for by tenants for security of their premises as permitted by
such tenants' leases or otherwise consented to by Landlord in writing.
R-5
EXHIBIT S
PRELIMINARY PLANS AND SPECIFICATIONS
---------------------------------------------------------------------------------------------------------------
DATE OF LAST
SHEET NO. DRAWING TITLE PREPARED BY DRAWING REVISION
---------------------------------------------------------------------------------------------------------------
ME1.100 MEP SITE PLAN ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
MEP1.101 MEP ROOF PLAN ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
MEP1.102 MEP PENTHOUSE PLAN ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
M2.100 BASEMENT FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
AREA A - HVAC
---------------------------------------------------------------------------------------------------------------
M2.101 GROUND FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
AREA A - HVAC
---------------------------------------------------------------------------------------------------------------
M2.102 BASEMENT FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
AREA B - HVAC
---------------------------------------------------------------------------------------------------------------
M2.103 SECOND FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
AREA B - HVAC
---------------------------------------------------------------------------------------------------------------
M2.105 TYPICAL FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(4 THRU 14) HVAC
---------------------------------------------------------------------------------------------------------------
M2.106 15TH FLOOR PLAN HVAC ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
M2.107 16TH FLOOR PLAN HVAC ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
M2.108 SHEET TITLE ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
M2.109 BASEMENT PARTIAL PLAN ccrd Partners 17 APRIL 1998 N/A
HVAC CENTRAL PLANT
---------------------------------------------------------------------------------------------------------------
M4.102 HVAC DUCT RISERS ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
M5.101 ENLARGED FAN ROOMS HVAC ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
M6.101 HVAC SCHEDULES ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E2.100 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇/▇
(▇▇▇▇ ▇) - ELECT
---------------------------------------------------------------------------------------------------------------
E2.101 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇/▇
(▇▇▇▇ ▇) - ELECT.
---------------------------------------------------------------------------------------------------------------
E2.102 BASEMENT & GROUND PLANS ccrd Partners 17 APRIL 1998 N/A
(AREA B) ELECT.
---------------------------------------------------------------------------------------------------------------
S-1
---------------------------------------------------------------------------------------------------------------
DATE OF LAST
SHEET NO. DRAWING TITLE PREPARED BY DRAWING REVISION
---------------------------------------------------------------------------------------------------------------
E2.103 SECOND FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(AREA A) - ELECT.
---------------------------------------------------------------------------------------------------------------
E2.104 THIRD FLOOR PLAN - ELECT ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E2.105 TYPICAL FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(4TH-14TH) - ELECTRICAL
---------------------------------------------------------------------------------------------------------------
E2.106 FIFTEENTH FLOOR PLAN - ELECTRICAL ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E2.107 SIXTEENTH FLOOR PLAN - ELECTRICAL ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E2.108 SECOND FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(AREA B) - ELECT.
---------------------------------------------------------------------------------------------------------------
E3.101 SCHEDULE SHEET ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E4.101 ELECTRICAL RISER ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E4.102 ELECTRICAL RISER ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E5.101 ELECTRICAL ROOMS ccrd Partners I7 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E5.102 ELECTRICAL DETAILS ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
P2.106 FIFTEENTH FLOOR PLAN - PLUMBING ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
P2.107 SIXTEENTH FLOOR PLAN - PLUMBING ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
ME1.201 MEP ROOF PLAN ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
ME1.202 MEP ROOF PLAN ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
M2.201 GROUND FLOOR PLAN - HVAC ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
M2.202 SECOND FLOOR PLAN - HVAC ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
▇▇.▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (▇-▇▇) - ▇▇▇▇ ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
M2.204 13TH FLOOR PLAN - HVAC ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
M3.101 CHILLED AND CONDENSER WATER FLOW ccrd Partners 17 APRIL 1998 N/A
DIAGRAM
---------------------------------------------------------------------------------------------------------------
M5.201 ENLARGED FAN ROOMS - HVAC ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
S-2
---------------------------------------------------------------------------------------------------------------
DATE OF LAST
SHEET NO. DRAWING TITLE PREPARED BY DRAWING REVISION
---------------------------------------------------------------------------------------------------------------
M6.201 HVAC SCHEDULES ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E2.201 GROUND FLOOR PLAN - ELECTRICAL ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E2.202 SECOND FLOOR PLAN - ELECTRICAL ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E2.203 TYPICAL FLOOR PLAN ccrd Partners 17 APRIL 1998 N/A
(3RD-12TH) - ELECT.
---------------------------------------------------------------------------------------------------------------
E2.204 THIRTEENTH FLOOR PLAN - ELECTRICAL ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E3.201 SCHEDULE SHEET ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E4.201 ELECT. RISER DIAGRAM ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E5.201 ELECTRICAL ROOMS ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
E5.202 DETAIL SHEET ccrd Partners 17 APRIL 1998 N/A
---------------------------------------------------------------------------------------------------------------
C1.01 PLAT ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
Inc.
---------------------------------------------------------------------------------------------------------------
C1.02 EXISTING TOPOGRAPHY ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
Inc.
---------------------------------------------------------------------------------------------------------------
C1.03 PAVING AND DIMENSION ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
CONTROL PLAN Inc.
---------------------------------------------------------------------------------------------------------------
C1.04 GRADING PLAN ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
Inc.
---------------------------------------------------------------------------------------------------------------
C1.05 DRAINAGE AREA MAP ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
Inc.
---------------------------------------------------------------------------------------------------------------
C1.06 STORM SEWER PLAN ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
Inc.
---------------------------------------------------------------------------------------------------------------
C1.07 COURTYARD STORM SEWER PLAN ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
Inc.
---------------------------------------------------------------------------------------------------------------
C1.08 STORM SEWER PROFILES ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
Inc.
---------------------------------------------------------------------------------------------------------------
C1.09 WATER/WASTE WATER PLAN ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
Inc.
---------------------------------------------------------------------------------------------------------------
C1.10 WATER LINE PROFILES ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
Inc.
---------------------------------------------------------------------------------------------------------------
C1.11 EROSION CONTROL PLAN ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
Inc.
---------------------------------------------------------------------------------------------------------------
C1.12 STORM WATER POLLUTION PREVENTION ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 01 MAY 98 N/A
PLAN Inc.
---------------------------------------------------------------------------------------------------------------
S1.000 GENERAL NOTES ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S-3
---------------------------------------------------------------------------------------------------------------
DATE OF LAST
SHEET NO. DRAWING TITLE PREPARED BY DRAWING REVISION
---------------------------------------------------------------------------------------------------------------
S2.100 FOUNDATION FRAMING PLAN TOWER 1 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Drake 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S2.101 FIRST FLOOR FRAMING PLAN TOWER 1 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S2.102 FOUNDATION & FIRST FLOOR PARTIAL ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Drake 01 MAY 98 N/A
FRAMING PLAN -TOWER 1
---------------------------------------------------------------------------------------------------------------
S2.103 SECOND FLOOR FRAMING PLAN TOWER 1 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S2.104 SECOND FLOOR & LOW ROOF PARTIAL ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Drake 01 MAY 98 N/A
FRAMING PLAN -TOWER 1
---------------------------------------------------------------------------------------------------------------
S2.105 THIRD FLOOR FRAMING PLAN TOWER 1 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S2.106 FOURTH & FIFTH FLOOR ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Drake 01 MAY 98 N/A
FRAMING PLAN TOWER 1
---------------------------------------------------------------------------------------------------------------
S2.107 SIXTH THROUGH FOURTEENTH FLOOR ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 01 MAY 98 N/A
FRAMING PLAN - TOWER 1
---------------------------------------------------------------------------------------------------------------
S2.108 FIFTEENTH FLOOR FRAMING PLAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Drake 01 MAY 98 N/A
TOWER 1
---------------------------------------------------------------------------------------------------------------
S2.109 SIXTEENTH FLOOR FRAMING TOWER 1 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S2.110 ROOF FRAMING PLAN TOWER 1 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Drake 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S3.00 TYPICAL FOUNDATION SECTIONS AND ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 01 MAY 98 N/A
DETAILS
---------------------------------------------------------------------------------------------------------------
S3.01 FOUNDATION SECTIONS OF DETAILS ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Drake 01 MAY 98 N/A
TOWER 1
---------------------------------------------------------------------------------------------------------------
S4.01 CONCRETE SECTIONS & DETAILS ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S4.02 CONCRETE SECTIONS & DETAILS ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Drake 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S5.01 COLUMN SCHEDULE TOWER 1 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S6.01 JOIST AND BEAM SCHEDULES ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Drake 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S6.02 GIRDER SCHEDULE TOWER 1 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 01 MAY 98 N/A
---------------------------------------------------------------------------------------------------------------
S6.03 GIRDER AND WIND BEAM SCHEDULE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Drake 01 MAY 98 N/A
TOWER 1
---------------------------------------------------------------------------------------------------------------
S-4
PROGRESS SET
1 MAY 1998
---------------------------------------------------------------------------------------------------------------
DATE OF LAST
SHEET NO. DRAWING TITLE PREPARED BY DRAWING REVISION
---------------------------------------------------------------------------------------------------------------
A.01 SHEET INDEX HaldemanPowell+Partners 01 MAY 1998 N/A
---------------------------------------------------------------------------------------------------------------
LANDSCAPE DRAWINGS
---------------------------------------------------------------------------------------------------------------
L1.01 LAYOUT & MATERIALS PLAN ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
---------------------------------------------------------------------------------------------------------------
L1.02 LAYOUT & MATERIALS PLAN ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
---------------------------------------------------------------------------------------------------------------
L1.03 LAYOUT & MATERIALS PLAN ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
---------------------------------------------------------------------------------------------------------------
L2.01 GRADING PLAN ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
---------------------------------------------------------------------------------------------------------------
L2.02 GRADING PLAN ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
---------------------------------------------------------------------------------------------------------------
L2.03 GRADING PLAN ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
---------------------------------------------------------------------------------------------------------------
L3.01 PLANTING PLAN ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
---------------------------------------------------------------------------------------------------------------
L3.02 PLANTING PLAN ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
---------------------------------------------------------------------------------------------------------------
L3.03 PLANTING PLAN ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
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L5.01 DETAILS ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
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L5.02 DETAILS ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
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L5.03 DETAILS ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
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L5.04 DETAILS ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
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L5.05 DETAILS ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
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L5.06 DETAILS ▇▇▇▇▇▇ Associates 01 MAY 1998 N/A
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ARCHITECTURAL DRAWINGS
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A1.10 ORIENTATION PLAN HaldemanPowell+Partners 01 MAY 1998 N/A
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A1.11 SITE PLAN HaldemanPowell+Partners 01 MAY 1998 N/A
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ PLAN HaldemanPowell+Partners 01 MAY 1998 N/A
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A2.11 TOWER I -GROUND FLOOR PLAN HaldemanPowell+Partners 01 MAY 1998 N/A
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A2.12 TOWER 1 - SECOND FLOOR PLAN HaldemanPowell+Partners 01 MAY 1998 N/A
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S-5
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DATE OF LAST
SHEET NO. DRAWING TITLE PREPARED BY DRAWING REVISION
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A2.13 TOWER 1 - PARTIAL BASEMENT GROUND HaldemanPowell+Partners 01 MAY 1998 N/A
& 2ND FLOOR PLAN
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇▇▇▇ PLAN HaldemanPowell+Partners 01 MAY 1998 N/A
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A2.15 TOWER 1 - TYPICAL PLAN HaldemanPowell+Partners 01 MAY 1998 N/A
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ PLAN HaldemanPowell+Partners 01 MAY 1998 N/A
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A2.17 TOWER 1- SIXTEENTH FLOOR PLAN HaldemanPowell+Partners 01 MAY 1998 N/A
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇ ▇▇▇▇. PLAN HaldemanPowell+Partners 01 MAY 1998 N/A
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A2.19 TOWER 1- ROOF PLAN HaldemanPowell+Partners 1 MAY 1998 N/A
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A3.10 TOWER 1 - ENLARGED CORE PLANS - HaldemanPowell+Partners 01 MAY 1998 N/A
BASEMENT & GROUND FLOOR
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A3.11 TOWER 1 - ENLARGED CORE PLANS - HaldemanPowell+Partners 01 MAY 1998 N/A
2ND & TYP. FLOOR
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A3.12 TOWER 1 - ENLARGED CORE PLAN - HaldemanPowell+Partners 01 MAY 1998 N/A
15TH/16TH FLOOR &ROOF TERRACE
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A3.13 TOWER 1 - ENLARGED TOILET PLANS HaldemanPowell+Partners 01 MAY 1998 N/A
AND ELEVATIONS
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A3.14 TOWER 1 - PARTITION TYPES HaldemanPowell+Partners 01 MAY 1998 N/A
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A3.15 TOWER 1 - STAIR #1 PLANS & SECTION HaldemanPowell+Partners 01 MAY 1998 N/A
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A3.16 TOWER 1 - STAIR #2 PLANS & SECTION HaldemanPowell+Partners 01 MAY 1998 N/A
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A4.10 NORTH & EAST ELEVATIONS HaldemanPowell+Partners 01 MAY 1998 N/A
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A4.11 SOUTH & WEST ELEVATION HaldemanPowell+Partners 01 MAY 1998 N/A
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A4.12 TOWER 1 - ENLARGED ELEVATIONS HaldemanPowell+Partners 01 MAY 1998 N/A
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A5.10 TOWER 1 - BUILDING SECTIONS HaldemanPowell+Partners 01 MAY 1998 N/A
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A5.11 TOWER 1 - WALL SECTIONS HaldemanPowell+Partners 01 MAY 1998 N/A
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A5.12 TOWER 1 - WALL SECTIONS HaldemanPowell+Partners 01 MAY 1998 N/A
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S-6
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DATE OF LAST
SHEET NO. DRAWING TITLE PREPARED BY DRAWING REVISION
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A5.15 TOWER 1 - ROOF SECTION AND DETAILS HaldemanPowell+Partners 01 MAY 1998 N/A
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A5.16 TOWER 1 - ELEVATOR SECTION HaldemanPowell+Partners 01 MAY 1998 N/A
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A5.17 TOWER 1 - DETAIL WALL SECTIONS HaldemanPowell+Partners 01 MAY 1998 N/A
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A5.18 TOWER 1 - WINDOW WALL & CURTAIN HaldemanPowell+Partners 01 MAY 1998 N/A
WALL SECTIONS
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A5.19 TOWER 1 - WINDOW WALL & CURTAIN HaldemanPowell+Partners 01 MAY 1998 N/A
WALL SECTIONS
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A6.10 TOWER 1 - BASEMENT RCP HaldemanPowell+Partners 01 MAY 1998 N/A
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇ ▇▇▇▇▇ RCP HaldemanPowell+Partners 01 MAY 1998 N/A
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇ ▇▇▇▇▇ RCP HaldemanPowell+Partners 01 MAY 1998 N/A
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A6.13 TOWER 1 - PARTIAL PLANS RCP HaldemanPowell+Partners 01 MAY 1998 N/A
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇▇▇▇ RCP HaldemanPowell+Partners 01 MAY 1998 N/A
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇ ▇▇▇▇▇ RCP HaldemanPowell+Partners 01 MAY 1998 N/A
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ RCP HaldemanPowell+Partners MAY 1998 N/A
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇ ▇▇▇▇▇ RCP HaldemanPowell+Partners MAY 1998 N/A
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▇▇.▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ RCP HaldemanPowell+Partners MAY 1998 N/A
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S-7