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EXHIBIT 10.21
OFFICE LEASE AGREEMENT
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This Lease Agreement (this "Lease") is made this_____ day of________ ,
between DALLAS MAIN CENTER LIMITED PARTNERSHIP, a Delaware limited partnership
(hereinafter called "Landlord"), and AMERICAN PHYSICIAN PARTNERS, INC., a
Delaware corporation a (hereinafter called "Tenant"). This Lease consists of
this paragraph, the Basic Lease Provisions, the Supplemental Lease Provisions
and each exhibit, rider, schedule and addendum attached to the Basic Lease
Provisions and Supplemental Lease Provisions. Each capitalized term used, but
not defined, in the Supplemental Lease Provisions shall have the meaning
assigned to such term in the Basic Lease Provisions.
BASIC LEASE PROVISIONS
1. Building and Property:
a. The "BUILDING" is the office building and related retail shopping
area known as "NATIONSBANK PLAZA" situated on a tract of land in the
City and County of Dallas, Texas, bounded by Main, ▇▇▇▇▇▇▇, Elm and
▇▇▇▇▇ Streets and which is more particularly described in EXHIBIT A
attached hereto, and having a postal address of NationsBank Plaza,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. The "TOWER" includes (i) those
floors of the Building above the ground level, (ii) the ground floor
of the Building, (iii) the Executive Parking Garage (hereinafter
defined), and (iv) the portions of the basement area actually
occupied for office or office-related purposes. The "CONCOURSE" is
the retail shopping and service portion of the Building.
b. The "AGREED RENTABLE AREA OF THE BUILDING" is 1,844,608 square feet.
The "AGREED RENTABLE AREA OF THE TOWER" is 1,800,773 square feet.
c. The Building, the Land, the single level underground parking garage
beneath the Building (the "EXECUTIVE PARKING GARAGE") and the main
parking garage serving the Building and located on the land in the
City and County of Dallas, Texas, bounded by Main, ▇▇▇▇▇, Commerce
and Austin Street (the "PARKING GARAGE" and together with the
Executive Parking Garage, the "PARKING FACILITIES"), all other
improvements located on the land described in EXHIBIT A and on the
land upon which the Parking Garage is located and all appurtenances
to the Building, the Parking Facilities and the Land are referred to
collectively in this Lease as the "PROPERTY".
2. Premises:
a. The "PREMISES" consist of the portion of the portion of the 23rd
floor of the Building, as more particularly described on EXHIBIT B
attached to the Supplemental Lease Provisions.
b. The "AGREED RENTABLE AREA OF THE PREMISES" is 10,475 square feet.
3. a. Basic Rent (See Article 2, Supplemental Lease Provisions):
Rate Per Square Basic Basic
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Foot of Agreed Annual Monthly
Rentable Area Rent Rent
------------- ---- ----
$15.00 $157,125.00 $13,093.75
b. A "MONTHLY ANNIVERSARY OF THE COMMENCEMENT DATE" shall mean the
numeric day of any calendar month that is the same numeric day as
the Commencement Date. The first "LEASE MONTH" shall commence on the
Commencement Date and end on and include the day preceding the first
Monthly Anniversary of the Commencement Date. Each other "LEASE
MONTH" shall commence on a Monthly Anniversary of the Commencement
Date and end on and include the day preceding the next occurring
Monthly Anniversary of the Commencement Date. Each "LEASE YEAR"
shall be twelve (12) Lease Months, but with
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the understandings that the first through fifth Lease Years shall
commence with the first day of the 1st, 13th, 25th, 37th, and 49th
Lease Months, respectively.
c. The "BASIC ANNUAL RENT" is the Basic Rent payable in respect of each
Lease Year. The "BASIC MONTHLY RENT" is the applicable Basic Annual
Rent, divided by 12. The Basic Annual Rent and Basic Monthly Rent
shall be increased at such time as the Premises are expanded in
accordance with the terms of this Lease or by the mutual written
agreement of Landlord and Tenant.
4. "LANDLORD'S ANNUAL OPERATING COSTS CONTRIBUTION" shall be equal to per
square foot Operating Costs (as defined in the Supplemental Lease
Provisions) for the calendar year 1996, MULTIPLIED BY the square feet of
Agreed Rentable Area of the Premises.
5. "LANDLORD'S ANNUAL REAL ESTATE TAXES CONTRIBUTION" shall be equal to the
per square foot Real Estate Taxes (as defined in the Supplemental Lease
Provisions) for the calendar year 1996, MULTIPLIED BY the square feet of
Agreed Rentable Area of the Premises.
6. The "TERM" of this Lease shall be equal to five (5) Lease Years and shall
commence on the Commencement Date (hereinafter defined); provided,
however, if the Commencement Date is a day other than the first day of a
calendar month, the Term shall be automatically extended to and shall
include the last day of the calendar month in which the last day of the
60th Lease Month occurs and Tenant shall pay Basic Monthly Rent and
Additional Rent then in effect.
7. The "COMMENCEMENT DATE" shall be October 12, 1996, but is subject to
adjustment as provided in Section 3 of the Work Letter (herein so called)
attached to the Supplemental Lease Provisions as EXHIBIT D.
8. The "EXPIRATION DATE" shall be the last day of the Term.
9. "SECURITY DEPOSIT": $13,093.75.
10. a. "TENANT'S BROKER": ▇▇▇▇ Partners.
b. "LANDLORD'S BROKER": Premisys Real Estate Services, Inc.
11. "PERMITTED USE: General Office Purposes Only.
12. All payments shall be sent to Landlord in care of Premisys Real Estate
Services, Inc. ("Property Manager") at the address set forth in Item 14
below or such other place as Landlord may designate from time to time.
All payments shall be in the form of check, provided that Landlord shall
have the right to require a different form of payment if Tenant ever
defaults in the payment of rent under this Lease and further provided
that payment by check shall not be deemed made if the check is not duly
honored with good funds.
13. Parking: Tenant shall have the parking rights set forth in EXHIBIT F, if
any, attached to the Supplemental Lease Provisions.
14. Addresses for notices due under this Lease (see Article 14, Supplemental
Lease Provisions):
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TO TENANT: TO LANDLORD FOR PAYMENT OF RENT:
To the Premises DALLAS MAIN CENTER LIMITED PARTNERSHIP
Attention: ▇▇▇▇ ▇▇▇▇▇ c/o Premisys Real Estate Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Accounting Department
TO LANDLORD FOR NOTICES:
DALLAS MAIN CENTER LIMITED PARTNERSHIP
c/o Premisys Real Estate Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Manager
WITH A COPY TO:
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President of Realty Group
Landlord and Tenant are initialing these Basic Lease Provisions in the
appropriate space provided below as an acknowledgment that they are a part of
this Lease.
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LIST OF EXHIBITS AND RIDERS
TO
SUPPLEMENTAL LEASE PROVISIONS
Exhibit A Land Legal Description
Exhibit B Floor Plans
Exhibit C Operating Costs and Exclusions From Operating Costs
Exhibit D Work Letter
Exhibit E Acceptance of Premises Memorandum
Exhibit F Parking Agreement
Exhibit G Rules and Regulations
Exhibit H Hazardous Materials
Exhibit I Right of First Opportunity
Initial:
Landlord:
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September 23, 1996
Tenant:
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TABLE OF CONTENTS
FOR
SUPPLEMENTAL LEASE PROVISIONS
Description Page
ARTICLE 1--TERM AND POSSESSION....................................................................................1
SECTION 1.1 LEASE OF PREMISES, COMMENCEMENT AND EXPIRATION..................................................1
1.101 Lease of Premises.................................................................................1
1.102 Agreed Rentable Area..............................................................................1
1.103 Initial Term and Commencement.....................................................................1
SECTION 1.2 INSPECTION AND DELIVERY OF PREMISES, CONSTRUCTION OF
LEASE SPACE IMPROVEMENTS AND POSSESSION...................................................................1
1.201 Delivery..........................................................................................1
1.202 Tenant's Improvements.............................................................................1
1.203 Acceptance of Premises Memorandum.................................................................2
SECTION 1.3 REDELIVERY OF THE PREMISES.............................................................2
1.301 Obligation to Redeliver...........................................................................2
1.302 Failure to Deliver................................................................................3
SECTION 1.4 HOLDING OVER...........................................................................3
ARTICLE 2--RENT...................................................................................................4
SECTION 2.1 BASIC RENT.............................................................................4
SECTION 2.2 ADDITIONAL RENT........................................................................4
2.201 Definitions.......................................................................................4
2.202 Payment of Additional Rent........................................................................5
2.203 Billing Disputes..................................................................................7
2.204 Revisions in Estimated Additional Rent............................................................8
2.205 Tenant's Audit Right..............................................................................8
SECTION 2.3 RENT DEFINED AND NO OFFSETS...........................................................8
SECTION 2.4 LATE CHARGES...........................................................................8
ARTICLE 3--SECURITY DEPOSIT.......................................................................................9
ARTICLE 4--OCCUPANCY AND USE......................................................................................9
SECTION 4.1 USE OF PREMISES........................................................................9
4.101 General...........................................................................................9
4.102 Hazardous and Toxic Materials....................................................................10
SECTION 4.2 PERMITS...............................................................................10
SECTION 4.3 COMPLIANCE WITH LAWS..................................................................11
4.301 Tenant's Compliance Obligation...................................................................11
4.302 Landlord's Compliance Obligation.................................................................11
SECTION 4.4 RULES AND REGULATIONS................................................................12
SECTION 4.5 ACCESS...............................................................................12
SECTION 4.6 QUIET POSSESSION.....................................................................12
ARTICLE 5--UTILITIES AND SERVICES................................................................................12
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SECTION 5.1 SERVICES TO BE PROVIDED.............................................................12
5.101 Elevator Service.................................................................................12
5.102 Heat and Air Conditioning........................................................................12
5.103 Electricity......................................................................................13
5.104 Water............................................................................................14
5.105 Janitorial Services..............................................................................14
5.106 Common Areas.....................................................................................14
5.107 Bulbs and Ballasts...............................................................................14
5.108 Security Guard and Access System.................................................................15
SECTION 5.2 ADDITIONAL SERVICES..................................................................15
SECTION 5.3 TENANT'S OBLIGATION..................................................................15
SECTION 5.4 SERVICE INTERRUPTION.................................................................15
5.401 SERVICE INTERRUPTION/WAIVER OF LANDLORD LIABILITY................................................15
5.402 Limited Right to Abatement of Rent...............................................................16
SECTION 5.5 MODIFICATIONS........................................................................16
ARTICLE 6--MAINTENANCE, REPAIRS, ALTERATIONS AND IMPROVEMENTS....................................................16
SECTION 6.1 LANDLORD'S OBLIGATION TO MAINTAIN AND REPAIR.........................................16
SECTION 6.2 TENANT'S OBLIGATION TO MAINTAIN AND REPAIR...........................................16
6.201 Tenant's Obligation..............................................................................16
6.202 Rights of Landlord. ............................................................................16
SECTION 6.3 IMPROVEMENTS AND ALTERATIONS.........................................................17
6.301 Landlord's Construction Obligation...............................................................17
6.302 Alteration of Building. ........................................................................17
6.303 Alterations, Additions, Improvements and Installations by Tenant.................................18
6.304 Approvals........................................................................................18
ARTICLE 7--INSURANCE, FIRE AND CASUALTY..........................................................................19
SECTION 7.1 TOTAL OR PARTIAL DESTRUCTION OF THE BUILDING OR THE
PREMISES.................................................................................................19
SECTION 7.2 TENANT'S INSURANCE...................................................................20
7.201 Types of Coverage................................................................................20
7.202 Other Requirements of Insurance..................................................................20
7.203 Proof of Insurance. ............................................................................20
SECTION 7.3 LANDLORD'S INSURANCE.................................................................21
7.301 Types of Coverage................................................................................21
7.302 Self Insurance and Blanket Insurance. ...........................................................21
SECTION 7.4 WAIVER OF SUBROGATION................................................................21
SECTION 7.5 INDEMNITY............................................................................22
7.501 Tenant's Indemnity...............................................................................22
7.502 Landlord's Indemnity. ..........................................................................22
ARTICLE 8--CONDEMNATION..........................................................................................23
SECTION 8.1 CONDEMNATION--CONTINUED USE NOT FEASIBLE.............................................23
SECTION 8.2 TOTAL CONDEMNATION OF PREMISES.......................................................23
SECTION 8.3 CONDEMNATION WITHOUT TERMINATION. ...................................................23
SECTION 8.4 CONDEMNATION PROCEEDS................................................................24
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ARTICLE 9--LIENS.................................................................................................24
ARTICLE 10--TAXES ON TENANT'S PROPERTY...........................................................................24
ARTICLE 11--SUBLETTING AND ASSIGNING.............................................................................25
SECTION 11.1 SUBLEASE AND ASSIGNMENT..............................................................25
11.101 General Prohibition on Assignment and Subleasing...............................................25
SECTION 11.2 LANDLORD'S RIGHTS.....................................................................26
11.201 Landlord's Termination and Consent Rights. ...................................................26
11.202 Effect of Termination..........................................................................27
SECTION 11.3 LANDLORD'S RIGHTS RELATING TO ASSIGNEE OR SUBTENANT...................................28
SECTION 11.4 ASSIGNMENT AND BANKRUPTCY.............................................................29
11.401 Assignments after Bankruptcy...................................................................29
11.402 Bankruptcy of Assignee.........................................................................29
ARTICLE 12--TRANSFERS BY LANDLORD, SUBORDINATION AND
TENANT'S ESTOPPEL CERTIFICATE................................................................................29
SECTION 12.1 SALE OF THE PROPERTY. ..............................................................29
SECTION 12.2 SUBORDINATION, ATTORNMENT AND NOTICE. ...............................................30
SECTION 12.3 TENANT'S ESTOPPEL CERTIFICATE. ......................................................30
ARTICLE 13--DEFAULT..............................................................................................31
SECTION 13.1 DEFAULTS BY TENANT. ................................................................31
13.101 Failure to Pay Rent. .........................................................................31
13.102 Failure to Perform. ..........................................................................31
13.103 Continual Failure to Perform. ................................................................31
13.104 Bankruptcy, Insolvency, Etc. .................................................................31
13.105 Loss of Right to do Business...................................................................32
13.106 Dissolution or Liquidation. ..................................................................32
SECTION 13.2 REMEDIES OF LANDLORD.................................................................32
13.201 Termination of the Lease. ....................................................................32
13.202 Repossession and Re-Entry. ...................................................................33
13.203 Cure of Default. .............................................................................33
13.204 Continuing Obligations. ......................................................................34
SECTION 13.3 DEFAULTS BY LANDLORD. ..............................................................34
SECTION 13.4 LANDLORD'S LIABILITY.................................................................34
13.401 Tenant's Rights in Respect of Landlord Default. ..............................................34
13.402 Certain Limitations on Landlord's Liability. .................................................34
SECTION 13.5 WAIVER OF TEXAS DECEPTIVE TRADE PRACTICES ACT. ......................................35
SECTION 13.6 LANDLORD'S LIEN. ....................................................................35
SECTION 13.7 CUMULATIVE REMEDIES...................................................................36
SECTION 13.8 VACATING PREMISES.....................................................................36
ARTICLE 14--NOTICES..............................................................................................36
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ARTICLE 15--MISCELLANEOUS PROVISIONS.............................................................................36
SECTION 15.1 BUILDING NAME AND ADDRESS. ..........................................................36
SECTION 15.2 SIGNAGE. ............................................................................37
SECTION 15.3 NO WAIVER. ..........................................................................37
SECTION 15.4 APPLICABLE LAW. .....................................................................37
SECTION 15.5 COMMON AREAS, SERVICE CORRIDORS AND SERVICE AREAS.....................................37
SECTION 15.6 SUCCESSORS AND ASSIGNS. .............................................................38
SECTION 15.7 BROKERS. ............................................................................38
SECTION 15.8 SEVERABILITY. .......................................................................38
SECTION 15.9 EXAMINATION OF LEASE. ...............................................................38
SECTION 15.10 INTEREST ON TENANT'S OBLIGATIONS. ...................................................38
SECTION 15.11 TIME. ...............................................................................39
SECTION 15.12 DEFINED TERMS AND MARGINAL HEADINGS. ................................................39
SECTION 15.13 AUTHORITY OF TENANT. ................................................................39
SECTION 15.14 FORCE MAJEURE. ......................................................................39
SECTION 15.15 RECORDING. ..........................................................................39
SECTION 15.16 NO REPRESENTATIONS. .................................................................40
SECTION 15.17 PARKING. ............................................................................40
SECTION 15.18 ATTORNEYS' FEES. ....................................................................40
SECTION 15.19 NO LIGHT, AIR OR VIEW EASEMENT. .....................................................40
SECTION 15.20 RELOCATION. .........................................................................40
SECTION 15.21 SURVIVAL OF INDEMNITIES. ............................................................40
SECTION 15.22 ENTIRE AGREEMENT. ...................................................................40
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SUPPLEMENTAL LEASE PROVISIONS
ARTICLE 1--TERM AND POSSESSION
SECTION 1.1 LEASE OF PREMISES, COMMENCEMENT AND EXPIRATION.
1.101 LEASE OF PREMISES. In consideration of the mutual covenants herein and
subject to all the terms and conditions of this Lease, Landlord hereby
leases, demises and lets to Tenant and Tenant hereby leases and takes
from Landlord, the Premises (herein so called) as described as defined
in Item 2 of the Basic Lease Provisions.
1.102 AGREED RENTABLE AREA. The agreed rentable area of the Premises is hereby
stipulated to be the "Agreed Rentable Area of the Premises" set forth in
Item 2b of the Basic Lease Provisions and shall not be changed for any
reason other than an agreed upon addition or reduction of rentable area
of the Premises after the date hereof. The agreed rentable area of the
Tower and the agreed rentable area of the Building are hereby stipulated
to be the "Agreed Rentable Area of the Tower" and the "Agreed Rentable
Area of the Building", respectively, set forth in Item 1b of the Basic
Lease Provisions and shall not be changed for any reason other than an
agreed upon addition or reduction of rentable area of the Building after
the date hereof.
1.103 INITIAL TERM AND COMMENCEMENT. The initial term of this Lease shall be
the period of time specified in Item 6 of the Basic Lease Provisions.
The initial term shall commence on the Commencement Date set forth in
Item 7 of the Basic Lease Provisions (as such Commencement Date may be
adjusted pursuant to Section 3 of the Work Letter (herein so called)
attached hereto as EXHIBIT D) and, unless sooner terminated pursuant to
the terms of this Lease, the initial term of this Lease shall expire,
without notice to Tenant, on the Expiration Date set forth in Item 8 of
the Basic Lease Provisions.
SECTION 1.2 INSPECTION AND DELIVERY OF PREMISES, CONSTRUCTION OF
LEASE SPACE IMPROVEMENTS AND POSSESSION.
1.201 DELIVERY. Tenant hereby accepts delivery of the Premises. Tenant
acknowledges that Tenant has inspected the Premises and the Common Areas
(as hereinafter defined) and, except for latent defects discovered and
reported to Landlord by Tenant within 180 days from the Commencement
Date and subject to Landlord's obligations under this Lease, hereby (i)
accepts the Common Areas in "as is" condition for all purposes and (ii)
subject to Landlord's completion of its obligations under the Work
Letter, Tenant hereby accepts the Premises (including the suitability of
the Premises for the Permitted Use) for all purposes.
1.202 TENANT'S IMPROVEMENTS. Landlord will perform or cause to be performed
the work and/or construction of Tenant's Improvements (as defined in the
Work Letter) in accordance with the terms of the Work Letter and will
use reasonable efforts to Substantially Complete (as defined in the Work
Letter) Tenant's Improvements by the Commencement Date. If Tenant's
Improvements are not Substantially Complete by the Commencement Date set
forth in Item 7 of the Basic Lease Provisions for any reason whatsoever,
Tenant's sole and exclusive remedy shall be an adjustment of the
Commencement Date to the extent permitted under Section 3 of the Work
Letter.
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1.203 ACCEPTANCE OF PREMISES MEMORANDUM. Upon Substantial Completion (as
defined in the Work Letter) of Tenant's Improvements, Landlord and
Tenant shall execute the Acceptance of Premises Memorandum (herein so
called) attached hereto as EXHIBIT E. If Tenant occupies the Premises
and commences business therein without executing an Acceptance of
Premises Memorandum, Tenant shall be deemed to have accepted the
Premises for all purposes and Substantial Completion shall be deemed to
have occurred on the earlier to occur of (i) actual occupancy or (ii)
the Commencement Date set forth in Item 7 of the Basic Lease Provisions.
SECTION 1.3 DELIVERY OF THE PREMISES.
1.301 OBLIGATION TO REDELIVER. Upon the expiration or earlier termination of
this Lease or upon the exercise by Landlord of its right to re-enter the
Premises pursuant to subsection 13.202 below and subject to Tenant's
remaining obligations under this Section, Tenant shall immediately
deliver to Landlord the Premises free of offensive odors and in a safe,
clean, neat, sanitary and operational condition (ordinary wear and tear
and damage caused by condemnation or casualty excepted), together with
all keys and parking and access cards (it being understood that each
parking card not returned to Landlord shall be treated as a lost card
and Tenant shall pay Landlord an amount determined in accordance with
EXHIBIT F attached to these Supplemental Lease Provisions). Tenant
shall, upon the expiration or earlier termination of this Lease or
Landlord's re-entry of the Premises pursuant to subsection 13.202,
remove from the Premises, at the sole expense of Tenant, all equipment,
appliances, machinery, trade fixtures, furnishings and personalty
installed or placed in the Premises by or on behalf of Tenant.
Notwithstanding the foregoing, if Landlord is exercising its lien rights
against any such equipment, machinery, fixtures, furnishings and
personalty, then Tenant shall not remove same from the Premises. If
requested by Landlord in writing within thirty (30) days after the
expiration or earlier termination of this Lease or Landlord's re-entry
of the Premises pursuant to subsection 13.202, Tenant shall remove all
improvements made to the Premises by or on behalf of Tenant (other than
Tenant's Improvements and Installations approved by Landlord without the
written requirement that same be removed upon expiration or earlier
termination of the Lease) and restore the Premises to the condition
existing prior to the installation of such improvements (ordinary wear
and tear and damage caused by condemnation or casualty excepted). All
removals and work described above shall be accomplished in a good and
workmanlike manner and shall be conducted in a fashion so as not to
damage the Premises or the Building or any portion thereof or the
plumbing, electrical lines or other utilities serving the Building.
Tenant shall, at its expense, promptly repair any damage caused by any
such removal or work. If Tenant fails to deliver the Premises in the
condition aforesaid, then Landlord may restore the Premises to such a
condition at Tenant's expense. All property required to be removed
pursuant to this Section not removed within the time period required
hereunder shall thereupon be conclusively presumed to have been
abandoned by Tenant and Landlord may, at its option, take over
possession of such property and either (x) declare the same to be the
property of Landlord by written notice to Tenant at the address provided
herein or at such other address which Tenant provides to Landlord in
accordance with the provisions of Article
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14 below or (y) at the sole cost and expense of Tenant, remove and store
and/or dispose of the same or any part thereof in any manner that
Landlord shall choose without incurring liability to Tenant or any other
person on account thereof, including damage to such property (EVEN IF
SUCH DAMAGE IS CAUSED BY THE NEGLIGENCE OF LANDLORD, LANDLORD'S MOVERS
OR ANY STORAGE FACILITY).
1.302 FAILURE TO DELIVER. Notwithstanding any provision or inference to the
contrary herein contained, in the event that Tenant fails to deliver to
Landlord (and surrender possession of) all of the Premises upon the
expiration or earlier termination of this Lease (or the applicable
portion of the Premises if this Lease expires or terminates as to only a
portion of the Premises), then Landlord may, without judicial process
and without notice of any kind, immediately enter upon and take absolute
possession of the Premises or applicable portion thereof, expel or
remove Tenant and any other person or entity who may be occupying the
Premises or applicable portion thereof, change the locks to the Premises
or applicable portion thereof(in which event, Tenant shall have no right
to any key for the new locks), limit elevator access to the Premises or
applicable portion thereof, and take any other actions as are necessary
for Landlord to take absolute possession of the Premises or applicable
portion thereof. The foregoing rights are without prejudice and in
addition to, and shall not in any way limit Landlord's rights under,
Section 1.4 below or Landlord's remedies under Article 13 below.
SECTION 1.4 HOLDING OVER. In the event Tenant or any party under Tenant
claiming rights to this Lease, retains possession of the Premises after the
expiration or earlier termination of this Lease without the express written
consent of Landlord (each such retention of possession, a "HOLDOVER"), such
Holdover shall constitute and be construed as a tenancy at will only, subject,
however, to all of the terms, provisions, covenants and agreements on the part
of Tenant hereunder. In the event of any such Holdover, the parties holding
over shall be subject to immediate eviction and removal and Tenant or any such
party shall pay Landlord as rent for the period of such holdover an amount
equal to (i) the greater of the fair market rental value of the Premises (as
reasonably determined by Landlord) or one and one-half (1 1/2) times the Basic
Annual Rent in effect immediately preceding expiration or termination of this
Lease, plus (ii) Additional Rent (as hereinafter defined) in effect immediately
preceding expiration or termination of this Lease. Tenant shall also pay any
and all damages (including, without limitation, consequential damages)
sustained by Landlord as a result of such Holdover. The rent during such
Holdover period shall be payable to Landlord from time to time on demand;
provided, however, if no demand is made during a particular month, holdover
rent accruing during such month shall be paid in accordance with the provisions
of Article 2. No holding over by Tenant, whether with or without consent of
Landlord, shall operate to extend the term of this Lease; no payments of money
by Tenant to Landlord after the expiration or earlier termination of this Lease
shall reinstate, continue or extend the Term of this Lease; and no extension of
this Lease after the expiration or earlier termination thereof shall be valid
unless and until the same shall be reduced to writing and signed by both
Landlord and Tenant. If Landlord elects to cause Tenant to be ejected from the
Premises through judicial process and without in any way limiting Landlord's
rights under subsection 1.302 above, Tenant agrees that Landlord will not be
required to deliver Tenant more than one (1) day's notice to vacate prior to
Landlord's filing a forcible detainer suit. In addition, Tenant agrees that
Landlord shall be entitled to the payment of its reasonable legal fees in the
event that Landlord prevails in a forcible detainer action
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brought by Landlord. Landlord agrees that Tenant shall be entitled to payment
of its reasonable legal fees in the event that Tenant prevails in a forcible
detainer action brought by Landlord.
ARTICLE 2--RENT
SECTION 2.1 BASIC RENT. Tenant shall pay as annual rent for the Premises the
applicable Basic Annual Rent shown in Item 3 of the Basic Lease Provisions. The
Basic Annual Rent shall be payable in monthly installments equal to the
applicable Basic Monthly Rent shown in Item 3 of the Basic Lease Provisions in
advance, without offset, deduction or, except as otherwise expressly provided
herein, demand. The monthly installments of Basic Monthly Rent shall commence
on the Commencement Date and shall continue on the first (1st) day of each
calendar month thereafter. If the Commencement Date occurs on a day other than
the first day of a calendar month or the Expiration Date occurs on a day other
than the last day of a calendar month, the Basic Monthly Rent for such partial
month shall be prorated based on a fraction, the numerator of which shall be
the number of days from the first day of such month through and including the
day of termination and the denominator of which shall be the total number of
days in such month.
SECTION 2.2 ADDITIONAL RENT.
2.201 DEFINITIONS. For purposes of this Lease, the following definitions shall
apply:
(a)"OPERATING COSTS" shall mean costs and expenses that Landlord incurs,
pays or becomes obligated to pay in connection with operating,
maintaining, insuring and managing the Property, computed on an
accrual basis in accordance with generally accepted accounting
principles ("GAAP"), save and except those costs and expenses which
(i) are incurred by Landlord in respect to the Concourse or (ii)
are listed as Exclusions from Operating Costs in EXHIBIT F attached
hereto. Operating Costs shall include, but not be limited to, the
costs described in EXHIBIT F attached hereto as Operating Costs.
"FIXED OPERATING COSTS" shall mean those Operating Costs which, in
the reasonable judgment of Landlord, do not vary with occupancy
levels of the Tower and "VARIABLE OPERATING COSTS" shall mean those
Operating Costs which, in the reasonable judgment of Landlord, do
vary with the occupancy levels of the Tower. "VARIABLE OPERATING
COSTS ATTRIBUTABLE TO All TENANTS" shall mean those Variable
Operating Costs which, in the reasonable judgment of Landlord, are
allocable to all occupied rentable area of the Tower.
(b)"ENERGY COSTS" shall mean the costs incurred by Landlord for (i) any
and all forms of fuel or energy utilized in connection with the
operation, maintenance and use of the Property, (ii) sales, use,
excise and other taxes assessed by governmental authorities on
energy sources, (iii) other costs of providing energy to the
Property, and (iv) the reasonable costs of any and all audits or
reports of energy usage conducted by Landlord or any public utility
for a purpose other than auditing the electrical usage by a
specific tenant, all computed on an accrual basis by Landlord in
accordance with GAAP. "FIXED ENERGY COSTS" shall mean those Energy
Costs which, in the reasonable judgment of Landlord, do not vary
with occupancy levels of the Tower. "VARIABLE ENERGY COSTS" shall
mean those Energy Costs which, in the reasonable judgment of
Landlord, vary with the occupancy levels of the Tower. "VARIABLE
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ENERGY COSTS ATTRIBUTABLE TO ALL TENANTS" shall mean those Variable
Energy Costs which, in the reasonable judgment of Landlord, are
attributable to all occupied rentable area of the Tower.
(c)"REAL ESTATE TAXES" shall mean (i) all real estate taxes, assessments,
excises, and any other governmental levies and charges of every kind and
nature whatsoever, general and special, extraordinary and ordinary,
foreseen and unforeseen, which may during the Term be levied or assessed
against, or arising in connection with the use, occupancy, operation or
possession of the Property or any portion thereof, (ii) any tax,
surcharge or assessment which shall be levied by any authority having
the direct or indirect power to tax as a supplement to or in lieu of
real estate taxes, assessments, excises and other governmental charges
and levies theretofore in existence, (iii) interest on installment
payments of any such real estate taxes, assessments, excises, charges
and levies, and (iv) any rental, excise, sales, transaction, privilege
or other tax or levy, however denominated, imposed upon or measured by
the rental reserved hereunder or on Landlord's business of leasing the
Premises, excepting only Landlord's income, franchise, death, gift and
transfer taxes. In the event that Landlord pays any portion of the
foregoing as rental under a ground lease arrangement with the fee
simple titleholder to the land upon which the Building is, or is to be,
constructed, Landlord shall have the right to include same in Real
Estate Taxes. In no event will Real Estate Taxes include interest or
late charges or other costs attributable to Landlord's failure to pay
taxes prior to delinquency, unless such interest, late charges or
other costs are the result of Landlord's good faith contest of the
amount, validity or applicability of such taxes.
(d)"ADDITIONAL PASS THROUGH COSTS" shall mean the following costs and expenses
incurred by Landlord from and after January 1, 1996: (i) subject
to the limitations of clause (ii) following, the cost of any improvement
made to the Property by Landlord that is required under any governmental
law or regulation which was not promulgated, or which was promulgated
but was not applicable to the Building, at the date of this Lease,
amortized on a straight line basis over its useful life, together with
an amount equal to interest at the rate of ten percent (10%) per annum
(the "AMORTIZATION RATE") on the unamortized balance thereof; (ii) the
cost of any improvement made to the Common Areas of the Property that is
required under interpretations or regulations issued after the
Commencement Date under, or amendments made after the Commencement Date
to, the provisions of Tex. Rev. Civ. Stat. ▇▇▇. art. 9102 and the
provisions of the Americans With Disabilities Act of 1990, 42
U.S.C.ss.ss.12101-12213 (collectively, the "DISABILITY ACTS"), amortized
on a straight-line basis over its useful life, together with an amount
equal to interest at the Amortization Rate on the unamortized balance
thereof; (iii) the cost of any labor-saving or energy-saving device or
other equipment installed in the Building (provided Landlord reasonably
anticipates that the installation thereof will reduce Operating Costs),
amortized on a straight-line basis over its useful life, together with
an amount equal to interest at the Amortization Rate on the unamortized
balance thereof; and (iv) all other capital costs which are amortizable
over a period of five (5) years or less, and which would generally be
viewed as an operating cost.
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2.202 Payment of Additional Rent.
(a) For each calendar year during the Term of this Lease (including any
extensions thereof), Tenant shall (in accordance with the
provisions of paragraphs (c), (d),and (e) of this subsection) pay
to Landlord Additional Rent, which is hereby defined to mean the
following:
(i) the amount by which (a) the sum of the per square foot Fixed
Operating Costs for the applicable calendar year and the per
square foot Variable Operating Costs Attributable to All
Tenants for such calendar year, MULTIPLIED BY the square feet
of Agreed Rentable area of the Premises exceeds (b) Landlord's
Annual Operating Costs Contribution set forth in Item 4 of the
Basic Lease Provisions; plus
(ii) the sum of (a) the per square foot Fixed Energy Costs and the
per square foot Variable Energy Costs Attributable to All
Tenants for the applicable calendar year, multiplied by (b) the
square feet of Agreed Rentable Area of the Premises; plus
(iii) the amount by which the per square foot Real Estate Taxes for
the applicable calendar year MULTIPLIED BY the square feet of
Agreed Rentable Area of the Premises exceeds Landlord's Annual
Real Estate Taxes Contribution; plus
(iv) the per square foot Additional Pass Through Costs for the
applicable calendar year, MULTIPLIED BY the square feet of
Agreed Rentable Area of the Premises, plus
(v) Tenant's Share of Variable Operating and Energy Costs Allocable
to Some Rentable Area (hereinafter defined).
To arrive at the per square foot Fixed Operating Costs and per
square foot Fixed Energy Costs, Landlord will divide the applicable
costs by the Agreed Rentable Area of the Tower. To arrive at the
per square foot Variable Operating Costs Attributable to All
Tenants and Variable Energy Costs Attributable to All Tenants,
Landlord will divide the applicable costs by the average occupied
rentable area of the Tower for the applicable period.
(b) At least thirty (30) days prior to January 1 of each calendar year
during the term of this Lease (or as soon thereafter as is
reasonably possible), Landlord shall give Tenant written notice of
Tenant's reasonably estimated Additional Rent (other than Tenant's
Share of Variable Operating and Energy Costs Allocable to Some
Rentable Area) for the applicable calendar year and the amount of
the monthly installment due for each month during such year.
(c) Tenant shall pay to Landlord on the Commencement Date and on the first
day of each month thereafter the amount of the applicable monthly
installment of Additional
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Rent (other than Tenant's Share of Variable Operating and Energy
Costs Allocable to Some Rentable Area, which shall be controlled by
paragraph (d) following).
(d) Landlord will invoice Tenant monthly for "TENANT'S SHARE OF
VARIABLE OPERATING AND ENERGY COSTS ALLOCABLE TO SOME RENTABLE
AREA", which is hereby defined to mean the sum of Tenant's share of
each Variable Operating Cost and Variable Tower Energy Cost
incurred at the request of Tenant during the applicable month that
is attributable both to a portion (but not all) of the Premises and
to a portion (but not all) of other premises within the Tower.
Tenant's share of each such Variable Operating Cost and each such
Variable Tower Energy Cost shall be equal to the applicable costs,
multiplied by a fraction, the numerator of which shall be the
Agreed Rentable Area of the Premises to which such cost is
attributable and the denominator of which shall be the average
occupied rentable area of the Tower (for the applicable period) to
which such cost is attributable.
(e) Within ninety (90) days after the end of each calendar year, or as soon
thereafter as is reasonably possible, Landlord shall prepare and
deliver to Tenant a statement showing (i) Tenant's actual
Additional Rent for the applicable calendar year, and (ii) a
reasonable breakdown of the component elements in determining such
Additional Rent. Landlord's obligation to deliver such an annual
statement for the year during which this Lease expires or is
terminated shall survive the expiration or earlier termination of
this Lease. If Tenant's monthly payments of Additional Rent are
less than Tenant's actual Additional Rent reflected in the
applicable annual statement, Tenant shall pay the amount of the
underpayment to Landlord within thirty (30) days after such annual
statement is furnished to Tenant. If Tenant's total monthly
payments of Additional Rent for the applicable year are more than
Tenant's actual Additional Rent reflected in the applicable annual
statement, then Landlord shall credit against the next Rent payment
or payments due from Tenant the amount of such overpayment,
provided, however, with respect to the year in which this Lease
expires or is terminated, (i) Tenant's Additional Rent shall be
deemed to be an amount equal to the actual Additional Rent set
forth in the annual statement for such year, multiplied by a
fraction, the numerator of which is the number of days occurring
from and including January 1 of such year and ending on and
including the date of termination and the denominator of which
shall be 365, (ii) Landlord shall forward to Tenant the annual
statement for such year at the same time as Landlord forwards such
annual statement to tenants of the Building, (iii) Landlord shall
pay to Tenant the amount of any overpayment of Additional Rent for
such year (less any amounts Tenant then owes Landlord) within
thirty (30) days after Landlord delivers the annual statement to
Tenant, and (iv) Tenant shall pay Landlord the amount of any
underpayment of Additional Rent for such year within thirty (30)
days after Tenant receives such annual statement. Unless Tenant
takes written exception to any item within ninety (90) days after
the furnishing of an annual statement, such statement shall be
considered as final and accepted by Tenant.
2.203 BILLING DISPUTES. If there exists any dispute as to (i) the amount
of Additional Rent, (ii) whether a particular expense is properly
included in Additional Rent or (iii) Landlord's calculation of Additional
Rent (each an "ADDITIONAL RENT DISPUTE"), the events, errors, acts
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or omissions giving rise to such Additional Rent Dispute shall not
constitute a breach or default by Landlord under this Lease and even if a
judgment resolving the Additional Rent Dispute is entered against
Landlord, this Lease shall remain in full force and effect and Landlord
shall not be liable for any consequential damages resulting from the
event, error, act or omission giving rise to such Additional Rent
Dispute. Notwithstanding the existence of an Additional Rent Dispute,
Tenant shall pay timely the amount of Additional Rent which is in dispute
and will continue to make all subsequent payments of Additional Rent as
and when required under this Lease, provided that the payment of such
disputed amount and other amounts shall be without prejudice to Tenant's
position. If an Additional Rent is resolved in favor of Tenant, Landlord
shall forthwith pay to Tenant the amount of Tenant's overpayment of
Additional Rent, together with interest from the time of such overpayment
at the annual rate of ten percent (10%).
2.204 REVISIONS IN ESTIMATED ADDITIONAL RENT. If Real Estate Taxes,
Insurance Premiums, Utility Expenses or Additional Pass Through Costs
increase during a calendar year or if the number of square feet of
rentable area in the Premises increases, Landlord may revise the
estimated Additional Rent during such year by giving Tenant written
notice to that effect and thereafter Tenant shall pay to Landlord, in
each of the remaining months of such year, an additional amount equal to
the amount of such increase in the estimated Additional Rent divided by
the number of months remaining in such year.
2.205 TENANT'S AUDIT RIGHT. Subject to the remaining terms of this
subsection, if Landlord does not audit the Operating Expenses and other
components of Additional Rent for a given calendar year and Tenant timely
objects to the calculation of the Additional Rent reflected on the
applicable Annual Statement, Tenant shall have the right, at Tenant's
sole cost and expense, to perform an annual audit on Landlord's books and
records which reflect Additional Rent for such year to verify Landlord's
calculation of actual Additional Rent for such prior year, provided that
such audit shall be conducted, if at all, (i) within the ninety (90) days
period following Tenants receipt of the Annual Statement for the
Additional Rent which Tenant elects to audit, (ii) during Landlord's
normal business hours, (iii) at the Property or such other place in
Dallas, Texas where Landlord maintains its records and (iv) only after
Landlord has received thirty (30) days prior written notice. Tenant shall
require its auditors to use reasonable efforts to complete its audit
within thirty (30) days after Landlord makes available its books and
records reflecting the Additional Rent for the applicable calendar
year(s). Tenant shall reimburse Landlord for any actual out-of-pocket
costs incurred by Landlord as result of complying with the requests of
Tenant's auditor. Tenant shall bear the cost of any audit performed on
behalf of Tenant pursuant to this subsection. No audit conducted pursuant
to this paragraph shall be binding on Landlord. If Landlord agrees with
Tenant's audit and such audit reflects that the Additional Rent reflected
in the applicable Annual Statement is more than 105% of the Additional
Rent reflected in Tenant's audit approved by Landlord or if Tenant's
auditor determines that the Additional Rent reflected in the applicable
Annual Statement is more than 105% of the actual Additional Rent that
should have been charged to Tenant for the applicable calendar year and a
final non-appealable judgment agreeing with Tenant's auditor's
determination is entered against Landlord, then in either such event
Landlord will pay the reasonable cost of Tenant's audit.
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SECTION 2.3 RENT DEFINED AND NO OFFSETS. Basic Annual Rent, Additional Rent and
all other sums (whether or not expressly designated as rent) required to be
paid to Landlord by Tenant under this Lease (including, without limitation, any
sums payable to Landlord under any addendum, exhibit, rider or schedule
attached hereto) shall constitute rent and are sometimes collectively referred
to as "Rent". Each payment of Rent shall be paid by Tenant when due, without
deduction, setoff or, except as otherwise expressly provided in this Lease,
prior demand.
SECTION 2.4 LATE CHARGES. If any installment of Basic Annual Rent or Additional
Rent or any other payment of Rent under this Lease shall not be paid when due,
a "Late Charge" of five cents ($.05) per dollar so overdue may be charged by
Landlord to defray Landlord's administrative expense incident to the handling
of such overdue payments. Each Late Charge shall be payable on demand.
ARTICLE 3--SECURITY DEPOSIT
Tenant will pay Landlord on the date this Lease is executed by Tenant the
Security Deposit set forth in Item 9 of the Basic Lease Provisions as security
for the performance of the terms hereof by Tenant. Tenant shall not be entitled
to interest thereon and Landlord may commingle such Security Deposit with any
other funds of Landlord. The Security Deposit shall not be considered an
advance payment of rental or a measure of Landlord's damages in case of default
by Tenant. If Tenant defaults with respect to any provision of this Lease,
Landlord may, but shall not be required to, from time to time, without
prejudice to any other remedy, use, apply or retain all or any part of this
Security Deposit for the payment of any Rent or any other sum in default or for
the payment of any other amount which Landlord may spend or become obligated to
spend by reason of Tenant's default or to compensate Landlord for any other
loss or damage which Landlord may suffer by reason of Tenant's default,
including, without limitation, costs and reasonable attorneys' fees incurred by
Landlord to recover possession of the Premises. If Tenant shall fully and
faithfully perform every provision of this Lease to be performed by it, the
Security Deposit shall be returned to Tenant within thirty (30) days after the
Expiration Date. Tenant agrees that it will not assign or encumber or attempt
to assign or encumber the monies deposited herein as the Security Deposit and
that Landlord and its successors and assigns shall not be bound by any such
actual or attempted assignment or encumbrance. Regardless of any assignment of
this Lease by Tenant, Landlord may return the Security Deposit to the original
Tenant, in the absence of evidence satisfactory to Landlord of an assignment of
the right to receive the Security Deposit or any part of the balance thereof.
ARTICLE 4--OCCUPANCY AND USE
SECTION 4.1 USE OF PREMISES.
4.101 GENERAL. The Premises shall, subject to the remaining provisions of this
Section, be used solely for the Permitted Use (herein so called)
specified in Item 11 of the Basic Lease Provisions. Without in any way
limiting the foregoing, Tenant will not use, occupy or permit the use or
occupancy of the Premises for any purpose (and the Permitted Use shall
not include any use) which is forbidden by or in violation of any law,
ordinance or governmental or municipal regulation, order, or certificate
of occupancy, or which may be dangerous to life, limb or property; or
permit the maintenance of any public or private nuisance; or do or permit
any other thing which may unreasonably disturb the quiet enjoyment of any
other tenant of the Property; or keep any substance or carry on or permit
any operation which
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could be reasonably expected to emit offensive odors or conditions from
the Premises; or commit or suffer or permit any waste in or upon the
Premises; or sell, purchase or give away, or permit the sale, purchase or
gift of food in any form by or to any of Tenant's agents or employees or
other parties in the Premises except through vending machines in employee
lunch or rest areas within the Premises for use by Tenant's employees
only; or use any apparatus which might make undue noise or set up
vibrations in the Building; or permit anything to be done which would
increase the fire and extended coverage insurance rate on the Building or
Building contents and, if there is any increase in such rate by reason of
acts of Tenant, then Tenant agrees to pay such increase upon demand
therefor by Landlord. Payment by Tenant of any such rate increase shall
not be a waiver of Tenant's duty to comply herewith. Tenant shall keep
the Premises neat and clean at all times.
4.102 HAZARDOUS AND TOXIC MATERIALS.
(a) For purposes of this Lease, hazardous or toxic materials shall mean
asbestos containing materials ("ACM") and all other materials,
substances, wastes and chemicals classified as hazardous or toxic
substances, materials, wastes or chemicals under then-current
applicable governmental laws, rules or regulations or that are
subject to any right-to- know laws or requirements.
(b) Tenant shall not knowingly incorporate into, or use or otherwise place
or dispose of any hazardous or toxic materials at or on the
Premises or the Property except for use and storage of cleaning and
office supplies used in the ordinary course of Tenant's business
and then only if (i) such materials are in small quantities,
properly labeled and contained, (ii) such materials are handled and
disposed of in accordance with the generally accepted industry
standards for safety, storage, use and disposal, (iii) notice of
and a copy of the current material safety data sheet is provided to
Landlord for each such hazardous or toxic material and (iv) such
materials are used, transported, stored, handled and disposed of in
accordance with all applicable governmental laws, rules and
regulations. Landlord shall have the right to periodically inspect,
take samples for testing and otherwise investigate the Premises for
the presence of hazardous or toxic materials. Landlord shall not
knowingly dispose of any hazardous or toxic materials on the
Property and shall otherwise deal with all hazardous or toxic
materials at the Property in a manner that will not materially and
adversely affect Tenant's access, use or occupancy of the Premises.
If Landlord or Tenant ever has knowledge of the presence of
hazardous or toxic materials on the Property that affect the
Premises, the party having knowledge shall notify the other party
thereof in writing promptly after obtaining such knowledge.
(c) If Tenant or its employees, agents or contractors shall ever violate
the provisions of paragraph (b) of this subsection 4.102 or
otherwise contaminate the Premises or the Property with hazardous
or toxic materials, then Tenant shall clean-up, remove and dispose
of the material causing the violation, in compliance with all
applicable governmental standards, laws, rules and regulations and
then prevalent industry practice and standards and shall repair any
damage to the Premises or Building within such period of time as
may be reasonable under the circumstances after written notice by
Landlord. Tenant shall notify Landlord of its method, time and
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procedure for any clean-up or removal and Landlord shall have the
right to require reasonable changes in such method, time or
procedure or to require the same to be done after normal business
hours. Tenant's obligations under this subsection 4.102(c) shall
survive the termination of this Lease. Tenant represents to
Landlord that, except as has been disclosed to Landlord, Tenant has
never been cited for or convicted of any hazardous or toxic
materials violations under applicable laws, rules or regulations.
SECTION 4.2 PERMITS. Tenant shall obtain the certificate of occupancy, if any,
required for occupancy of the Premises following construction of Tenant
Improvements. Tenant shall pay for the cost of any such certificate of
occupancy, provided that Tenant shall be entitled to have such cost funded from
the Finish Allowance, if any, provided for in the Work Letter. If any
governmental license or permit shall be required for the proper and lawful
conduct of Tenant's business in the Premises or any part thereof, Tenant, at
its expense, shall procure and thereafter maintain such license or permit.
Additionally, if Tenant's Improvements or any subsequent alteration or
improvement made to the Premises by Tenant or Tenant's use of the Premises
require any modification or amendment of any certificate of occupancy for the
Building or the issuance of any other permit of any nature whatsoever, Tenant
shall, at its expense, take all actions to procure any such modification or
amendment or additional permit.
SECTION 4.3 COMPLIANCE WITH LAWS.
4.301 TENANT'S COMPLIANCE OBLIGATION.
(a) Tenant shall comply with all laws, statutes, ordinances, orders,
permits and regulations (collectively "Laws") affecting (i)
Tenant's use and occupancy of the Premises, (ii) any improvements
constructed within the Building by Tenant or by a party other than
Landlord on behalf of Tenant and (iii) any furniture, fixtures,
equipment, materials or goods installed or placed within the
Building by Tenant or installed or placed within the Building by a
party other than Landlord on behalf of Tenant, provided, however,
Tenant's compliance obligations with respect to the Disability Acts
shall be governed by paragraph (b) following and the applicable
provisions of the Work Letter.
(b) From and after the Commencement Date, Tenant shall be obligated to
see that the Premises comply with all existing requirements of and
regulations issued under the Disability Acts for each of the
following: (i) alterations or improvements to any portion of the
Premises performed after the Commencement Date; (ii) obligations or
complaints arising under or out of Title I of the Americans With
Disabilities Act or Tenant's employer-employee obligations; (iii)
obligations or complaints arising under or out of the conduct or
operations of Tenant's business, including any obligations or
requirements for barrier removal to customers or invitees as a
commercial facility or as a public accommodation (as defined in the
Disability Acts); and (iv) any change in the nature of Tenant's
business, or its employees, or financial net worth, or Tenant's
business operations that triggers an obligation under the
Disability Acts.
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(c) If any Law with which Tenant is required to comply pursuant to this
Lease is violated, Tenant shall take such corrective action as is
necessary to cause compliance.
4.302 LANDLORD'S COMPLIANCE OBLIGATION.
(a) Except for Laws with which Tenant is required to comply under
subsection 4.301, Landlord shall comply with all laws, statutes,
ordinances, orders and regulations (including, without limitation,
environmental laws) (i) relating to the Property and (ii)
non-compliance with which would materially and adversely affect
Tenant's access to use or occupancy of the Premises.
(b) From and after the Commencement Date, Landlord shall cause the Common
Areas to comply with the Disability Acts.
SECTION 4.4 RULES AND REGULATIONS. Tenant will comply with such rules and
regulations (the "RULES AND REGULATIONS") generally applying to tenants in the
Building as may reasonably be adopted from time to time by Landlord for the
management, safety, care and cleanliness of, and the preservation of good order
and protection of property in, the Premises and the Building and at the
Property. All such Rules and Regulations are hereby made a part hereof. The
Rules and Regulations in effect on the date hereof are attached hereto as
EXHIBIT G. All changes and amendments to the Rules and Regulations sent by
Landlord to Tenant in writing and conforming to the foregoing standards shall
be carried out and observed by Tenant. Landlord hereby reserves all rights
necessary to implement and enforce the Rules and Regulations and each and every
provision of this Lease.
SECTION 4.5 ACCESS. Without being deemed guilty of an eviction of Tenant and
without abatement of Rent, Landlord and its authorized agents shall have the
right to enter the Premises, upon reasonable notice, to inspect the Premises,
to show the Premises to prospective lenders or purchasers or, during the last
six months of the term of the term of this Lease, prospective tenants and to
fulfill Landlord's obligations or exercise its rights (including without
limitation Landlord's Reserved Right [as hereinafter defined]) under this
Lease. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises and any other loss occasioned thereby. For
each of the aforesaid purposes, Landlord shall at all times have and retain a
key with which to unlock the doors to and within the Premises, excluding
Tenant's vaults and safes. Landlord shall have the right to use any and all
means which Landlord may deem proper to enter the Premises in an emergency
without liability therefor.
SECTION 4.6 QUIET POSSESSION. Provided Tenant timely pays Rent and observes and
performs all of the covenants, conditions and provisions on Tenant's part to be
observed and performed hereunder, Tenant shall have the quiet possession of the
Premises for the entire term hereof, subject to all of the provisions of this
Lease and all deeds of trust, mortgages, security agreements, laws and
restrictive covenants (provided Tenant has been delivered a copy of such
restrictive covenants) which now or hereafter affect the Property.
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ARTICLE 5--UTILITIES AND SERVICES
SECTION 5.1 SERVICES TO BE PROVIDED.
Landlord agrees to furnish or cause to be furnished to the Premises, the
utilities and services described in subsections 5.101 through 5.107 below,
subject to all other provisions of this Lease.
5.101 ELEVATOR SERVICE. Except for Recognized Holidays (as defined in the Rules
and Regulations) and emergencies, Landlord shall provide during Normal
Business Hours (as defined in the Rules and Regulations) automatic
passenger elevator facilities to all floors of the Building and have at
least one (1) passenger elevator available for use to all floors of the
Building at all other times (including Recognized Holidays).
5.102 HEAT AND AIR CONDITIONING. Except for Recognized Holidays and
emergencies, Landlord shall during Normal Business Hours ventilate the
Premises and furnish heat or air conditioning, at such temperatures and
in such amounts as is customary in buildings of comparable size, quality
and in the general vicinity of the Building, with such adjustments as
Landlord reasonably deems necessary for the comfortable occupancy of the
Premises, subject to events of force majeure and any governmental
requirements, ordinances, rules, regulations, guidelines or standards
relating to, among other things, energy conservation. Upon request and
provided Tenant is not then in breach of its obligation to pay Rent as
and when required hereunder, Landlord shall make available, at Tenant's
expense, after hours heat or air conditioning. The minimum charge and the
hourly rate for the use of after hours heat or air conditioning shall be
determined from time to time by Landlord and confirmed in writing to
Tenant.
5.103 ELECTRICITY.
(a) Landlord shall furnish to the Premises electric current not in excess
of that required by the office lighting and receptacles included in
Tenant's Improvements, provided, however, Tenant shall be solely
responsible for the costs of electrical consumption (without
duplication) (i) by equipment which requires a voltage other than
120 volts single phase, (ii) in excess of that currently supplied
to the Premises or (iii) by any single piece of equipment in excess
of 0.5 kilowatts at rated capacity (any such consumption, "EXCESS
CONSUMPTION" and the costs of such Excess Consumption, "EXCESS
CONSUMPTION COSTS").
(b) Landlord may, from time to time, engage a reputable consultant to
conduct a survey of electrical usage within the Premises or install
one or more submeters to measure electrical usage within the
Premises or a particular floor of the Premises. If the survey or
submeters reflect Excess Consumption, then (i) Tenant shall be
responsible for the costs of any such surveys and submeters, (ii)
Landlord shall have the right to install permanent submeters to
measure the electrical consumption within the Premises (which
permanent submeters shall constitute a part of Tenant's Submeters,
as hereinafter defined), and (iii) Tenant shall pay for the cost of
acquiring, maintaining, repairing and reading such submeters.
(c) Tenant shall not (i) without the express prior written consent of
Landlord (which consent shall not be unreasonably withheld) install
or use or permit the installation or use of
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any computer or electronic data processing equipment or any other
electrical equipment which (singly) consumes more than 0.5
kilowatts at rated capacity or requires a voltage other than 120
volts single phase or otherwise has high electrical consumption,
(ii) use electric current in excess of the capacity of the feeders
or lines to the Building or the risers or wiring installation of
the Building or the Premises, or (iii) without the prior written
consent of Landlord (which consent shall not be unreasonably
withheld) install any electrical plugs, connections or outlets
which supply a voltage greater than 120 volts single phase. As a
condition to obtaining Landlord's consent to any equipment
described in clause (i) or any plugs, connections or outlets
described in clause (iii), Tenant shall arrange for the
installation of a permanent submeter (all submeters installed as
part of or in connection with Tenant's Improvements or
Installations or pursuant to this paragraph are herein collectively
referred to as "TENANT'S SUBMETERS"), at Tenant's expense, to
measure the electrical power consumed by the equipment and/or
machinery hooked or plugged into such plugs, connections or
outlets. Without in any way limiting the meaning of reasonable,
Landlord shall be deemed to have reasonably withheld its consent to
the matters described in clauses (i) and (ii) if the installation
of the applicable equipment or the use of the plugs, outlets or
connections could, in Landlord's judgment, interfere with
Landlord's ability to provide Building standard electricity to any
other tenant of the Building or Landlord's ability to fulfill any
of its obligations under any other lease.
(d) On or about the first day of each month thereafter during the Term of
this Lease, Landlord will, at Tenant's cost, read Tenant's
Submeters and record such readings for purposes of determining
Metered Electrical Expenses pursuant to paragraph (e) immediately
following. Landlord will maintain and repair Tenant's Submeters, at
Tenant's cost.
(e) The cost of electricity consumed within each separately metered
portion of the Premises and by each separately metered piece of
equipment within the Premises ("METERED ELECTRICAL EXPENSES") shall
be equal to the sum of (i) the kilowatts of electricity consumed
within the separately metered portions of the Premises (as measured
by the applicable Tenant's Submeters) during the applicable month
(or other applicable period) and (ii) the kilowatts of electricity
consumed by each separately metered equipment within the Premises
(as measured by the applicable Tenant's Submeters), MULTIPLIED BY
(iii) the cost per kilowatt of electricity charged to Landlord by
the public utility for electricity consumed within the Building
during the applicable month (or other applicable period). Landlord
may, from time to time, invoice Tenant for Metered Electrical
Expenses (as well as any Excess Consumption Costs determined by a
reputable consultant) and Tenant shall, within ten (10) days after
receiving an invoice therefor, pay Landlord the amount of the
Metered Electrical Expenses (and/or, as applicable, any Excess
Consumption Costs determined by a reputable consultant) covered by
such invoice. Each such invoice submitted by Landlord to Tenant
shall include (i) the period of consumption covered by such
invoice, (ii) the beginning and ending readings for each of
Tenant's Submeters for such period, (iii) Landlords calculation of
the Metered Electrical Expenses covered
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by such invoice, and (iv) if applicable, the independent electrical
consultant's calculation of Excess Consumption and the Excess
Consumption Costs.
5.104 WATER. Landlord shall furnish water for drinking, cleaning and lavatory
purposes only.
5.105 JANITORIAL SERVICES. Landlord shall provide janitorial services to the
Premises, comparable to that provided in other office buildings of
similar size, quality and in the general vicinity of the Building,
provided the Premises are used exclusively as offices and further
provided Tenant complies with subsection 6.201 below.
5.106 COMMON AREAS. Landlord shall perform routine maintenance in the Common
Areas (hereinafter defined) and otherwise maintain the Common Areas in a
state of repair that is comparable to that provided in other comparable
buildings in the general vicinity of the portion of the Dallas Central
Business District in which the Building is located, but in no event will
the foregoing standard be interpreted to require Landlord to perform
renovations of or make capital improvements to the Common Areas (other
than those in the nature of repairs).
5.107 BULBS AND BALLASTS. Landlord shall provide Building standard bulbs and
ballasts as necessary in the Premises. Landlord shall also provide
non-building standard bulbs and ballasts provided Tenant shall pay the
cost thereof, together with an administrative fee equal to ten percent
(10%) of such cost. All amounts due under this subsection for such
non-building standard bulbs shall be paid to Landlord within thirty (30)
days after receipt of an invoice therefor.
5.108 SECURITY GUARD AND ACCESS SYSTEM. Landlord shall provide Building
standard security to the Property on a 24-hour basis on all days of the
year, which security may include limited access entry cards to the
Building and Parking Facilities and security personnel in stationary
locations or in mobile patrols. Tenant acknowledges that the security
services to be provided by Landlord hereunder are not a guaranty or a
representation of the safety of Tenant or Tenant's employees, invitees,
guests or any other person or of any property, or that the Property is
secure.
SECTION 5.2 ADDITIONAL SERVICES. Landlord may impose a reasonable charge for
any utilities and services, including without limitation, air conditioning,
electrical current and water, provided by Landlord by reason of any use of the
services at any time other than the hours set forth in subsection 5.102 above
or beyond the levels or quantities that Landlord agrees herein to furnish or
because of special electrical, cooling or ventilating needs created by Tenant's
hybrid telephone equipment, computers or other equipment. In no event will
Landlord be required to provide any additional services if Tenant is in breach
of its obligation to pay any Rent hereunder as and when due and payable.
SECTION 5.3 TENANT'S OBLIGATION. Tenant agrees to cooperate fully at all times
with Landlord and to abide by all regulations and requirements which Landlord
reasonably prescribes for the use of the above utilities and services.
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SECTION 5.4 SERVICE INTERRUPTION.
5.401 SERVICE INTERRUPTION/WAIVER OF LANDLORD LIABILITY. LANDLORD SHALL NOT BE
LIABLE FOR AND, EXCEPT AS PROVIDED IN SUBSECTION 5.402 BELOW, TENANT
SHALL NOT BE ENTITLED TO ANY ABATEMENT OR REDUCTION OF RENT BY REASON OF
LANDLORD'S FAILURE TO MAINTAIN TEMPERATURE OR ELECTRICAL CONSTANCY LEVELS
OR TO FURNISH ANY OF THE FOREGOING SERVICES when such failure is caused
by accident, breakage, repairs, strikes, lockouts or other labor
disturbance or labor dispute of any character, governmental regulation,
moratorium or other governmental action, inability to obtain electricity,
water or fuel, or by any cause beyond Landlord's reasonable control
(collectively, "UNCONTROLLABLE EVENTS"), NOR SHALL ANY SUCH
UNCONTROLLABLE EVENT OR RESULTS OR EFFECTS THEREOF BE CONSTRUED AS AN
EVICTION (CONSTRUCTIVE OF ACTUAL) OF TENANT OR AS A BREACH OF THE IMPLIED
WARRANTY OF SUITABILITY, OR RELIEVE TENANT FROM THE OBLIGATION TO PERFORM
ANY COVENANT OR AGREEMENT HEREIN AND IN NO EVENT SHALL LANDLORD BE LIABLE
FOR DAMAGE TO PERSONS OR PROPERTY (INCLUDING, WITHOUT LIMITATION,
BUSINESS INTERRUPTION) OR BE IN DEFAULT HEREUNDER, AS A RESULT OF ANY
SUCH UNCONTROLLABLE EVENT OR RESULTS OR EFFECTS THEREOF.
5.402 LIMITED RIGHT TO ABATEMENT OF RENT. If any portion of the Premises
becomes unfit for occupancy and Tenant vacates such portion of the
Premises because Landlord fails to deliver any service as required under
Section 5.1 above for any period (other than a reconstruction period
conducted pursuant to Section 7.1 or Article 8 below) exceeding ten (10)
consecutive days after written notice by Tenant to Landlord and provided
such failure is not caused by Tenant, Tenant's Contractors or any of
their respective agents or employees, Tenant shall be entitled to a fair
partial abatement of Basic Annual Rent and Additional Rent for any such
portion of the Premises from the expiration of such ten (10) day period
until such portion is again fit for occupancy.
SECTION 5.5 MODIFICATIONS. Notwithstanding anything herein to the contrary,
Landlord reserves the right from time to time to make reasonable modifications
to the above standards for utilities and services.
ARTICLE 6--MAINTENANCE, REPAIRS, ALTERATIONS AND IMPROVEMENTS
SECTION 6.1 LANDLORD'S OBLIGATION TO MAINTAIN AND REPAIR. Subject to Sections
7.1 and 7.4 and Article 8 below, Landlord shall, at Landlord's cost and expense
(but subject to Landlord's rights under Section 2.2 above) maintain and repair
the exterior walls and windows and roof and load bearing elements of the
Building. Except for load bearing elements of the Building located within the
Premises, Landlord shall not be required to maintain or repair any portion of
the Premises.
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SECTION 6.2 TENANT'S OBLIGATION TO MAINTAIN AND REPAIR.
6.201 TENANT'S OBLIGATION. Subject to Sections 6.1, 7.1 and 7.4 and Article 8
of this Lease, Tenant shall, at Tenant's sole cost and expense, (i)
maintain and keep the interior of the Premises (including, but not
limited to, all fixtures, walls, ceilings, floors, doors, windows [except
replacement of exterior plate glass], appliances and equipment which are
a part of the Premises) in good repair and condition, (ii) repair or
replace any damage or injury done to the Building or any other part of
the Property caused by Tenant, Tenant's agents, employees, licensees,
invitees or visitors or resulting from a breach of its obligations under
this Section 6.2 and (iii) indemnify and hold Landlord harmless from, and
reimburse Landlord for and with respect to, any and all costs, expenses
(including reasonable attorneys' fees), claims and causes of action
arising from or incurred by and/or asserted in connection with such
maintenance, repairs, replacements, damage or injury. All maintenance,
repairs and replacements performed by or on behalf of Tenant shall be
performed in a good and workmanlike manner and in accordance with the
standards applicable to alterations or improvements performed by Tenant.
Tenant shall continue to pay Rent, without abatement, during any period
that maintenance, repairs or replacements are performed or required to be
performed by Tenant under this Section 6.2.
6.202 RIGHTS OF LANDLORD. Landlord shall have the same rights with respect to
maintenance, repairs and/or replacements performed by Tenant as Landlord
has with respect to Installations performed by Tenant under subsection
6.303 below. In the event Tenant fails, in the reasonable judgment of
Landlord, to maintain the Premises in good order, condition and repair,
or otherwise satisfy its maintenance, repair and replacement obligations
under subsection 6.201 above, Landlord shall have the right to perform
such maintenance, repairs and replacements at Tenant's expense. Tenant
shall pay to Landlord on demand any such cost or expense incurred by
Landlord, together with interest thereon at the rate specified in Section
15.10 below from the date of demand until paid and an administrative fee
equal to ten percent (10%) of the costs incurred by Landlord.
SECTION 6.3 IMPROVEMENTS AND ALTERATIONS.
6.301 LANDLORD'S CONSTRUCTION OBLIGATION. Without in any way limiting
Landlord's other obligations under this Lease, Landlord's sole
construction obligation under this Lease is as set forth in the Work
Letter.
6.302 ALTERATION OF BUILDING. LANDLORD HEREBY RESERVES THE RIGHT AND AT ALL
TIMES SHALL HAVE THE RIGHT TO REPAIR, CHANGE, REDECORATE, ALTER, IMPROVE,
MODIFY, RENOVATE, ENCLOSE OR MAKE ADDITIONS TO ANY PART OF THE PROPERTY
(INCLUDING, WITHOUT LIMITATION, STRUCTURAL ELEMENTS AND LOAD BEARING
ELEMENTS WITHIN THE PREMISES) AND TO ENCLOSE AND/OR CHANGE THE
ARRANGEMENT AND/OR LOCATION OF DRIVEWAYS OR PARKING AREAS OR LANDSCAPING
OR OTHER COMMON AREAS OF THE PROPERTY, ALL WITHOUT BEING HELD GUILTY OF
AN ACTUAL OR CONSTRUCTIVE EVICTION OF TENANT OR BREACH OF THE IMPLIED
WARRANTY OF SUITABILITY AND WITHOUT AN ABATEMENT OF RENT (THE "RESERVED
RIGHT"). WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING,
LANDLORD'S RESERVED RIGHT SHALL INCLUDE, BUT NOT
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BE LIMITED TO THE RIGHT TO DO ANY OF THE FOLLOWING: (i) erect and
construct scaffolding, pipe, conduit and other structures on and within
and outside of the Premises where reasonably required by the nature of
the changes, alterations, improvements, modifications, renovations
and//or additions being performed, (ii) perform within and outside of the
Premises all work and other activities associated with such changes,
alterations, improvements, modifications, renovations and/or additions
being performed, (iii) repair, change, renovate, remodel, alter, improve,
modify or make additions to the arrangement, appearance, location and/or
size of entrances or passageways, doors and doorways, corridors,
elevators, elevator lobbies, stairs, toilets or other Common Areas or
Service Areas, (iv) temporarily close any Common Area and/or temporarily
suspend Building services and facilities in connection with any repairs,
changes, alterations, modifications, renovations or additions to any part
of the Building, (v) repair, change, alter or improve plumbing, pipes and
conduits located in the Building, including without limitation, those
located within the Premises, the Common Areas, the Service Corridors or
the Service Areas (hereinafter defined) of the Building and (vi) repair,
change, modify, alter, improve, renovate or make additions to the
Building central heating, ventilation, air conditioning, electrical,
mechanical or plumbing systems. When exercising the Reserved Right,
Landlord will interfere with Tenant's use and occupancy of the Premises
as little as is reasonably practicable. Tenant shall be entitled to a
fair and reasonable diminution of Rent during the period and to the
extent that the Premises are (i) unsuitable for use to conduct Tenant's
normal business operation and (ii) not used by Tenant on account of such
unsuitability for more than ten (10) consecutive days, provided that if
the interruption in use is not caused by casualty, condemnation or
applicable laws, then such ten (10) period shall be reduced to five (5)
consecutive days.
6.303 ALTERATIONS, ADDITIONS, IMPROVEMENTS AND INSTALLATIONS BY TENANT.
Tenant shall not, without the prior written consent of Landlord, make any
changes, modifications, alterations, additions or improvements (other
than Tenant's Improvements under the Work Letter) to, or install any
equipment or machinery (other than office equipment and unattached
personal property) on, the Premises (all such changes, modifications,
alterations, additions, improvements (other than Tenant's Improvements
under the Work Letter) and installations approved by Landlord are herein
collectively referred to as "INSTALLATIONS") if any such Installations
would (i) affect any structural or load bearing portions of the Building,
(ii) result in a material increase of electrical usage above the normal
type and amount of electrical current to be provided by Landlord, (iii)
result in an increase in Tenant's usage of heating or air conditioning,
(iv) impact mechanical, electrical or plumbing systems in the Premises or
the Building, (v) affect areas of the Premises which can be viewed from
Common Areas, (vi) require greater or more difficult cleaning work (e.g.,
kitchens, reproduction rooms and interior glass partitions), (vii)
adversely affect Landlord's ability to deliver Building services to other
tenants of the Building or (viii) violate any provision in Article 4
above. As to Installations not covered by the preceding sentence, Tenant
will not perform same without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. All
Installations shall be at Tenant's sole cost and expense. Without in any
way limiting Landlord's consent rights, Landlord shall not be required to
give its consent until (a) Landlord approves the contractor or person
making such Installations and approves such contractor's insurance
coverage to be provided in connection with the work, (b) if plans and
specifications are reasonably required for the performance of the
applicable work, Landlord
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approves final and complete plans and specifications for such work and
(c) the appropriate governmental agency, if any, has approved the plans
and specifications for such work. All work performed by Tenant or its
contractor relating to the Installations shall conform to applicable
governmental laws, rules and regulations, including, without limitation,
the Disability Acts. Upon completion of the Installations for which plans
and specifications are required, Tenant shall deliver to Landlord "as
built" plans. If Landlord performs such Installations, Tenant shall pay
Landlord, as additional Rent, the cost thereof plus ten percent (10%) as
reimbursement for Landlord's overhead. Each payment shall be made to
Landlord within thirty (30) days after receipt of an invoice from
Landlord. All Installations (other than Tenant's trade fixtures) that
constitute improvements constructed within the Premises shall be
surrendered with the Premises at the expiration or earlier termination of
this Lease, unless Landlord requests that same be removed pursuant to
Section 1.3 above. Tenant shall indemnify and hold Landlord harmless
from, and reimburse Landlord for and with respect to, any and all costs,
expenses (including reasonable attorneys' fees), demands, claims, causes
of action and liens arising from or in connection with any Installations
performed by or on behalf of Tenant.. All Installations performed by or
on behalf of Tenant will be performed diligently and in a first-class
workmanlike manner and in compliance with all applicable laws,
ordinances, regulations and rules of any public authority having
jurisdiction over the Building and/or Tenant's and Landlord's insurance
carriers. Landlord will have the right, but not the obligation, to
inspect periodically the work on the Premises and may require reasonable
changes in the method or quality of the work.
6.304 APPROVALS. Any approval by Landlord (or Landlord's architect and/or
engineers) of any of Tenant's contractors or Tenant's drawings, plans or
specifications which are prepared in connection with any construction of
improvements (including without limitation, Tenant's Improvements) in the
Premises shall not in any way be construed as or constitute a
representation or warranty of Landlord as to the abilities of the
contractor or the adequacy or sufficiency of such drawings, plans or
specifications or the improvements to which they relate, for any use,
purpose or condition.
ARTICLE 7--INSURANCE, FIRE AND CASUALTY
SECTION 7.1 TOTAL OR PARTIAL DESTRUCTION OF THE BUILDING OR THE PREMISES. In
the event that the Building should be totally destroyed by fire or other
casualty or in the event the Building (or any portion thereof) should be so
damaged that rebuilding or repairs cannot be completed, in Landlord's
reasonable opinion, within one hundred eighty (180) days after commencement of
repairs to the Building, Landlord may, at its option, terminate this Lease, in
which event Basic Annual Rent and Additional Rent shall be abated during the
unexpired portion of this Lease effective with the date of such damage.
Landlord shall exercise the termination right pursuant to the preceding
sentence, if at all, by delivering written notice of
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termination to Tenant within ten (10) days after determining that the repairs
cannot be completed within such one hundred eighty (180) day period. In the
event that the Premises should be so damaged by fire or other casualty that
rebuilding or repairs cannot be completed, in Landlord's reasonable opinion,
within one hundred eighty (180) days after the commencement of repairs to the
Premises, Tenant may, at its option terminate this Lease, in which event Basic
Annual Rent and Additional Rent shall be abated during the unexpired portion of
this Lease, effective the date of termination. Tenant shall exercise the
termination right pursuant to the preceding sentence, if at all, by delivering
written notice of termination to Landlord within ten (10) days after being
advised by Landlord that the repairs cannot be completed within such one
hundred eighty (180) day period. In the event the Building or the Premises
should be damaged by fire or other casualty and, in Landlord's reasonable
opinion, the rebuilding or repairs can be completed within one hundred eighty
(180) days after the commencement of repairs to the Building or Premises, as
applicable, or if the damage should be more serious but neither Landlord nor
Tenant elect to terminate this Lease pursuant to this Section, in either such
event Landlord shall, within sixty (60) days after the date of such damage,
commence (and thereafter pursue with reasonable diligence) repairing the
Building and the Premises (including Tenant's Improvements), but only to the
extent of insurance proceeds actually received by Landlord for such repairs, to
substantially the same condition which existed immediately prior to the
happening of the casualty. In no event shall Landlord be required to rebuild,
repair or replace any part of the furniture, equipment, fixtures, inventory,
supplies or any other personalty or any other improvements (except Tenant's
Improvements to the extent set forth in the preceding sentence), which may have
been placed by Tenant within the Building or at the Premises. Landlord shall
allow Tenant a fair diminution of Basic Annual Rent and Additional Rent during
the time the Premises are unfit for the conduct of Tenant's business; provided,
that if such casualty was caused primarily by Tenant, its agents, employees,
licensees, contractors or invitees, Basic Annual Rent and Additional Rent shall
be abated only to the extent Landlord is compensated for such Basic Annual Rent
and Additional Rent by loss of rents insurance, if any. Notwithstanding
Landlord's restoration obligation, in the event any mortgagee under a deed of
trust, security agreement or mortgage on the Building should require that the
insurance proceeds be used to retire or reduce the mortgage debt or if the
insurance company issuing Landlord's fire and casualty insurance policy fails
or refuses to pay Landlord the proceeds under such policy, Landlord shall have
no obligation to rebuild and this Lease shall terminate upon notice by Landlord
to Tenant. Subject to the provisions of subsection 7.201(c) below, any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building or to the Premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
SECTION 7.2 TENANT'S INSURANCE.
7.201 TYPES OF COVERAGE. Tenant covenants and agrees that from and after the
date which is ten (10) days prior to Tenant's occupancy of the Premises,
Tenant will carry and maintain, at its sole cost and expense, the
insurance set forth in paragraphs (a), (b) and (c) of this subsection.
(a) Commercial General Liability Insurance covering the Premises and
Tenant's use thereof against claims for personal or bodily injury
or death or property damage occurring upon, in or about the
Premises (including contractual indemnity and liability coverage),
such insurance to insure both Tenant and, as additional named
insureds, Landlord and the Property Manager, and to afford
protection to the limit of not less than $2,000,000.00, combined
single limit, in respect to injury or death to any number of
persons and all property damage arising out of any one (1)
occurrence, with a deductible acceptable to Landlord. This
insurance coverage shall (i) extend to any liability of Tenant
arising out of the indemnities provided for in this Lease and (ii)
be issued on an "occurrence" basis, as opposed to a "claims made"
basis.
(b) Property insurance on an all-risk basis (including, without
limitation, coverage against fire, wind, tornado, vandalism,
malicious mischief, water damage and sprinkler
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leakage) covering all fixtures, equipment and personalty located
in the Premises and endorsed to provide one hundred percent (100%)
replacement cost coverage. Such policy will be written in the names
of Tenant, Landlord and any other parties reasonably designated by
Landlord from time to time, as their respective interests may
appear. The property insurance may, with the consent of the
Landlord, provide for a reasonable deductible.
(c) Worker's compensation insurance insuring against and satisfying
Tenant's obligations and liabilities under the worker's
compensation laws of the State of Texas, together with employer's
liability insurance in an amount not less than $1,000,000.00.
7.202 OTHER REQUIREMENTS OF INSURANCE. All such insurance will be issued and
underwritten by companies reasonably acceptable to Landlord and will
contain endorsements that (a) such insurance may not lapse with respect
to Landlord or Property Manager or be canceled or amended with respect to
Landlord or Property Manager without the insurance company giving
Landlord and Property Manager at least thirty (30) days prior written
notice of such cancellation or amendment, (b) Tenant will be solely
responsible for payment of premiums, (c) in the event of payment of any
loss covered by such policy, Landlord or Landlord's designees will be
paid first by the insurance company for Landlord's loss and (d) Tenant's
insurance is primary in the event of overlapping coverage which may be
carried by Landlord.
7.203 PROOF OF INSURANCE. Tenant shall deliver to Landlord duplicate originals
of all policies of insurance required by this Section 7.2 or duly
executed originals of the evidence of such insurance (on ▇▇▇▇▇ form 27 or
a similar form) evidencing in-force coverage, stating that Landlord is an
additional insured thereunder, agreeing to give Landlord at least thirty
(30) days written notice prior to termination, cancellation or any
modification adversely affecting Landlord within ten (10) days before
Tenant's occupancy of the Premises and providing such other information
as is required by subsection 7.202 above. Further, Tenant shall deliver
to Landlord renewals thereof at least thirty (30) days prior to the
expiration of the respective policy terms.
SECTION 7.3 LANDLORD'S INSURANCE.
7.301 TYPES OF COVERAGE. Landlord covenants and agrees that from and after the
date of delivery of the Premises from Landlord to Tenant, Landlord will
carry and maintain, at its sole cost and expense, the insurance set forth
in paragraphs (a) and (b) of this subsection.
(a) Commercial General Liability Insurance covering the Building and all
Common Areas, but excluding the Premises, insuring against claims for
personal or bodily injury or death or property damage occurring upon, in
or about the Building or Common Areas to afford protection to the limit
of not less than $2,000,000.00 combined single limit in respect to injury
or death to any number of persons and property damage arising out of any
one (1) occurrence. This insurance coverage shall extend to any liability
of Landlord arising out of the indemnities provided for in this Lease.
(b) Landlord shall at all times during the term hereof maintain in effect
a policy or policies of all risk extended coverage insurance covering the
Building (excluding property required
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to be insured by Tenant) endorsed to provide full replacement cost
coverage and providing protection against perils included within the
standard Texas form of fire and extended coverage insurance policy,
together with insurance against sprinkler damage, vandalism, malicious
mischief and such other risks as Landlord may from time to time determine
and with any such deductibles as Landlord may from time to time
determine.
7.302 SELF INSURANCE AND BLANKET INSURANCE. Any insurance provided for in
subsection 7.301 above may be effected by self-insurance or by a policy
or policies of blanket insurance covering additional items or locations
or assureds, provided that the requirements of this Section 7.3 are
otherwise satisfied. Tenant shall have no rights in any policy or
policies maintained by Landlord.
SECTION 7.4 WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives any
rights it may have against the other (including, but not limited to, a direct
action for damages) on account of any loss or damage occasioned to Landlord or
Tenant, as the case may be (EVEN IF (X) SUCH LOSS OR DAMAGE (A) IS CAUSED BY
THE FAULT, NEGLIGENCE OR OTHER TORTIOUS CONDUCT, ACTS OR OMISSIONS OF THE
RELEASED PARTY OR THE RELEASED PARTY'S DIRECTORS, EMPLOYEES, AGENTS OR INVITEES
AND/OR (B) THE RELEASED PARTY IS STRICTLY LIABLE FOR SUCH LOSS OR DAMAGE), to
their respective property, the Premises, its contents or to any other portion
of the Building or the Property arising from any risk (without regard to the
amount of coverage or the amount of deductible) covered by the property
insurance required to be carried by Tenant and Landlord, respectively, under
subsections 7.201(b) and 7.301(b) above. The foregoing waiver shall be
effective even if either or both parties fail to carry the property insurance
required by Sections 7.201(b) and 7.301(b) above. If a party waiving rights
under this Section is carrying an all risk property insurance policy in the
promulgated form used in the State of Texas and an amendment to such
promulgated form is passed, such amendment shall be deemed not a part of such
promulgated form until it applies to the policy being carried by the waiving
party. Without in any way limiting the foregoing waivers and to the extent
permitted by applicable law, the parties hereto each, on behalf of their
respective insurance companies insuring the property of either Landlord or
Tenant against any such loss, waive any right of subrogation that Landlord or
Tenant or their respective insurers may have against the other party or their
respective officers, directors, employees, agents or invitees and all rights of
their respective insurance companies based upon an assignment from its insured.
Each party to this Lease agrees immediately to give to each such insurance
company written notification of the terms of the mutual waivers contained in
this Section and to have said insurance policies properly endorsed, if
necessary, to prevent the invalidation of said insurance coverage by reason of
said waivers. The foregoing waiver shall be effective whether or not the
parties maintain the required insurance.
SECTION 7.5 INDEMNITY.
7.501 TENANT'S INDEMNITY. Subject to the limitation and exclusions set forth
below in this subsection, Tenant will indemnify and hold harmless
Landlord, Property Manager, their respective officers, directors, and
employees and any other parties for whom Landlord and/or Property Manager
are legally responsible (each a "LANDLORD INDEMNIFIED PARTY") from, and
shall reimburse each Landlord Indemnified Party for and with respect to,
any and all costs, expenses (including, without limitation, reasonable
attorneys fees), claims, demands, actions, proceedings, judgments,
hearings, damages, losses and liabilities brought or asserted by or
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payable to any third party on account of personal injury, death, property
damage or any other form of injury or damage (each a "CLAIM" and
collectively the "CLAIMS") arising out of or relating to (a) an incident
or event which occurred within or on the Premises, EVEN IF THE (X)
INCIDENT OR EVENT IS THE RESULT OF OR CAUSED BY THE NEGLIGENT ACTS OR
OMISSIONS OF ANY LANDLORD INDEMNIFIED PARTY OR (Y) THE LANDLORD
INDEMNIFIED PARTY IS STRICTLY LIABLE FOR ANY CLAIM ARISING FROM SUCH
INCIDENT OR EVENT, (b) the use or occupancy of the Premises, EVEN IF (X)
THE CLAIM IS THE RESULT OF OR CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS
OF ANY LANDLORD INDEMNIFIED PARTY OR (Y) THE LANDLORD INDEMNIFIED PARTY
IS STRICTLY LIABLE FOR SUCH CLAIM, or (c) any breach of this Lease by
Tenant and which resulted in a Claim. The indemnification and
reimbursement obligations of Tenant under this subsection (i) shall be
limited to the greater of the amount of Commercial General Liability
Insurance required to be carried by Tenant under this Lease or $5,000,000
and (ii) shall not apply to a Claim (a) waived by Landlord under Section
7.4 above or any other provision of this Lease, (b) related to hazardous
or toxic materials and caused by an act or omission that does not
constitute a breach by Tenant of the provisions of subsection 4.102 above
or EXHIBIT H attached hereto, (c) arising out of the gross negligence or
intentional misconduct of the Landlord Indemnified Party or (d) resulting
from host liquor liability. If a third party files a lawsuit or brings
any other legal action asserting a Claim against a Landlord Indemnified
Party and that is covered by Tenant's indemnity, then Tenant, upon notice
from the Landlord Indemnified Party, shall resist and defend such Claim
through counsel reasonably satisfactory to the Landlord Indemnified
Party. Tenant's obligations under this subsection shall survive the
termination of this Lease.
7.502 LANDLORD'S INDEMNITY. Subject to the limitation and exclusions set forth
below in this subsection, Landlord will indemnify and hold harmless
Tenant and its officers, directors, and employees and any other parties
for whom Tenant is legally responsible (each a "TENANT INDEMNIFIED
PARTY") from, and shall reimburse each Tenant Indemnified Party for and
with respect to, any and all Claims (as defined in subsection 7.501
preceding) arising out of or relating to (a) an incident or event which
occurred within or on the Common Areas, EVEN IF THE (X) INCIDENT OR EVENT
IS THE RESULT OF OR CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF ANY
TENANT INDEMNIFIED PARTY OR (Y) THE TENANT INDEMNIFIED PARTY IS STRICTLY
LIABLE FOR ANY CLAIM ARISING FROM SUCH INCIDENT OR EVENT, (b) the use of
the Common Areas, EVEN IF (X) THE CLAIM IS THE RESULT OF OR CAUSED BY THE
NEGLIGENT ACTS OR OMISSIONS OF ANY TENANT INDEMNIFIED PARTY OR (Y) THE
TENANT INDEMNIFIED PARTY IS STRICTLY LIABLE FOR SUCH CLAIM, or (c) any
breach of this Lease by Landlord and which resulted in a Claim. The
indemnification and reimbursement obligations of Landlord under this
subsection (i) shall be limited to the greater of the amount of
Commercial General Liability Insurance required to be carried by Landlord
under this Lease or $5,000,000 and (ii) shall not apply to a Claim (a)
waived by Tenant under Section 7.4 above or any other provision of this
Lease, (b) related to hazardous or toxic materials and caused by an act
or omission that does not constitute a breach by Landlord of the
provisions of subsection 4.102 above or EXHIBIT H attached hereto, (c)
arising out of the gross negligence or intentional misconduct of the
Tenant Indemnified Party or (d) resulting from host liquor liability. If
a third party files a
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lawsuit or brings any other legal action asserting a Claim against a
Tenant indemnified Party and that is covered by Landlord's indemnity, then
Landlord, upon notice from the Tenant Indemnified Party, shall resist and
defend such Claim through counsel reasonably satisfactory to the Tenant
Indemnified Party. Landlord's obligations under this subsection shall
survive the termination of this Lease.
ARTICLE 8--CONDEMNATION
SECTION 8.1 CONDEMNATION--CONTINUED USE NOT FEASIBLE. If the Property or any
portion thereof that, in Landlord's reasonable opinion, is necessary to the
continued efficient and/or economically feasible use of the Property shall be
taken or condemned in whole or in part for public purposes, or sold to a
condemning authority in lieu of taking, then the term of this Lease shall, at
the option of Landlord, forthwith cease and terminate.
SECTION 8.2 TOTAL CONDEMNATION OF PREMISES. In the event that all or
substantially all of the Premises is taken or condemned or sold in lieu thereof
or Tenant will be unable to use a substantial portion of the Premises for a
period of one hundred eighty (180) consecutive days by reason of a temporary
taking, either Landlord or Tenant may terminate this Lease by delivering
written notice thereof to the other within ten (10) business days after the
taking, condemnation or sale in lieu thereof.
SECTION 8.3 CONDEMNATION WITHOUT TERMINATION. If upon a taking or condemnation
or sale in lieu of the taking of all or less than all of the Property which
gives either Landlord or Tenant the right to terminate this Lease pursuant to
Section 8.1 or 8.2 above and neither Landlord nor Tenant elect to exercise such
termination right, then this Lease shall continue in full force and effect,
provided that, if the taking, condemnation or sale includes any portion of the
Premises, the Basic Annual Rent and Additional Rent shall be redetermined on
the basis of the remaining square feet of Agreed Rentable Area of the Premises.
Landlord, at Landlord's sole option and expense, shall restore and reconstruct
the Building to substantially its former condition to the extent that the same
may be reasonably feasible, but such work shall not be required to exceed the
scope of the work done by Landlord in originally constructing the Building, nor
shall Landlord in any event be required to spend for such work an amount in
excess of the amount received by Landlord as compensation or damages (over and
above amounts going to the mortgagee of the property taken) for the part of the
Building or the Premises so taken.
SECTION 8.4 CONDEMNATION PROCEEDS. Landlord shall receive the entire award
(which shall include sales proceeds) payable as a result of a condemnation,
taking or sale in lieu thereof. Tenant hereby expressly assigns to Landlord any
and all right, title and interest of Tenant now or hereafter arising in and to
any such award. Tenant shall, however, have the right to recover from such
authority through a separate award which does not reduce Landlord's award, any
compensation as may be awarded to Tenant on account of moving and relocation
expenses and depreciation to and removal of Tenant's physical property.
ARTICLE 9--LIENS
Tenant shall keep the Premises and the Property free from all liens arising out
of any work performed, materials furnished or obligations incurred by or for
Tenant and Tenant shall indemnify
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and hold harmless Landlord from and against, and reimburse Landlord for and
with respect to, any and all Claims, arising from or in connection with any
such liens. In the event that Tenant shall not, within ten (10) days following
written notification from Landlord to Tenant of the imposition of any such
lien, cause the same to be released of record by payment or the posting of a
bond in amount, form and substance acceptable to Landlord, Landlord shall have,
in addition to all other remedies provided herein and by law, the right but not
the obligation, to cause the same to be released by such means as it shall deem
proper, including payment of or defense against the claim giving rise to such
lien. All amounts paid or incurred by Landlord in connection therewith shall be
paid by Tenant to Landlord on demand and shall bear interest from the date of
demand until paid at the rate set forth in Section 15.10 below. Nothing in this
Lease shall be deemed or construed in any way as constituting the consent or
request of Landlord, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any specific improvement,
alteration or repair of or to the Building or the Premises or any part thereof,
nor as giving Tenant any right, power or authority to contract for or permit
the rendering of any services or the furnishing of any materials that would
give rise to the filing of any mechanic's or other liens against the interest
of Landlord in the Property or the Premises.
ARTICLE 10--TAXES ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay, prior to their becoming delinquent,
any and all taxes and assessments levied against, and any increases in Real
Estate Taxes as a result of, any personal property or trade or other fixtures
placed by Tenant in or about the Premises. In the event Landlord pays any such
additional taxes or increases, Tenant will, within thirty (30) days after
demand, reimburse Landlord for the amount thereof. Without in any way limiting
the foregoing provisions, if any authority levying real and personal property
taxes against the Tower as a standard practice for determining the value of the
Tower for tax purposes includes a component for tenant improvements or
non-movable trade fixtures of individual tenants, Tenant will pay Landlord any
portion of such taxes which is equal to the product of (i) the total of such
taxes multiplied by (ii) the fraction the numerator of which is the cost of
tenant improvements or non-movable trade fixtures in the Premises in excess of
the Building standard or existing improvements (collectively, "ABOVE STANDARD
IMPROVEMENTS") and the denominator of which is the cost of all tenant
improvements in the Tower. Upon receipt of any such tax statement, Landlord
will compute Tenant's share of taxes attributable to Above Standard
Improvements, and submit a statement to Tenant evidencing the method of
calculation. Tenant will pay to Landlord together with the next monthly
installment of Base Annual Rent due after the receipt of Landlord's statement
the entire amount due under this Article. The method of calculation of the
share of taxes attributable to Above Standard Improvements will be subject to
adjustment by Landlord from time to time in order to reflect the method
currently utilized by taxing authorities to calculate taxes for Above Standard
Improvements. If Tenant is assessed for taxes for Above Standard Improvements
directly by the taxing authorities, Tenant will pay the same before delinquency
and deliver to Landlord copies of receipts for payment of such taxes and
assessments no later than ten (10) days prior to the deadline for payment
without imposition of penalty.
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ARTICLE 11--SUBLETTING AND ASSIGNING
SECTION 11.1 SUBLEASE AND ASSIGNMENT.
11.101 GENERAL PROHIBITION ON ASSIGNMENT AND SUBLEASING. Except as permitted by
subsection 11.102, Tenant shall not assign this Lease, or allow it to be
assigned, in whole or in part, by operation of law or otherwise (it
being agreed that for purposes of this Lease, assignment shall include,
without limitation, the transfer of a majority interest of stock,
partnership or other forms of ownership interests, merger or
dissolution) or mortgage or pledge the same, or sublet the Premises or
any part thereof or permit the Premises to be occupied by any firm,
person, partnership or corporation or any combination thereof, other
than Tenant, without the prior written consent of Landlord.
Notwithstanding any subletting or assignment by Tenant hereunder or any
provision herein to the contrary, Tenant shall remain fully liable for
the performance of all the covenants, agreements, terms, provisions and
conditions contained in this Lease on the part of Tenant to be
performed, including without limitation, Tenant's obligation to pay
Basic Rent and Additional Rent during the entire Term. Tenant shall
deliver to Landlord a copy of each assignment or sublease entered into
by Tenant promptly after the execution thereof, whether or not
Landlord's consent is required in connection therewith. No assignee or
sublessee of the Premises or any portion thereof may assign or sublet
the Premises or any portion thereof. Consent by Landlord to one or more
assignments or sublettings shall not operate as a waiver of Landlord's
rights as to any subsequent assignments and/or sublettings. Any
assignment made by Tenant shall be in recordable form and shall contain
a covenant of assumption by the assignee running to Landlord. All
reasonable legal fees and expenses incurred by Landlord in connection
with any assignment or sublease proposed by Tenant will be the
responsibility of Tenant and will be paid by Tenant within thirty (30)
days of receipt of an invoice from Landlord.
11.102 ASSIGNMENT TO AFFILIATE AND PERMITTED OFFERINGS.
(a) Notwithstanding the prohibition against assignment and subleasing
contained in subsection 11.101, Tenant may, without the prior
written consent of Landlord, but only after giving Landlord at
least thirty (30) days prior written notice (which notice shall
include the identity of the Affiliate [hereinafter defined], the
relationship of the Affiliate to Tenant and the form of the
proposed assignment or sublease, which shall be in form
reasonably satisfactory to Landlord), sublet the Premises or any
part thereof to an Affiliate or assign this Lease to an Affiliate
or permit occupancy of any portion of the Premises by an
Affiliate. The term "Affiliate" shall mean (i) any corporation
which, directly or indirectly, controls or is controlled by or is
under common control with Tenant or (ii) any corporation not less
than fifty percent (50%) of whose outstanding stock shall, at the
time, be owned directly or indirectly by Tenant or Tenant's
parent corporation, or (iii) any entity which merges with Tenant
or a new entity which results from a merger between Tenant and
another entity, provided such merged entity or new resulting
entity has a financial net worth at least equal to the greater of
(a) the net worth of Tenant on the date of this Lease or (b) the
net worth of Tenant immediately prior to the merger. For purposes
of this subsection (b), "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of such corporation,
whether
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through the ownership of voting securities or by contract or
otherwise and ownership of the liabilities, losses, profits and
tax benefits for such entity.
(b) Notwithstanding any provision or inference in this Lease to the
contrary, Tenant may issue new stock in connection with any public
offering or private placement of such stock.
SECTION 11.2 LANDLORD'S RIGHTS.
11.201 LANDLORD'S TERMINATION AND CONSENT RIGHTS.
(a) If Tenant desires to assign any portion of this Lease or sublease
any portion of the Premises to any party other than an Affiliate,
Tenant shall submit to Landlord (a) in writing the name of the
proposed assignee or subtenant, as applicable, the nature of the
proposed assignee or subtenant's business and, as applicable, the
portion of this Lease Tenant desires to assign or the portion of
the Premises which Tenant desires to sublease, (b) a current
balance sheet and income statement for such proposed assignee or
subtenant, as applicable, (c) a copy of the proposed form of
sublease (THE "PROPOSED SUBLEASE") or proposed form of assignment
("PROPOSED ASSIGNMENT"), as applicable, (d) recommendations for the
proposed assignee or subtenant, as applicable from two (2) prior
landlords of the proposed assignee or subtenant (with the
understanding that if such proposed assignee or subtenant does not
have two prior landlords, then recommendations will be required
only from such proposed assignee's or subtenant's prior landlord,
if any), (e) the portion of the Premises which Tenant proposes to
sublease or the percentage of Tenant's leasehold estate that Tenant
proposes to assign, as applicable, and (e) such other information
as Landlord may reasonably request (such documents and information,
collectively the "REQUIRED INFORMATION").
(b) Subject to Tenant's right under the next following sentence, Landlord
shall have the right to terminate this Lease as to the Applicable
Portion of the Premises (hereinafter defined), by delivering to
Tenant, within fifteen (15) days after Landlord receives the
Required Information, a written notice in which (i) Landlord elects
to terminate this Lease to the Applicable Portion of the Premises
and (ii) Landlord specifies the date on which this Lease will
terminate as to the Applicable Portion of the Premises (the
"SPECIFIED TERMINATION DATE"), which Specified Termination Date
shall not be sooner than 30 days after the date of the applicable
notice of termination, nor later than 90 days after the date of the
applicable notice of termination. If Landlord forwards a notice of
termination in accordance with the preceding provisions, Tenant
shall have the right to withdraw its request for Landlord's consent
to a Proposed Sublease or Proposed Assignment by delivering
Landlord written notice thereof (each such notice a "NOTICE OF
WITHDRAWAL") within five (5) days after receiving Landlord's
termination notice. If Tenant timely delivers a Notice of
Withdrawal, the applicable termination notice shall be deemed null
and void and this Lease shall not terminate with respect to the
Applicable Portion of the Premises. If Tenant fails to deliver a
Notice of Withdrawal within the required 3-day period, then
Landlord's
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applicable notice of termination shall be and remain in full force
and effect and this Lease shall terminate on the Specified
Termination Date with respect to the Applicable Portion of the
Premises (the Applicable Portion of the Premises covered by each
such notice of termination which remains in full force and effect,
the "TERMINATED SPACE"). The "APPLICABLE PORTION OF THE PREMISES"
shall mean the following: (A) if the applicable Proposed Sublease
is for the entire Premises or the applicable Proposed Assignment
is for Tenant's leasehold estate in all of the Premises, the
Applicable Portion of the Premises shall mean the entire Premises;
(B) if the Proposed Sublease covers less than all of the Premises
or the Proposed Assignment is an assignment of Tenant's leasehold
estate in less than all of the Premises, the Applicable Portion of
the Premises shall mean the portion of the Premises that is the
subject of the applicable Proposed Sublease or the portion of the
Premises with respect to which Tenant proposes to assign its
leasehold estate pursuant to the applicable Proposed Assignment.
(c) If Landlord does not exercise its termination right with respect to
the Applicable Portion of the Premises within the required 15-day
period, then Landlord shall be deemed to have waived its right to
terminate this Lease with respect to the Applicable Portion of the
Premises, but shall have the right to consent or withhold its
consent to the applicable Proposed Assignment or Proposed Sublease
by delivering written notice thereof to Tenant within five (5) days
after such 15-day period. If Landlord does not exercise its right
to consent or withhold its consent in respect of a Proposed
Assignment or Proposed Sublease, as applicable, within such 5-day
period, then Landlord shall be deemed to have consented to the
Proposed Assignment or Proposed Sublease, as applicable.
11.202 EFFECT OF TERMINATION. If the Terminated Space is the entire Premises,
Base Rent and Additional Rent shall be prorated to the Termination Date.
If the Terminated Space is less than the entire Premises, then, from and
after the applicable Specified Termination Date, (i) the Base Rent shall
be reduced by the amount of Base Rent that was being paid in respect of
the Terminated Space as of the applicable Specified Termination Date,
(iii) the Agreed Rentable Area of the Premises shall be decreased by the
square feet of rentable area of the Terminated Space, (iv) Tenant's
estimated payments of Additional Rent shall be recalculated on the basis
of the revised Agreed Rentable Area of the Premises, (v) if the
Terminated Space adjoins another portion of the Premises, Tenant shall,
at Tenant's sole cost and expense, construct and finish such demising
walls as are necessary to physically separate the Premises from the
Terminated Space, and (vi) if the Terminated Space is part of a floor
which is fully included in the Premises, Landlord shall have the right
(a) to construct and finish in accordance with Building standards or to
cause Tenant to construct and finish in accordance with Building
standards such demising walls as are necessary (x) to construct a public
corridor so as to convert the floor to a multi-tenant floor and (y) to
convert the restrooms on such floor (including access thereto) to
restrooms which will serve the entire floor, as opposed to only the
Premises and (b) to make such revisions, if any, are necessary, to
properly light, heat, cool and ventilate the public corridor and public
restrooms. The alterations performed by Tenant pursuant to this
paragraph shall be deemed Installations and therefore subject to the
provisions of subsection 6.303.
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SECTION 11.3 LANDLORD'S RIGHTS RELATING TO ASSIGNEE OR SUBTENANT. Without
limiting Landlord's consent rights and as a condition to obtaining Landlord's
consent, (i) each assignee must assume all obligations under this Lease, and
(ii) each sublessee must confirm that its sublease is subject and subordinate
to this Lease. In addition, each assignee and sublessee shall agree to cause
the Premises to comply at all times with all requirements of the Disability
Acts (as amended), including, but not limited to, obligations arising out of or
associated with such assignee's or subtenant's use of or activities or business
operations conducted within the Premises. No assignee or sublessee of the
Premises or any portion thereof may assign or sublet the Premises or any
portion thereof. To the extent the rentals or income derived from any sublease
or assignment exceed the sum of the rentals payable under this Lease in respect
of the portion of the Premises covered by such sublease or assignment (such
excess, the "EXCESS SUBLEASE RENTS"), Landlord shall be entitled to fifty
percent (50%) of such Excess Sublease Rents and Tenant shall pay Landlord its
share of Excess Sublease Rents promptly after receipt thereof. If this Lease or
any part hereof is assigned or the Premises or any part thereof are sublet,
Landlord may at its option collect directly from such assignee or sublessee all
rents becoming due to Tenant under such assignment or sublease, in which event
Landlord shall first apply such rent against any sums due to Landlord by Tenant
hereunder and Tenant shall be entitled to the remainder, if any, but only to
the extent of Tenant's share of Excess Sublease Rents. 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 and Tenant agrees that any
such payments made by an assignee or sublessee to Landlord shall, to the extent
of the payments so made, be a full and complete release and discharge of rent
owed to Tenant by such assignee or sublessee. No direct collection by Landlord
from any such assignee or sublessee shall be construed to constitute a novation
or a release of Tenant or any guarantor of Tenant from the further performance
of its obligations hereunder. Receipt by Landlord of rent from any assignee,
sublessee or occupant of the Premises or any part thereof shall not be deemed a
waiver of the above covenant in this Lease against assignment and subletting or
a release of Tenant under this Lease. In the event that, following an
assignment or subletting, this Lease or the rights and obligations of Tenant
hereunder are terminated for any reason, including without limitation in
connection with an Event of Default by or bankruptcy of Tenant (which, for the
purposes of this Section 11.3, shall include all persons or entities claiming
by or through Tenant), Landlord may, at its sole option, consider this Lease to
be thereafter a direct lease to the assignee or subtenant of Tenant upon the
terms and conditions contained in this Lease.
SECTION 11.4 ASSIGNMENT AND BANKRUPTCY.
11.401 ASSIGNMENTS AFTER BANKRUPTCY. If, pursuant to applicable bankruptcy law
(as hereinafter defined), Tenant (or its successor in interest
hereunder) is permitted to assign this Lease in disregard of the
restrictions contained in this Article 11 (or if this Lease shall be
assumed by a trustee for such person), the trustee or assignee shall
cure any default under this Lease and shall provide adequate assurance
of future performance by the trustee or assignee including (1) of the
source of payment of Basic Annual Rent and performance of other
obligations under this Lease (for which adequate assurance shall mean
the deposit of cash security with Landlord in an amount equal to the sum
of one (1) year's Basic Annual Rent, Additional Rent and other Rent then
reserved hereunder for the calendar year preceding the year in which
such assignment is intended to become effective, which deposit shall be
held by Landlord,
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without interest, for the balance of the Term as security for the full
and faithful performance of all of the obligations under this Lease on
the part of Tenant yet to be performed) and that any such assignee of
this Lease shall have a net worth exclusive of good will, computed in
accordance with the generally accepted accounting principles, equal to
at least ten (10) times the aggregate of the Basic Annual Rent reserved
hereunder; and (2) that the use of the Premises shall be in accordance
with the requirements of Article 3 hereof and, further, shall in no way
diminish the reputation of the Building as a first-class office building
or impose any additional burden upon the Building or increase the
services to be provided by Landlord. If all defaults are not cured and
such adequate assurance is not provided within sixty (60) days after
there has been an order for relief under applicable bankruptcy law, then
this Lease shall be deemed rejected, Tenant or any other person in
possession shall vacate the Premises, and Landlord shall be entitled to
retain any Basic Annual Rent, Additional Rent and any other Rent,
together with any security deposit previously received from the Tenant,
and shall have no further liability to Tenant or any person claiming
through Tenant or any trustee.
11.402 BANKRUPTCY OF ASSIGNEE. If Tenant assigns this Lease to any party and
such party or its successors or representatives causes termination or
rejection of this Lease pursuant to applicable bankruptcy law, then,
notwithstanding any such termination or rejection, Tenant (A) shall
remain fully liable for the performance of all covenants, agreements,
terms, provisions and conditions contained in this Lease, as though the
assignment never occurred and (B) shall, without in any way limiting the
foregoing, in writing ratify the terms of this Lease, as same existed
immediately prior to the termination or rejection.
ARTICLE 12--TRANSFERS BY LANDLORD, SUBORDINATION AND
TENANT'S ESTOPPEL CERTIFICATE
SECTION 12.1 SALE OF THE PROPERTY. In the event of any transfer of title to the
Building, the transferor shall automatically be relieved and freed of all
obligations of Landlord under this Lease accruing after such transfer, provided
that if a Security Deposit has been made by Tenant, Landlord shall not be
released from liability with respect thereto unless Landlord transfers the
Security Deposit to the transferee.
SECTION 12.2 SUBORDINATION, ATTORNMENT AND NOTICE. This Lease is subject and
subordinate to (i) any lease now or hereafter existing wherein Landlord is the
tenant (each such lease, a "GROUND LEASE") and to the liens of any and all now
or hereafter existing mortgages and deeds of trust affecting the Property or
any portion thereof (each such mortgage and deed of trust, a "MORTGAGE"), (ii)
any and all advances (including interest thereon) to be made under any such
Ground Lease or Mortgage and (iii) all modifications, consolidations, renewals,
replacements and extensions of any such Ground Lease or Mortgage; provided that
the foregoing subordination is conditioned upon and subject to the lessor under
any such Ground Lease and the holder of any such Mortgage delivering to and
entering into with Tenant a non-disturbance (each a "NON-DISTURBANCE
AGREEMENT"). Tenant also agrees that any lessor under a Ground Lease and any
mortgagee or trustee under a Mortgage may elect (which election shall be
revocable) to have this Lease superior to any Ground Lease or lien of its
Mortgage, as applicable, and, in the event of such election and upon
notification by such lessor, mortgagee or trustee to Tenant to that effect,
this Lease shall be deemed superior to the said Ground Lease or Mortgage, as
applicable, whether this Lease
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is dated prior to or subsequent to the date of said Ground Lease or Mortgage.
Tenant shall, in the event of the sale or assignment of Landlord's interest in
the Premises (except in a sale-leaseback financing transaction), or in the
event of the termination of any Ground Lease, attorn to and recognize such
purchaser, assignee, mortgagee or lessor, as applicable, as Landlord under this
Lease, provided that the lessor under such Ground Lease or the holder of any
such Mortgage has delivered to and entered into with Tenant a Non-Disturbance
Agreement. Tenant shall, in the event of a termination of a Ground Lease or any
proceedings brought for the foreclosure of, or in the event of the exercise of
the power of sale under, any mortgage or deed of trust covering the Premises,
attorn to and recognize the lessor under such Ground Lease or the purchaser at
such sale, assignee or mortgagee, as the case may be, as Landlord under this
Lease, provided that the lessor under such Ground Lease or the holder of any
such mortgage or deed of trust has delivered to and entered into with Tenant a
Non-Disturbance Agreement. Provided a Non-Disturbance Agreement has been
entered into by the parties, the above subordination and attornment clauses
shall be self-operative and no further instruments of subordination or
attornment need be required by any mortgagee, trustee, lessor, purchaser or
assignee. In confirmation thereof, Tenant agrees that, upon the request of
Landlord, or any such lessor, mortgagee, trustee, purchaser or assignee, Tenant
shall execute and deliver a subordination and attornment agreement in form
reasonably satisfactory to Tenant.
SECTION 12.3 TENANT'S ESTOPPEL CERTIFICATE. Tenant shall, within five (5) days
after receiving a written request from Landlord or any mortgagee of Landlord,
without additional consideration, deliver an estoppel certificate, consisting
of reasonable statements required by Landlord, any mortgagee or purchaser of
any interest in the Property, which statements may include but shall not be
limited to the following: this Lease is in full force and effect, with rental
paid through a specified date; this Lease has not been modified or amended;
Landlord is not in default and Landlord has fully performed all of Landlord's
obligations hereunder; and such other statements as may reasonably be required
by the requesting party. If Tenant is unable to make any of the statements
contained in the estoppel certificate because the same is untrue, Tenant shall
with specificity state the reason why such statement is untrue. Tenant shall,
if requested by Landlord or any such mortgagee, deliver to Landlord a fully
executed instrument in form reasonably satisfactory to Landlord evidencing the
agreement of Tenant to the mortgage or other hypothecation by Landlord of the
interest of Landlord hereunder.
ARTICLE 13--DEFAULT
SECTION 13.1 DEFAULTS BY TENANT. The occurrence of any of the events described
in subsections 13.101 through 13.108 shall constitute a default by Tenant under
this Lease.
13.101 FAILURE TO PAY RENT. With respect to the first two payments of Rent not
made by Tenant when due in any twelve (12) month period, the failure by
Tenant to make either such payment to Landlord within three (3) business
days after Tenant receives written notice specifying that the payment
was not made when due. With respect to any other payment of Rent, the
failure by Tenant to make such payment of Rent to Landlord when due, no
notice of any such failure being required.
13.102 FAILURE TO PERFORM. Except for a failure covered by subsection 13.101
above or 13.103 below, any failure by Tenant to observe and perform any
provision of this Lease to be
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observed or performed by Tenant where such failure continues for thirty
(30) days after written notice to Tenant, provided that if such failure
cannot be cured within said thirty (30) day period, Tenant shall not be
in default hereunder so long as Tenant commences curative action within
such thirty (30) day period, diligently and continuously pursues the
curative action and fully and completely cures the failure within ninety
(90) days after such written notice to Tenant.
13.103 CONTINUAL FAILURE TO PERFORM. The third failure by Tenant in any twelve
(12) month period to perform and observe a particular provision of this
Lease to be observed or performed by Tenant (other than the failure to
pay Rent, which in all instances will be covered by subsection 13.101
above), no notice being required for any such third failure.
13.104 BANKRUPTCY, INSOLVENCY, ETC. Tenant or any guarantor of Tenant's
obligations hereunder (hereinafter called "GUARANTOR", whether one (1)
or more), (i) cannot meet its obligations as they become due, (ii)
becomes or is declared insolvent according to any law, (iii) makes a
transfer in fraud of creditors according to any applicable law, (iv)
assigns or conveys all or a substantial portion of its property for the
benefit or creditors or (v) Tenant or Guarantor files a petition for
relief under the Federal Bankruptcy Code or any other present or future
federal or state insolvency, bankruptcy or similar law (collectively,
"applicable bankruptcy law"); a receiver or trustee is appointed for
Tenant or Guarantor or its property; the interest of Tenant or Guarantor
under this Lease is levied on under execution or under other legal
process; any involuntary petition is filed against Tenant or Guarantor
under applicable bankruptcy law; or any action under applicable
bankruptcy law is taken to reorganize or modify Tenant's or Guarantor's
capital structure if either Tenant or Guarantor be a corporation or
other entity (provided that no such levy, execution, legal process or
petition filed against Tenant or Guarantor shall constitute a breach of
this Lease if Tenant or Guarantor shall vigorously contest the same by
appropriate proceedings and shall remove or vacate the same within
ninety (90) days from the date of its creation, service or filing).
13.105 LOSS OF RIGHT TO DO BUSINESS. If Tenant is a corporation or limited
partnership, Tenant fails to maintain its right to do business in the
State of Texas or fails to pay any applicable annual franchise taxes as
and when same become finally due and payable and such failure continues
for ten (10) business days after Tenant receives written notice thereof
from the State of Texas.
13.106 DISSOLUTION OR LIQUIDATION. If Tenant is a corporation or partnership,
Tenant dissolves or liquidates or otherwise fails to maintain its
corporate or partnership structure, as applicable.
With respect to the defaults described in subsections 13.103 through 13.105,
Landlord shall not be obligated to give Tenant notices of default and Tenant
shall have no right to cure such defaults.
SECTION 13.2 REMEDIES OF LANDLORD.
13.201 TERMINATION OF THE lEASE. Upon the occurrence of a default by Tenant
hereunder, Landlord may, without judicial process, terminate this Lease
by giving written notice thereof to Tenant (whereupon all obligations
and liabilities of Landlord hereunder shall terminate) and, without
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further notice and without liability, repossess the Premises. Landlord
shall be entitled to recover all loss and damage Landlord may suffer by
reason of such termination, whether through inability to relet the
Premises on satisfactory terms or otherwise, including without
limitation, the following (without duplication of any element of
damages):
(a) accrued Rent to the date of termination and Late Charges, plus
interest thereon at the rate established under Section 15.10 below
from the date due through the date paid or date of any judgment or
award by any court of competent jurisdiction, the unamortized cost
of Tenant's Improvements, brokers' fees and commissions, attorneys'
fees, moving allowances and any other costs incurred by Landlord in
connection with making or executing this Lease, the cost of
recovering the Premises and the costs of reletting the Premises
(including, without limitation, advertising costs, brokerage fees,
leasing commissions, reasonable attorneys' fees and refurbishing
costs and other costs in readying the Premises for a new tenant);
(b) the present value of the Rent (discounted at a rate of interest equal
to eight percent [8%] per annum [the "DISCOUNT RATE"]) that would
have accrued under this Lease for the balance of the Lease term but
for such termination, reduced by the reasonable fair market rental
value of the Premises for such balance of the Lease term
(determined from the present value of the actual base rents,
discounted at the Discount Rate, received and to be received from
Landlord's reletting of the Premises or, if the Premises are not
relet, the base rents, discounted at the Discount Rate, that would
be received from a comparable lease and comparable tenant for a
comparable term and taking into account among other things, the
condition of the Premises, market conditions and the period of time
the Premises may reasonably remain vacant before Landlord is able
to re-lease the same to a suitable replacement tenant, it being
agreed that Landlord shall have no obligation to relet or attempt
to relet the Premises);
(c) plus any other costs or amounts necessary to compensate Landlord
for its damages.
Notwithstanding the preceding provisions, Tenant shall not be liable for
consequential damages incurred by Landlord, save and except for
consequential damages incurred by Landlord as a result of Tenant's
holdover in the Premises following the expiration or earlier termination
of this Lease.
13.202 REPOSSESSION AND RE-ENTRY. Upon the occurrence of a default by Tenant
hereunder, Landlord may, without judicial process, immediately terminate
Tenant's right of possession of the Premises (whereupon all obligations
and liability of Landlord hereunder shall terminate), but not terminate
this Lease, and, without notice, demand or liability, enter upon the
Premises or any part thereof, take absolute possession of the same,
expel or remove Tenant and any other person or entity who may be
occupying the Premises and change the locks. If Landlord terminates
Tenant's possession of the Premises under this subsection 13.202, (i)
Landlord shall have no obligation whatsoever to tender to Tenant a key
for new locks installed in the Premises, (ii) Tenant shall have no
further right to possession of the Premises and (iii) Landlord shall
have no obligation whatsoever to relet or attempt to relet the Premises.
Landlord may, however, at its sole option relet the Premises or any part
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thereof for such terms and such rents as Landlord may in its sole
discretion elect. If Landlord elects to relet the Premises, rent
received by Landlord from such reletting shall be applied first, to the
payment of any indebtedness other than Rent due hereunder from Tenant to
Landlord (in such order as Landlord shall designate), second, to the
payment of any cost of such reletting, including, without limitation,
refurbishing costs, reasonable attorneys' fees, advertising costs,
brokerage fees and leasing commissions and third, to the payment of Rent
due and unpaid hereunder (in such order as Landlord shall designate),
and Tenant shall Satisfy and pay to Landlord any deficiency upon demand
therefor from time to time. Landlord shall not be responsible or liable
for any failure to relet the Premises or any part thereof or for any
failure to collect any rent due upon any such reletting. No such
re-entry or taking of possession of the Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease
unless a written notice of such termination is given to Tenant pursuant
to subsection 13.201 above. If Landlord relets the Premises, either
before or after the termination of this Lease, all such rentals received
from such lease shall be and remain the exclusive property of Landlord
and Tenant shall not be, at any time, entitled to recover any such
rental. Landlord may at any time after a reletting elect to terminate
this Lease.
13.203 CURE OF DEFAULT. Upon the occurrence of a default hereunder by Tenant,
Landlord may, without judicial process and without having any liability
therefor, enter upon the Premises and do whatever Tenant is obligated to
do under the terms of this Lease and Tenant agrees to reimburse Landlord
on demand for any expenses which Landlord may incur in effecting
compliance with Tenant's obligations under this Lease, and Tenant
further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by the negligence
of Landlord or otherwise.
13.204 CONTINUING OBLIGATIONS. No repossession of or re-entering upon the
Premises or any part thereof pursuant to subsection 13.202 or 13.203
above or otherwise and no reletting of the Premises or any part thereof
pursuant to subsection 13.202 above shall relieve Tenant or any
Guarantor of its liabilities and obligations hereunder, all of which
shall survive such repossession or re-entering. In the event of any such
repossession of or re-entering upon the Premises or any part thereof by
reason of the occurrence of a default, Tenant will continue to pay to
Landlord Rent required to be paid by Tenant.
SECTION 13.3 DEFAULTS BY LANDLORD. Landlord shall be in default under this
Lease if and only if Landlord fails to perform any of its obligations hereunder
and said failure continues for a period of thirty (30) days after Tenant
delivers written notice thereof to Landlord (to each of the addresses required
by this Section) and each mortgagee who has a lien against any portion of the
Property and whose name and address has been provided to Tenant, provided that
if such failure cannot reasonably be cured within said thirty (30) day period,
Landlord shall not be in default hereunder if the curative action is commenced
within said thirty (30) day period and is thereafter diligently pursued until
cured. In no event shall (i) Tenant claim a constructive or actual eviction or
that the Premises have become unsuitable hereunder or (ii) a constructive or
actual eviction or breach of the implied warranty of suitability be deemed to
have occurred under this Lease, prior to the expiration of the notice and cure
periods provided under this Section 13.3. Any notice of a failure to perform by
Landlord shall be sent to Landlord at the addresses and to the attention of the
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parties set forth in the Basic Lease Provisions. Any notice of a failure to
perform by Landlord not sent to Landlord at all addresses and/or to the
attention of all parties required under this Section and to each mortgagee who
is entitled to notice or not sent in compliance with Article 14 below shall be
of no force or effect.
SECTION 13.4 LANDLORD'S LIABILITY.
13.401 TENANT'S RIGHTS IN RESPECT OF LANDLORD DEFAULT. Tenant is granted no
contractual right of termination by this Lease, except to the extent and
only to the extent set forth in Articles 7 and 8 above. If Tenant shall
recover a money judgment against Landlord, such judgment shall be
satisfied only out of the right, title and interest of Landlord in the
Property as the same may then be encumbered and Landlord shall not be
liable for any deficiency. If Landlord is found to be in default
hereunder by reason of its failure to give a consent that it is required
to give hereunder, Tenant's sole remedy will be an action for specific
performance or injunction. The foregoing sentence shall in no event be
construed as mandatorily requiring Landlord to give consents under this
Lease. In no event shall Landlord be liable to Tenant for consequential
or special damages by reason of a failure to perform (or a default) by
Landlord hereunder or otherwise. In no event shall Tenant have the right
to levy execution against any property of Landlord other than its
interest in the Property as hereinbefore expressly provided.
13.402 CERTAIN LIMITATIONS ON LANDLORD'S LIABILITY. UNLESS COVERED BY
SUBSECTION 7.502 ABOVE OR CAUSED BY LANDLORD'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT AND WITHOUT LIMITING THE PROVISIONS OF SECTION 7.4,
LANDLORD SHALL NOT BE LIABLE TO TENANT FOR ANY CLAIMS, ACTIONS, DEMANDS,
COSTS, EXPENSES, DAMAGE OR LIABILITY OF ANY KIND (i) arising out of the
use, occupancy or enjoyment of the Premises by Tenant or any person
therein or holding under Tenant or by or through the acts or omissions
of any of their respective employees, officers, agents, invitees or
contractors, (ii) caused by or arising out of fire, explosion, falling
sheetrock, gas, electricity, water, rain, snow or dampness, or leaks in
any part of the Premises, (iii) caused by or arising out of damage to
the roof, pipes, appliances or plumbing works or any damage to or
malfunction of heating, ventilation or air conditioning equipment, (iv)
caused by tenants or any persons either in the Premises or elsewhere in
the Building (other than Common Areas) or by occupants of property
adjacent to the Building or Common Areas or by the public or by the
construction of any private, public or quasi-public work or (v) caused
by any act, neglect or negligence of Tenant. In no event shall Landlord
be liable to Tenant for any loss of or damage to property of Tenant or
of others located in the Premises, the Building or any other part of the
Property by reason of theft or burglary.
SECTION 13.5 WAIVER OF TEXAS DECEPTIVE TRADE PRACTICES ACT. TENANT HEREBY
WAIVES ALL ITS RIGHTS UNDER THE TEXAS DECEPTIVE TRADE PRACTICES - CONSUMER
PROTECTION ACT, SECTION 17.41 ET. SEQ. OF THE TEXAS BUSINESS AND COMMERCE CODE
(THE "DTPA"), A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER
CONSULTATION WITH AN ATTORNEY OF TENANT'S OWN SELECTION, TENANT VOLUNTARILY
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CONSENTS TO THIS WAIVER. The foregoing waiver by Tenant shall also be finding
on any permitted assign or successor of Tenant under this Lease. The provisions
of this Section shall survive any termination of this Lease. Tenant represents
to Landlord:
(a)Tenant is not in a significantly disparate bargaining position with
respect to this Lease and the transaction evidenced hereby.
(b)Tenant is represented by legal counsel in connection wit this
Lease.
SECTION 13.6 LANDLORD'S LIEN. Tenant grants to Landlord an express contract
lien on and security interest in and to all goods, equipment, furnishings,
fixtures, furniture, chattels and personal property of whatever nature owned by
Tenant attached or affixed to or used in and about the Premises on the date of
this Lease or at any time after the date of this Lease or otherwise located in
the Premises and all renewals or replacements or substitutions for any of the
foregoing, all building materials and equipment now or hereafter delivered to
the Premises and intended to be installed in the Premises and all security
deposits and advance rentals under lease agreements on the date of this Lease
or at any time after the date of this Lease covering or affecting the Premises
and held by or for the benefit of Tenant and all proceeds of the foregoing
(including by way of illustration, but not limitation, proceeds of any
insurance which may accrue to Tenant by reason of damage or destruction of any
such property). On the date this Lease is executed, Tenant shall execute and
deliver to Landlord two multiple originals of a financing statement in form
sufficient to perfect the security interest granted hereunder. A carbon,
photographic or other reproduction of this Lease is sufficient and may be filed
as a financing statement. Landlord shall have all the rights and remedies of a
secured party under the Texas Business and Commerce Code and this lien and
security interest may be foreclosed by process of law. The requirement of
reasonable notice prior to any sale under Article 9 of the Texas Business and
Commerce Code shall be met if such notice is given in the manner prescribed
herein at least ten (10) days before the day of sale. Any sale made pursuant to
the provisions of this Section shall be deemed to have been a public sale
conducted in a commercially reasonable manner if held in the Premises after the
time, place and method of sale and a general description of the types of
property to be sold have been advertised for ten (10) consecutive days prior to
the date of sale in a daily newspaper published in the county in Texas where
the Building is located.
SECTION 13.7 CUMULATIVE REMEDIES. No right or remedy herein conferred upon or
reserved to Landlord or Tenant is intended to be exclusive of any other right
or remedy set forth herein or otherwise available to Landlord or Tenant at law
or in equity and each and every right and remedy shall be cumulative and in
addition to any other right or remedy given hereunder or now or hereafter
existing at law or in equity or by statute. In addition to the other remedies
provided in this Lease and without limiting the preceding sentence, Landlord
and Tenant shall be entitled, to the extent permitted by applicable law, to
injunctive relief in case of the violation, or attempted or threatened
violation, of any of the covenants, agreements, conditions or provisions of
this Lease, or to a decree compelling performance of any of the covenants,
agreements, conditions or provisions of this Lease, or to any other remedy
allowed to Landlord or Tenant, as applicable, at law or in equity.
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SECTION 13.8 VACATING PREMISES. In the event that Tenant ceases all or
substantially all of its business operations in the Premises for a period of
more than ninety (90) calendar days, Landlord shall have the right to terminate
this Lease by delivering written notice thereof to Tenant.
ARTICLE 14--NOTICES
Any notice or communication required or permitted in this Lease shall be given
in writing, sent by (a) personal delivery, with proof of delivery, (b)
expedited delivery service, with proof of delivery, (c) United States mail,
postage prepaid, registered or certified mail, return receipt requested or (d)
prepaid telegram (provided that such telegram is confirmed by expedited
delivery service or by mail in the manner previously described), addressed as
provided in Item 14 of the Basic Lease Provisions and Section 13.3 above or to
such other address or to the attention of such other person as shall be
designated from time to time in writing by the applicable party and sent in
accordance herewith. Notice also may be given by telex or fax, provided each
such transmission is confirmed (and such confirmation is supported by
documented evidence) as received and further provided a telex or fax number, as
the case may be, is set forth in Item 14 of the Basic Lease Provisions. Any
such notice or communication shall be deemed to have been given either at the
time of personal delivery or, in the case of delivery service or mail, as of
the date of first attempted delivery at the address and in the manner provided
herein, or in the case of telegram or telex or fax, upon receipt.
ARTICLE 15--MISCELLANEOUS PROVISIONS
SECTION 15.1 BUILDING NAME AND ADDRESS. Tenant shall not, without the written
consent of Landlord, use the name of the Building for any purpose other than as
the address of the business to be conducted by Tenant in the Premises and in no
event shall Tenant acquire any rights in or to such names. Landlord shall have
the right at any time to change the name, number or designation by which the
Building is known.
SECTION 15.2 SIGNAGE. Tenant shall not inscribe, paint, affix or display any
signs, advertisements or notices on or in the Building, except for such tenant
identification information as Landlord customarily permits to be included or
shown on the directory in the main lobby and adjacent to or on the access door
or doors to the Premises. Directory information customarily shown on the
directory in the main lobby shall be a Landlord's cost.
SECTION 15.3 NO WAIVER. No waiver by Landlord or by Tenant of any provision of
this Lease shall be deemed to be a waiver by either party of any other
provision of this Lease. No waiver by Landlord of any breach by Tenant shall be
deemed a waiver of any subsequent breach by Tenant of the same or any other
provision. No waiver by Tenant of any breach by Landlord shall be deemed a
waiver of any subsequent breach by Landlord of the same or any other provision.
The failure of Landlord or Tenant to insist at any time upon the strict
performance of any covenant or agreement or to exercise any option, right,
power or remedy contained in this Lease shall not be construed as a waiver or a
relinquishment thereof for the future. Landlord's consent to or approval of any
act by Tenant requiring Landlord's consent or approval shall not be deemed to
render unnecessary the obtaining of Landlord's consent to or approval of any
subsequent act of Tenant. Tenant's consent to or approval of any act by
Landlord requiring Tenant's consent or approval shall not be deemed to render
unnecessary the obtaining of Tenant's consent to or approval of any subsequent
act of Landlord. No act or thing done by Landlord or Landlord's agents during
the term of this Lease shall
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be deemed an acceptance of a surrender of the Premises, unless done in writing
signed by Landlord. The delivery of the keys to any employee or agent of
Landlord shall not operate as a termination of this Lease or a surrender of the
Premises. The acceptance of any Rent by Landlord following a breach of this
Lease by Tenant shall not constitute a waiver by Landlord of such breach or any
other breach. The payment of Rent by Tenant following a breach of this Lease by
Landlord shall not constitute a waiver by Tenant of any such breach or any
other breach. No waiver by Landlord or Tenant of any provision of this Lease
shall be deemed to have been made unless such waiver is expressly stated in
writing signed by the waiving party. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly installment of Rent due under this
Lease shall be deemed to be other than on account of the earliest Rent due
hereunder, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed an accord and satisfaction
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other remedy which may
be available to Landlord.
SECTION 15.4 APPLICABLE LAW. This Lease shall be governed by and construed in
accordance with the laws of the State of Texas.
SECTION 15.5 COMMON AREAS, SERVICE CORRIDORS AND SERVICE AREAS. "COMMON AREAS"
will mean all areas, spaces, facilities and equipment (whether or not located
within the Building) made available by Landlord for the common and joint use of
Landlord, Tenant and others designated by Landlord using or occupying space in
the Building, including but not limited to, tunnels, walkways, sidewalks and
driveways necessary for access to the Building, Building lobbies, landscaped
areas, public corridors, public rest rooms, Building stairs, elevators open to
the public, service elevators (provided that such service elevators shall be
available only for tenants of the Building and others designated by Landlord),
drinking fountains and any such other areas and facilities, if any, as are
designated by Landlord from time to time as Common Areas. Common Areas shall
not include the parking areas of the Parking Facilities, and the use of any
such parking areas shall be subject to the provisions of EXHIBIT F attached
hereto. "SERVICE CORRIDORS" shall mean all loading docks, loading areas and all
corridors that are not open to the public but which are available for use by
Tenant and others designated by Landlord. "SERVICE AREAS" will refer to areas,
spaces, facilities and equipment serving the Building (whether or not located
within the Building) but to which Tenant and other occupants of the Building
will not have access, including, but not limited to, mechanical, telephone,
electrical and similar rooms and air and water refrigeration equipment. Tenant
is hereby granted a nonexclusive right to use the Common Areas and Service
Corridors during the term of this Lease for their intended purposes, in common
with others designated by Landlord, subject to the terms and conditions of this
Lease, including, without limitation, the Rules and Regulations. The Building,
Common Areas, Service Corridors and Service Areas will be at all times under
the exclusive control, management and operation of the Landlord. Tenant agrees
and acknowledges that the Premises (whether consisting of less than one floor
or consisting of one or more full floors within the Building) do not include,
and Landlord hereby expressly reserves for its sole and exclusive use, any and
all mechanical, electrical, telephone and similar rooms, janitor closets,
elevator, pipe and other vertical shafts and ducts, flues, stairwells, any area
above the acoustical ceiling and any other areas not specifically shown on
EXHIBIT B as being part of the Premises. Tenant acknowledges that pipes, ducts,
conduits, wires and equipment serving
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other parts of the Building may be located above acoustical ceiling surfaces,
below floor surfaces or within walls in the Premises.
SECTION 15.6 SUCCESSORS AND ASSIGNS. Subject to Article 11 hereof, all of the
covenants, conditions and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
SECTION 15.7 BROKERS. Tenant warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this Lease,
excepting only the brokers named in Item 10. of the Basic Lease Provisions and
that it knows of no other real estate brokers or agents who are or might be
entitled to a commission in connection with this Lease. Tenant agrees to
indemnify and hold harmless Landlord from and against any liability or claim,
whether meritorious or not, arising in respect to brokers and/or agents not so
named. Landlord has agreed to pay the fees of the brokers (but only the broker)
named in Item 10 of the Basic Lease Provisions to the extent that Landlord has
agreed to do so pursuant to a written agreement with such broker.
SECTION 15.8 SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the application of such provisions to other persons or circumstances
and the remainder of this Lease shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
SECTION 15.9 EXAMINATION OF LEASE. Submission by Landlord of this instrument to
Tenant for examination or signature does not constitute a reservation of or
option for lease. This Lease will be effective as a lease or otherwise only
upon execution by and delivery to both Landlord and Tenant.
SECTION 15.10 INTEREST ON TENANT'S OBLIGATIONS. Any amount due from Tenant to
Landlord which is not paid within thirty (30) days after the date due shall
bear interest at the lower of (i) eighteen percent (18%) per annum or (ii) the
highest rate from time to time allowed by applicable law, from the date such
payment is due until paid, but the payment of such interest shall not excuse or
cure the default.
SECTION 15.11 TIME. Time is of the essence in this Lease and in each and all of
the provisions hereof. Whenever a period of days is specified in this Lease,
such period shall refer to calendar days unless otherwise expressly stated in
this Lease.
SECTION 15.12 DEFINED TERMS AND MARGINAL HEADINGS. The words "Landlord" and
"Tenant" as used herein shall include the plural as well as singular. If more
than one person is named as Tenant, the obligations of such persons are joint
and several. The headings and titles to the articles, sections and subsections
of this Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part of this Lease.
SECTION 15.13 AUTHORITY OF TENANT. Tenant and each person signing this Lease on
behalf of Tenant represents to Landlord as follows: Tenant, if a corporation,
is duly incorporated and legally existing under the laws of the state of its
incorporation and is duly qualified to do
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business in the State of Texas. Tenant, if a partnership or joint venture, is
duly organized under the Texas Uniform Partnership Act. Tenant, if a limited
partnership, is duly organized under the applicable limited partnership act of
the State of Texas or, if organized under the laws of a state other than Texas,
is qualified under said Texas limited partnership act. Tenant has all requisite
power and all governmental certificates of authority, licenses, permits,
qualifications and other documentation to lease the Premises and to carry on
its business as now conducted and as contemplated to be conducted. Each person
signing on behalf of Tenant is authorized to do so. The foregoing
representations in this Section 15.13 shall also apply to any corporation,
partnership, joint venture or limited partnership which is a general partner or
joint venturer of Tenant. Landlord is duly incorporated and legally existing
under the laws of the state of its incorporation and is duly qualified to do
business in the State of Texas. Landlord has all requisite power and all
governmental certificates of authority, licenses, permits, qualifications and
other documentation to operate the Building as now operated and as contemplated
to be operated. Each person signing on behalf of Landlord is authorized to do
so.
SECTION 15.14 FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Landlord or Tenant, the party taking the action shall not
be liable or responsible for, and there shall be excluded from the computation
for any such period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, war, governmental laws, regulations or
restrictions or any other causes of any kind whatsoever which are beyond the
reasonable control of such party (each of the foregoing is herein referred to
as an "event of force majeure" or "force majeure"); provided, however, in no
event shall the foregoing apply to the financial obligations of either Landlord
or Tenant to the other under this Lease, including Tenant's obligation to pay
Basic Annual Rent, Additional Rent or any other amount payable to Landlord
hereunder.
SECTION 15.15 RECORDING. This Lease shall not be recorded. However, Landlord
shall have the right to record a short form or memorandum hereof, at Landlord's
expense, at any time during the term hereof and, if requested, Tenant agrees
(without charge to Landlord) to join in the execution thereof.
SECTION 15.16 NO REPRESENTATIONS. Landlord and Landlord's agents have made no
warranties, representations or promises (express or implied) with respect to
the Premises, the Building or any other part of the Property (including,
without limitation, the condition, use or suitability of the Premises, the
Building or the Property), except as herein expressly set forth and no rights,
easements or licenses are acquired by Tenant by implication or otherwise except
as expressly set forth in the provisions of this Lease.
SECTION 15.17 PARKING. EXHIBIT F attached hereto sets forth the agreements
between Landlord and Tenant relating to parking. Parking and delivery areas for
all vehicles shall be in accordance with parking regulations established from
time to time by Landlord, with which Tenant agrees to conform. Tenant shall
only permit parking by its employees, customers and agents of automobiles in
appropriate designated parking areas.
SECTION 15.18 ATTORNEYS' FEES. In the event of any legal action or proceeding
brought by either party against the other arising out of this Lease, the
prevailing party shall be entitled to
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recover reasonable attorneys' fees and costs incurred in such action
(including, without limitation, all costs of appeal) and such amount shall be
included in any judgment rendered in such proceeding.
SECTION 15.19 NO LIGHT, AIR OR VIEW EASEMENT. Any diminution or shutting off of
light, air or view by any structure which may be erected on the Property or
lands adjacent to the Property shall in no way affect this Lease or impose any
liability on Landlord (even if Landlord is the adjacent land owner).
SECTION 15.20 RELOCATION. Upon 120 days advance written notice to Tenant (the
"RELOCATION NOTICE"), Landlord shall have the right to relocate Tenant to other
space in the Building above the 23rd floor of the Building (the "SUBSTITUTE
PREMISES") provided the rentable area of such other space is not more than 110%
or less than 90% of the rentable area of the Premises, and further provided the
ratio of interior space to exterior window space is substantially similar to
such ratio for the current premises. Landlord shall pay all reasonable
out-of-pocket expenses of any such relocation, including the expenses of moving
and construction of improvements substantially similar to the leasehold
improvements in the premises as of the date of this lease and other leasehold
improvements installed in the premises after the date of this Lease with the
written consent of Landlord and prior to the date of the Relocation Notice,
subject to the condition that Landlord shall have the right to use all or any
of such improvements in connection with the construction of the improvements in
the Substitute Premises. In the event of such relocation, this Lease shall
continue in full force and effect without any change in the terms or other
conditions, except that the Substitute Premises shall be the Premises and an
EXHIBIT B showing the Substitute Premises shall be substituted for the EXHIBIT
B attached hereto. If requested by Landlord, Tenant shall execute an amendment
to this Lease evidencing the foregoing.
SECTION 15.21 SURVIVAL OF INDEMNITIES. Each indemnity agreement and hold
harmless agreement contained herein shall survive the expiration or termination
of this Lease.
SECTION 15.22 ENTIRE AGREEMENT. This Lease contains all of the agreements of
the parties hereto with respect to any matter covered or mentioned in this
Lease and no prior agreement, understanding or representation pertaining to any
such matter shall be effective for any purpose. No provision of this Lease may
be amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Lease,
as of the date first written in this Lease.
LANDLORD
DALLAS MAIN CENTER LIMITED PARTNERSHIP,
a Delaware limited partnership
BY: Premisys Real Estate Services, Inc.,
a Delaware corporation, its duly
authorized agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
TENANT
AMERICAN PHYSICIAN PARTNERS, INC., a
Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT A
LAND LEGAL DESCRIPTION
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of _________________, 199____, executed by and between DALLAS MAIN
LIMITED PARTNERSHIP, a Delaware limited partnership, and AMERICAN PHYSICIAN
PARTNERS, INC., a Delaware corporation (the "Lease"). Any capitalized term not
defined herein shall have the meaning assigned to it in the provisions of the
Lease identified as the Basic Lease Provisions or Supplemental Lease
Provisions, as applicable. Landlord and Tenant mutually agree that the attached
legal description is the legal description of the Land:
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EXHIBIT B
FLOOR PLAN
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of ___________________, 199___, executed by and between DALLAS MAIN
CENTER LIMITED PARTNERSHIP, a Delaware limited partnership, and AMERICAN
PHYSICIAN PARTNERS, INC., a Delaware corporation (the "Lease"). Any capitalized
term not defined herein shall have the meaning assigned to it in the provisions
of the Lease identified as the Basic Lease Provisions or Supplemental Lease
Provisions, as applicable. Landlord and Tenant mutually agree that the attached
Floor Plan is the Floor Plan for the Premises:
PREPARER OF LEASE FORM TO ATTACH FLOOR PLAN
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EXHIBIT C
OPERATING COSTS AND EXCLUSIONS FROM OPERATING COSTS
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of , 199 , executed by and between DALLAS MAIN CENTER LIMITED
PARTNERSHIP, a Delaware limited partnership, and AMERICAN PHYSICIAN PARTNERS,
INC., a Delaware corporation (the "Lease"). Any capitalized term not defined
herein shall have the meaning assigned to it in the provisions of the Lease
identified as the Basic Lease Provisions or Supplemental Lease Provisions, as
applicable.
1. OPERATING COSTS. Operating Costs shall include, but not be limited to,
the following (but shall specifically exclude Exclusions from Operating Costs
(hereinafter defined)):
(a) insurance premiums ("INSURANCE PREMIUMS") paid by Landlord to
maintain insurance pursuant to this Lease, the costs of which
may include (x) an allocation of a reasonable portion of the
premium of a blanket insurance policy maintained by Landlord
and, (y) in the case of self insurance, the cost which Landlord
would have incurred if it had maintained third party insurance
instead of self-insurance;
(b) water, sewer and other utility charges ("UTILITY EXPENSES")
that are not Energy Costs;
(c) service, testing, repairs (including replacement of component
parts) and other charges incurred in the operation, maintenance
and repair of the elevators and the plumbing, electrical, fire
sprinkler, life safety, security, heating, ventilation,
mechanical and air conditioning systems;
(d) Building standard services, including, HVAC, water, elevators,
life safety, window cleaning, general cleaning and other
janitorial services (including materials, supplies, Building
standard light bulbs and ballasts, equipment and tools therefor
and rental costs related to any of the foregoing), as well as
contracts with third parties to provide same;
(e) garbage, trash and waste disposal;
(f) tools and supplies costs;
(g) repair costs (including replacements of components which are
not required to be capitalized under GAAP);
(h) costs of landscaping (indoor and outdoor), including landscape
maintenance and sprinkler maintenance costs and rental and
supply costs in connection therewith;
(i) security and alarm services;
(j) license, permit and inspection fees;
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(k) management fees, provided that if Landlord or an Affiliate of
Landlord manages the Property, the amount included for
management fees will not exceed the management fee typically
charged by independent management companies that have
capabilities and expertise in the management of properties in
the Dallas, Texas central business district similar to the
capabilities of Landlord or Landlord's Affiliate;
(l) Landlord's reasonable overhead and administrative expenses
directly attributable to management of the Property;
(m) wages and related benefits payable to employees, including
taxes and insurance relating thereto (at reasonable rates in
relationship to the market for comparable employees);
(n) accounting services;
(o) legal services, unless incurred in connection with transfer of
the Property, defense on claims asserted against Landlord,
enforcement as to tenant defaults or lease negotiations;
(p) expenses and fees (including attorneys' fees) incurred in
contesting the validity or applicability of any governmental
enactments which may affect Operating Costs;
(q) business or excise taxes payable on account of Landlord's
ownership or operation of the Property or any portion thereof
(excluding any inheritance, estate succession, transfer, gift,
franchise, corporation, income or profits tax imposed upon
Landlord);
(r) compliance with any fire safety or other governmental rules,
regulations, laws, statutes, ordinances or requirements imposed
by any governmental authority or insurance company with respect
to the Building;
(s) the charges assessed against Landlord and /or the Property for
any easement maintained for the benefit of the Property or any
portion thereof, as well as the charges assessed against the
Property pursuant to any contractual covenants or recorded
declaration of covenants or the covenants, conditions and
restrictions of any other similar instrument affecting the
Property;
(t) maintaining, painting and repairing existing art work;
(u) all costs, expenses and fees (including attorneys' and
consultants' fees) incurred by Landlord in reviewing,
contesting (or negotiating with taxing authorities as to) Real
Estate Taxes and other assessments, excises, charges and levies
which are otherwise included in Operating Costs; and
(v) the expense of maintaining, repairing and replacing component
parts of the argon lighting system for the Tower.
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2. EXCLUSIONS FROM OPERATING COSTS. Notwithstanding any provisions herein
to the contrary, "EXCLUSIONS FROM OPERATING COSTS" shall mean (and
Operating Costs shall not include) the following costs:
(a) Real Estate Taxes;
(b) Additional Pass Through Costs;
(c) Tenant's Share of Variable Operating and Energy Costs Allocable
to Some Rentable Area;
(d) leasing commissions, attorneys' fees, costs and disbursements
and other expenses incurred in connection with marketing,
leasing, renovating or improving space for tenants or
prospective tenants of the Building;
(e) costs (including permit, license and inspection fees) incurred
in renovating or otherwise improving or decorating, painting or
redecorating space for tenants or vacant space;
(f) any of Landlord's costs for which Landlord knowingly provides
to another tenant of the Building and for which Landlord is
entitled to be reimbursed by such tenant as an additional
charge or rental over and above the base annual rent, energy
costs, operating costs, common area maintenance costs and
additional pass through costs payable under the lease with such
tenant or other occupant;
(g) any depreciation or amortization of the Building or any part
thereof, except as expressly permitted herein;
(h) interest on debt or amortization payments on mortgages, deeds
of trust or other debt, except as expressly permitted under the
definition of Operating Costs;
(i) costs which are required to be capitalized, as opposed to
expensed, under GAAP;
(j) costs incurred due to negotiations or disputes with tenants
(other than efforts and actions to enforce Building rules and
regulations or stop violations that would generally benefit all
or substantially all other tenants);
(k) compensation for employees to the extent such compensation is
allocable to the time spent by such employees on other
projects;
(l) income, franchise, death, gift and transfer taxes (as well as
penalties, interest and other charges payable as a result of
Landlord's delinquent payment thereof, unless such penalties,
interest and other charges are the result of Landlord's good
faith contest of the amount, validity or applicability of any
such taxes);
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(m) costs for which Landlord receives reimbursement (other than in
the form of rent) from insurers, condemning authorities, or
other tenants;
(n) expenses incurred in operating the Concourse or any club
(social or athletic) located on the Property; and
(o) advertising and promotional costs.
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EXHIBIT D
WORK LETTER
FINISH ALLOWANCE
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of ______________________, 199___, executed by and between DALLAS MAIN
CENTER LIMITED PARTNERSHIP, a Delaware limited partnership, and AMERICAN
PHYSICIAN PARTNERS, INC., a Delaware corporation (the "Lease"). Any capitalized
term not defined herein shall have the meaning assigned to it in the provisions
of the Lease identified as the Basic Lease Provisions or Supplemental Lease
Provisions, as applicable. Landlord and Tenant mutually agree as follows:
1. PLANS.
1.1 Space Plan. Landlord and Tenant have agreed to a space plan for the
Premises dated ___________, 1996, prepared by _______________. Tenant
represents to Landlord that it provided the space planner and/or
architect, as applicable, with all information needed to cause
compliance with the Disability Acts. TENANT SHALL BE RESPONSIBLE FOR
AND SHALL INDEMNIFY AND HOLD HARMLESS LANDLORD FROM AND AGAINST ANY AND
ALL CLAIMS, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT LIMITATION
REASONABLE ATTORNEYS' FEES AND EXPENSES) INCURRED BY OR ASSERTED
AGAINST LANDLORD BY REASON OF OR IN CONNECTION WITH ANY VIOLATION OF
THE DISABILITY ACTS ARISING FROM OR OUT OF (x) information or design
and space plans furnished to Landlord by Tenant (or the lack of
complete and accurate information so furnished) concerning Tenant's
Improvements, (y) Tenant's employer-employee obligations, or (z) after
the Commencement Date, violations by Tenant and/or Tenant's
Improvements or the Premises not being in compliance with the
Disability Acts as the result of changes in regulations or law or
interpretations thereof not in effect on the Commencement Date. The
foregoing indemnity shall not include any claims, liabilities or
expenses (including reasonable attorneys' fees and expenses) arising
out of the negligence or gross negligence of Landlord or Landlord's
employees, agents or contractors. Without limiting the foregoing, if
Landlord constructs Tenant's Improvements based on any special
requirements or improvements required by Tenant, or upon information
furnished by Tenant that later proves to be inaccurate or incomplete
resulting in any violation of the Disability Acts, Tenant shall be
solely liable to correct such violations and to bring the improvements
into compliance with the Disability Acts as promptly as is practicable.
1.2 Changes to Approved Plans. If any re-drawing or re-drafting of either
the Space Plan is necessitated by Tenant's requested changes (all of
which shall be subject to approval by Landlord and, if applicable, the
Texas Department of Licensing & Regulation and any other governmental
agency or authority to which the plans and specifications are required
to be submitted), the expense of any such re-drawing or re-drafting
required in connection therewith and the expense of any work and
improvements necessitated by such re-drawing or re-drafting will be
charged to Tenant.
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2. CONSTRUCTION AND COSTS OF TENANT'S IMPROVEMENTS.
2.1 Construction Obligation and Finish Allowance.
(a) Landlord agrees to construct Tenant's Improvements, at Tenant's
cost and expense; provided, however, Landlord shall provide
Tenant with an allowance up to $1.00 per square foot of Rentable
Area in the Premises (the "FINISH ALLOWANCE"), which allowance
shall be disbursed by Landlord, from time to time, for payment
of (in the following priority) the following costs (collectively
referred to as the "PERMITTED COSTS"): (i) the contract sum
required to be paid to the general contractor engaged to
construct Tenant's Improvements (the "CONTRACT SUM"), (ii) the
fees of the preparer of the Construction Plans, and (iii) such
other costs related to relocating to or moving into the
Premises.
(b) Title to any equipment, appliances, furnishings or personalty
installed in the Premises and purchased with any portion of the
Finish Allowance shall pass to Landlord upon payment of the
invoice cost thereof and Tenant shall not remove any such
equipment, appliances, furnishings or personalty from the
Premises without Landlord's express, prior written consent or
unless requested by Landlord in connection with the expiration
or earlier termination of the Lease.
(c) "TENANT'S IMPROVEMENTS" are hereby defined to mean the
following:
(a) changing existing hardware in the Premises to Building
standard levard hardware;
(b) cleaning carpets; and
(c) install demising wall shown on Schedule I attached to this
Work Letter.
2.2 Bidding. Within five (5) days after both Landlord and Tenant agree to
the Construction Plans, Landlord shall request at least three (3)
mutually acceptable contractors authorized to perform work in the
Building to bid the construction of Tenant's Improvements under a lump
sum contract. Landlord agrees that Tenant shall have the right to
participate in the preparation of the bid instructions, attend the bid
opening, and clarify and qualify all bids. Tenant shall have three (3)
business days after the bid opening within which to accept one of the
submitted bids. Tenant shall have the right to required submitters of
bids to clarify their bids, if necessary, provided, however, no
contractor shall be permitted to deliver clarifications more than three
(3) business days after bid opening. If Tenant fails to accept one of
the submitted bids by the expiration of the third business day
following opening of bids, then Tenant shall be deemed to have approved
the lowest submitted bid. Landlord and Tenant must approve (or be
deemed to have approved) the Contract Sum for the construction of
Tenant's Improvements in writing prior to the commencement of
construction.
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2.3 Excess Costs. If the sum of the Permitted Costs exceeds the Finish
Allowance, then Tenant shall pay all such excess costs ("EXCESS
COSTS"). Tenant shall remit to Landlord an amount (the "PREPAYMENT")
equal to the projected Excess Costs, if any, within five (5) working
days after commencement of construction by Landlord. On or prior to the
Commencement Date, Tenant shall deliver to Landlord the actual Excess
Costs, minus the Prepayment previously paid. Failure by Tenant to
timely tender to Landlord the full Prepayment shall permit Landlord to
stop all work until the Prepayment is received. All sums due Landlord
under this Section 2.3 shall be considered Rent under the terms of the
Lease and nonpayment shall constitute a default under the Lease and
entitle Landlord to any and all remedies specified in the Lease.
2.4 Liens Arising from Excess Costs. Tenant agrees to keep the Premises
free from any liens arising out of nonpayment of Excess Costs. In the
event that any such lien is filed and Tenant, within ten (10) days
following such filing fails to cause same to be released of record by
payment or posting of a proper bond, Landlord shall have, in addition
to all other remedies provided herein and by law, the right, but not
the obligation, to cause the same to be released by such means as it in
its sole discretion deems proper, including payment of or defense
against the claim giving rise to such lien. All sums paid by Landlord
in connection therewith shall constitute Rent under the Lease and a
demand obligation of Tenant to Landlord and such obligation shall bear
interest at the rate provided for in Section 15.10 of the Supplemental
Lease Provisions from the date of payment by Landlord until the date
paid by Tenant.
3. DELAYS. Delays in the completion of construction of Tenant's
Improvements or in obtaining a certificate of occupancy, if
required by the applicable governmental authority, caused by Tenant,
Tenant's Contractors (hereinafter defined) or any person, firm or
corporation employed by Tenant or Tenant's Contractors shall constitute
"TENANT DELAYS". In the event that Tenant's Improvements are not
Substantially Complete by the Commencement Date referenced in Item 7 of
the Basic Lease Provisions, then the Commencement Date referenced in
Item 7 shall be amended to be the Adjusted Substantial Completion Date
(hereinafter defined) and the Expiration Date referenced in Item 8 of
the Basic Lease Provisions shall be adjusted forward by the same number
of days as is the Commencement Date, provided, however, if the such
adjusted Expiration Date is a day other than the last day of a calendar
month, the Expiration Date shall be further adjusted to the last day of
the applicable calendar month so that the term of the Lease will be the
term set forth in Item 6 of the Basic Lease Provisions. The Adjusted
Substantial Completion Date shall be the date Tenant's Improvements are
Substantially Complete, adjusted backward, however, by one day for each
day of Tenant Delays, if any. The foregoing adjustments in the
Commencement Date and the Expiration Date shall be Tenant's sole and
exclusive remedy in the event Tenant's Improvements are not
Substantially Complete by the initial Commencement Date set forth in
Item 8 of the Basic Lease Provisions.
4. SUBSTANTIAL COMPLETION AND PUNCH LIST. The terms "SUBSTANTIAL
COMPLETION" and "SUBSTANTIALLY COMPLETE", as applicable, shall mean
when Tenant's Improvements are sufficiently completed in accordance
with the Construction Plans so that Tenant can reasonably use the
Premises for the Permitted Use (as described in Item 11 of the Basic
Lease Provisions). When Landlord considers Tenant's Improvements to be
Substantially Complete, Landlord will notify Tenant and within two (2)
business days thereafter, Landlord's
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representative and Tenant's representative shall conduct a walk-through
of the Premises and identify any necessary touch-up work, repairs and
minor completion items as are necessary for final completion of
Tenant's Improvements. Neither Landlord's representative nor Tenant's
representative shall unreasonably withhold his agreement on punch list
items. Landlord will use reasonable efforts to cause the contractor to
complete all punch list items within thirty (30) days after agreement
thereon.
5. TENANT'S CONTRACTORS. If Tenant should desire to enter the Premises or
authorize its agent to do so prior to the Commencement Date of the
Lease, to perform approved work not requested of the
Landlord, Landlord shall permit such entry if:
(a) Tenant shall use only such contractors which Landlord shall
approve in its reasonable discretion and Landlord shall have
approved the plans to be utilized by Tenant, which approval
will not be unreasonably withheld; and
(b) Tenant, its contractors, workmen, mechanics, engineers, space
planners or such others as may enter the Premises
(collectively, "TENANT'S CONTRACTORS"), work in harmony with
and do not in any way disturb or interfere with Landlord's
space planners, architects, engineers, contractors, workmen,
mechanics or other agents or independent contractors in the
performance of their work (collectively, "LANDLORD'S
CONTRACTORS"), it being understood and agreed that if entry of
Tenant or Tenant's Contractors would cause, has caused or is
causing a material disturbance to Landlord or Landlord's
Contractors, then Landlord may, with notice, refuse admittance
to Tenant or Tenant's Contractors causing such disturbance; and
(c) Tenant (notwithstanding the first sentence of subsection 7.201
of the Supplemental Lease Provisions), Tenant's Contractors and
other agents shall provide Landlord sufficient evidence that
each is covered under such Worker's Compensation, public
liability and property damage insurance as Landlord may
reasonably request for its protection.
Landlord shall not be liable for any injury, loss or damage to any of
Tenant's installations or decorations made prior to the Commencement
Date and not installed by Landlord. Tenant shall indemnify and hold
harmless Landlord and Landlord's Contractors from and against any and
all costs, expenses, claims, liabilities and causes of action arising
out of or in connection with work performed in the Premises by or on
behalf of Tenant (but excluding work performed by Landlord or
Landlord's Contractors). Landlord is not responsible for the function
and maintenance of Tenant's Improvements which are different than
Landlord's standard improvements at the Property or improvements,
equipment, cabinets or fixtures not installed by Landlord. Such entry
by Tenant and Tenant's Contractors pursuant to this Section 5 shall be
deemed to be under all of the terms, covenants, provisions and
conditions of the Lease except the covenant to pay Rent.
6. CONSTRUCTION REPRESENTATIVES. Landlord's and Tenant's representatives
for coordination of construction and approval of change orders will be
as follows, provided that either party may change its representative
upon written notice to the other:
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LANDLORD'S REPRESENTATIVE:
NAME ▇▇▇▇▇ ▇▇▇▇▇▇
ADDRESS PREMISYS Real Estate Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
PHONE 214/▇▇▇-▇▇▇▇
FAX: 214/761-6108
TENANT'S REPRESENTATIVE:
NAME ▇▇▇▇ ▇▇▇▇▇
ADDRESS American Physician Partners, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
PHONE 214/▇▇▇-▇▇▇▇
FAX 214/____________
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EXHIBIT E
ACCEPTANCE OF PREMISES MEMORANDUM
This Acceptance of Premises Memorandum is being executed pursuant to that
certain Lease Agreement (the "LEASE") dated the _____ day of __________, 19__ ,
between DALLAS MAIN CENTER LIMITED PARTNERSHIP, a Delaware limited partnership
("LANDLORD"), and AMERICAN PHYSICIAN PARTNERS, INC., a Delaware corporation
("Tenant"), pursuant to which Landlord leased to Tenant and Tenant leased from
Landlord certain space in the office building located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ (the "BUILDING"). Landlord and Tenant hereby agree that:
1. Except for the Punch List Items (as shown on the attached Punch List),
Landlord has fully completed the construction work required under the
terms of the Lease and the Work Letter attached thereto.
2. The Premises are tenantable, Landlord has no further obligation for
construction (except with respect to Punch List Items) and Tenant
acknowledges that the Building, the Premises and Tenant's Improvements
are satisfactory in all respects, except for the Punch List Items and
are suitable for the Permitted Use.
3. The Commencement Date of the Lease is the _____ day of
__________________________, 19___. If the date set forth in Item 8 of
the Basic Lease Provisions is different than the date set forth in the
preceding sentence, then Item 8 of the Basic Lease Provisions is hereby
amended to be the Commencement Date set forth in the preceding
sentence.
4. The Expiration Date of the Lease is the _____ day of
_________________________, 19___. If the date set forth in Item 9 of
the Basic Lease Provisions is different than the date set forth in the
preceding sentence, then Item 9 of the Basic Lease Provisions is hereby
amended to be the Expiration Date set forth in the preceding sentence.
5. Tenant acknowledges receipt of the current Rules and Regulations for
the Building.
6. Tenant's telephone number at the Premises is ________________________.
Tenant's facsimile number at the Premises is
___________________________.
7. All capitalized terms not defined herein shall have the meaning
assigned to them in the Lease.
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Agreed and Executed this ___________ day of ________________________, 19___.
LANDLORD
DALLAS MAIN CENTER LIMITED
PARTNERSHIP, a Delaware limited
partnership,
By: Premsis Real Estate Services, Inc.
its duly authorized agent
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
TENANT
AMERICAN PHYSICIAN PARTNERS, INC.,
a Delaware corporation
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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EXHIBIT F
GARAGE PARKING AGREEMENT
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of ___________________, 199___, executed by and between DALLAS MAIN
CENTER LIMITED PARTNERSHIP, a Delaware limited partnership, and AMERICAN
PHYSICIAN PARTNERS, INC., a Delaware corporation (the "LEASE"). Any capitalized
term not defined herein shall have the meaning assigned to it in the provisions
of the Lease identified as the Basic Lease Provisions or Supplemental Lease
Provisions, as applicable. Landlord and Tenant mutually agree as follows:
1. PARKING SPACES.
(a) So long as the Lease of which this Exhibit is a part shall
remain in effect, Tenant may rent in the Parking Garage up to a
number of parking spaces equal to 1 space per square feet of
rentable area from time to time included in the office use
portion of the Premises (such spaces, the "PARKING GARAGE
SPACES"). The number of Parking Garage Spaces to which Tenant
is entitled in respect of the initial Premises is hereby agreed
to be eight (8), up to _______ of which Tenant may elect to be
reserved.
(b) Tenant may elect to convert three (3) non-reserved Parking
Garage Spaces to one (1) parking space in the Executive Parking
Garage. If Tenant makes such election, Tenant shall have the
right to reconvert the one parking space in the Executive
Parking Garage to three (3) non-reserved Parking Spaces in the
Parking Garage.
2. PARKING RENTAL. For each Parking Garage Space used by Tenant, Tenant
shall pay rent equal to the market rent from time to time charged by
Landlord for parking spaces in the Parking Garage, which market rent is
currently $110.00 per month per unreserved space and $157.50 per month
per reserved space. Landlord shall give Tenant at least thirty (30)
written days' notice of any change in the monthly parking rate for
Parking Garage Spaces prior to instituting such new monthly rate. All
payments of rent for parking spaces shall be made (i) at the same time
as Basic Monthly Rent is due under the Lease and (ii) to Landlord or to
such persons (for example but without limitation, the manager of the
Parking Garage) as Landlord may direct from time to time.
3. PARKING CARDS. Landlord will provide Tenant with an access card for
each parking space to which Tenant is entitled. Parking cards and
stickers or any other device or form of identification supplied by
Landlord shall remain the property of Landlord and shall not be
transferable. There will be a reasonable replacement charge payable by
Tenant equal to the amount posted from time to time by Landlord for
loss of any magnetic parking card or parking sticker issued by
Landlord.
4. VALIDATION. Tenant may validate visitor parking, by such method or
methods as Landlord or the Parking Facility operator may approve, at
the validation rate from time to time generally applicable to visitor
parking. Tenant shall pay Landlord for the parking rent generated
through Tenant's validations within thirty (30) days after receiving a
written demand therefor. Landlord expressly reserves the right to
redesignate parking areas and to modify the parking structure for other
uses or to any extent, but in no event will Tenant's parking spaces be
reduced by reason of any such redesignation or modification.
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5. DAMAGE TO OR CONDEMNATION OF GARAGE. If Landlord fails or is unable to
provide any parking space to Tenant in either Parking Facility because
of damage or condemnation, such failure or inability shall never be
deemed to be a default by Landlord as to permit Tenant to terminate the
Lease, either in whole or in part, but Tenant's obligation to pay rent
for any such parking space which is not provided by Landlord shall be
abated for so long as Tenant does not have the use of such parking
space and such abatement shall constitute full settlement of all claims
that Tenant might otherwise have against Landlord by reason of such
failure or inability to provide Tenant with such parking space.
6. RULES AND REGULATIONS. A condition of any parking shall be compliance
by the ▇▇▇▇▇▇ with Parking Facility rules and regulations, including
any sticker or other identification system established by Landlord.
Parking Facility managers or attendants are not authorized to make or
allow any exceptions to these Rules and Regulations. The following
rules and regulations are in effect until notice is given to Tenant of
any change. Landlord reserves the right to modify and/or adopt such
other reasonable and generally applicable rules and regulations for a
Parking Facility as it deems necessary for the operation of such
Parking Facility.
(a) Cars must be parked entirely within the stall lines painted on
the floor.
(b) All directional signs and arrows must be observed.
(c) The speed limit shall be five (5) miles per hour.
(d) Parking is prohibited in areas not striped for parking, aisles,
areas where "no parking" signs are posted, in cross hatched
areas and in such other areas as may be designated by Landlord
or Landlord's agent(s) including, but not limited to, areas
designated as "Visitor Parking" or reserved spaces not rented
under this Exhibit.
(e) Every ▇▇▇▇▇▇ is required to park and lock his own car. All
responsibility for damage to cars or persons or loss of
personal possessions is assumed by the ▇▇▇▇▇▇.
(f) Spaces which are designated for small, intermediate or
full-sized cars shall be so used. No intermediate or full-size
cars shall be parked in parking spaces limited to compact cars.
7. DEFAULT. If Tenant fails to pay the rent for and Parking Garage Space
as and when due hereunder and such failure continues for a period of
thirty (30) days after Tenant receives written notice of such failure,
then, in addition to any other remedies permitted under the Lease,
Landlord may terminate Tenant's right to use of such Parking Garage
Space or Spaces, as applicable. In addition, if Tenant has an
arrangement with any of its employees or other permitted users of its
Parking Spaces to pay the rent for the Parking Space used by such
employee or other user, (i) such arrangement will in no way affect
Tenant's obligation to pay rent for such space as and when due
hereunder, and (ii) if Landlord does not receive the rent for the space
used by such party more than two (2) times in any 12-month period, then
Landlord may prohibit that party from any further use of the Parking
Facilities. Landlord may refuse to permit any person who violates the
rules to park in the Parking Facilities and any violation of the rules
shall subject the car to removal at the car owner's expense. No such
refusal or removal shall create any liability on Landlord or be deemed
to interfere with Tenant's right to quiet possession of the Premises.
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EXHIBIT G
RULES AND REGULATIONS
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of _____________________, 199____, executed by and between DALLAS MAIN
CENTER LIMITED PARTNERSHIP, a Delaware Limited Partnership and AMERICAN
PHYSICIAN PARTNERS, INC., a Delaware corporation (the "Lease"). Any capitalized
term not defined herein shall have the meaning assigned to it in the provisions
of the Lease identified as the Basic Lease Provisions or Supplemental Lease
Provisions, as applicable.
1. Except as specifically provided for in this Lease, no sign, placard,
picture, advertisement, name or notice will be inscribed, displayed or
printed or affixed on or to any part of the outside or inside of the
Building or the Premises without the written consent of Landlord first
having been obtained.
2. Any directory of the Building provided by Landlord will be exclusively
for the display of the name and location of tenants in the Building,
and, subject to Tenant's rights under the Supplemental Lease
Provisions, Landlord reserves the right to exclude any other names
therefrom and may limit the number of listings per tenant.
3. Tenant will not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the Premises. No awnings or other projections will be
attached to the outside walls and roof of the Building without prior
written consent of Landlord. No curtains, blinds, shades or screens
will be attached to or hung in or used in connection with any window or
door of the premises without the prior consent of Landlord.
4. "NORMAL BUSINESS HOURS" for purposes of Landlord's obligation to
provide air conditioning (both heating and cooling) will mean 7:00 a.m.
to 6:00 p.m. Monday through Friday and 7:00 a.m. to 2:00 p.m. on
Saturday except for the following holidays ("RECOGNIZED HOLIDAYS"): New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving and
Christmas.
5. The Premises will not be used for the manufacturing or storage of
merchandise except as such storage may be incidental to the use of the
Premises for the purposes permitted in this Lease. The Premises will
not be used for lodging, sleeping or for any illegal purposes.
6. The sidewalks, halls, passages, exits, entrances, elevators and
stairways will not be obstructed by any of the tenants or be used by
them for any purpose other than for ingress to and egress from their
respective leased premises. The halls, passages, exits, entrances,
elevators, stairways, terraces and roof are not for the use of the
general public, and Landlord will in all cases retain the right to
control and prevent access thereto by all persons whose presence, in
the judgment of Landlord, will be prejudicial to the safety, character,
reputation and interest of the Building and its tenants, provided that
nothing herein contained will be construed to prevent such access to
persons with whom Tenant normally deals in the ordinary course of
business, unless such persons are engaged in illegal activities. No
tenant and no employee or invitee of any tenant will go upon the roof
of Building.
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7. Except as expressly permitted in writing by Landlord, no additional
locks or bolts of any kind will be placed upon any of the doors or
windows by Tenant, nor will any changes be made to existing locks or
the mechanisms thereof. Landlord will furnish two (2) keys for each
lock it installs on the Premises without charge to Tenant. Landlord
will make a reasonable charge for any additional keys requested by
Tenant, and Tenant will not duplicate or obtain keys from any other
source. Tenant will upon the termination of the Term of this Lease
return to Landlord all keys so issued. Tenant will bear the cost for
the replacing or changing of any lock or locks due to any keys issued
to Tenant being lost.
8. The toilets and wash basins and other plumbing fixtures will not be
used for any purpose other than those for which they were constructed,
and no sweepings, rubbish, rags or foreign substances will be thrown
therein.
9 No furniture, freight or equipment of any kind will be brought into the
Building without the consent of Landlord, and all moving of the same
into or out of the Building will be done at such time and in such
manner as Landlord will designate. No furniture, packages, supplies,
equipment or merchandise will be received in the Building or carried up
or down in the elevators except between such hours and in such
elevators that will be designated by Landlord. There will not be used
in any space or in the public areas of the Building, either by Tenant
or others, any hand trucks except those equipped with rubber tires and
side guards.
10. No tenant will make or permit to be used any unseemly or disturbing
noises, or disturb or interfere with occupants of this or neighboring
buildings or leased premises, whether by the use of any musical
instrument, radio, phonograph, unusual noise or in any other way. No
tenant will throw anything out of doors or down the passage ways.
11. Tenant will not use or keep in the Premises or the Building any
kerosine, gasoline, or any flammable, combustible or explosive fluid,
chemical or substance or use any method of heating or air conditioning
other than those supplied or approved by Landlord.
12. Tenant will see that the windows and doors of the Premises are closed
and securely locked before leaving the Building. No tenant will permit
or suffer any windows to be opened in its premises while the air
conditioning is in operation except at the direction of Landlord.
Tenant must observe strict care and caution that all water facets and
other apparatus are entirely shut off before Tenant and Tenant's
employees leave the Building, and that all electricity, gas or air
conditioning will likewise be carefully shut off so as to prevent waste
or damage.
13. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who will in any manner do any act in
violation of any of the rules or regulations of the Building.
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14. The requirements of Tenant will be attended to only upon application at
the office of the Building. Employees of Landlord will not perform any
work or do anything outside of their regular duties unless under
special instructions from Landlord, and no employees will admit any
person (Tenant or otherwise) to any office without specific
instructions from Landlord.
15. No tenant will disturb, solicit or canvass any occupant of the
Building, nor will Tenant permit or cause others to do so, and Tenant
will cooperate to prevent same by others.
16. No vending machine or machines of any description will be installed,
maintained or operated upon the Premises without the written consent of
Landlord. Tenant will not permit in the Premises any cooking or the use
of apparatus for the preparation of any food or beverages (except for
use by Tenant's employees and where the Landlord has approved the
installation of cooking facilities as part of Tenant's leasehold
improvements), nor the use of any electrical apparatus likely to cause
an overload of the electrical circuits.
17. All persons entering and leaving the Building at any time other than
during normal business hours will register in the books kept by
Landlord at or near the night entrance or entrances, and Landlord will
have the right to prevent any persons entering or leaving the Building
unless provided with a key to the Premises to which such person seeks
entrance, and a pass in a form to be approved by Landlord and provided
at Tenant's expense. Any persons found in the Building at such times
without such keys or passes will be subject to the surveillance of the
employees and agents of Landlord. Landlord will be under no
responsibility for failure to enforce this rule.
18. Tenant will not use any janitor closets or telephone or electrical
closets for anything other than their originally intended purposes. In
the event Tenant will purchase privately owned communications equipment
for which telephone closets were not installed in connection with
initial occupancy of Tenant, such equipment will not be installed in
existing telephone closets.
19. Tenant's right to have heavy furnishings, equipment and files in the
Premises will be limited to items weighing less than the load-bearing
limits of floors within the Premises as established by Landlord. Heavy
items must be placed in locations approved in advance by Landlord. Upon
written demand from Landlord, Tenant will promptly remove from the
Premises any items which, in the judgment of Landlord, constitute a
structural overload on floors within the Premises. If Landlord approves
the presence of a heavy item for which reinforcement of the floor or
other precautionary measures are necessary, Tenant will bear the entire
cost of such reinforcement or other precautionary measures. If the
services of a structural engineer are, in the judgment of Landlord,
necessary to determine the location for and/or precautionary measures
to be taken in connection with any heavy load, Landlord will engage
such engineer, but the fees and expenses of such engineer will be paid
by Tenant upon demand.
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20. Tenant will not, without the prior written consent of Landlord, use the
name or any photograph, drawing or other likeness of the Building for
any purpose other than as the address of the business to be conducted
by Tenant in the Premises, nor will Tenant do or permit anything to be
done in connection with Tenant's business or advertising which, in the
reasonable judgment of Landlord, might mislead the public as to any
apparent connection or relationship between Landlord, the Building and
Tenant.
In the event there is any conflict between these Rules and Regulations and
the Supplemental Lease Provisions, the Supplemental Lease Provisions will
control.
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EXHIBIT H
ASBESTOS CONTAINING MATERIALS AND OTHER HAZARDOUS SUBSTANCES
This Exhibit is attached to and a part of that certain Lease Agreement
dated as of January 1, 1996, executed by and between DALLAS MAIN CENTER LIMITED
PARTNERSHIP, a Delaware limited partnership, and AMERICAN PHYSICIAN PARTNERS,
INC., a Delaware corporation ("Lease"). Any capitalized term not defined herein
shall have the meaning assigned to it in the provisions of the Lease identified
as the Basic Lease Provisions or Supplemental Lease Provisions, as applicable.
(a) A copy of the survey prepared by the independent contractor set forth
below (the "HAZARDOUS SUBSTANCE SURVEY") is available for Tenant's
inspection at the office of the Landlord. The purpose of the Hazardous
Substance Survey is to indicate the presence or absence of hazardous
or toxic materials (as defined in the Lease) at the Building based on
the present levels or content of said hazardous or toxic materials as
presently set by the U.S. Environmental Protection Agency ("EPA") or
the U.S. Occupational Safety and Health Administration ("OSHA").
However, Landlord has been advised by the independent contractor that
any such presence reflected in the Hazardous Substance Survey
identified below does not violate applicable Laws relating to such
materials or require removal or controls beyond those already
implemented by Landlord. Landlord makes no representations or
warranties whatsoever (express or implied) to Tenant regarding: (x)
the Hazardous Substance Survey (including, without limitation, the
contents, accuracy and/or scope thereof) and Landlord has informed
Tenant that said Hazardous Substance Survey is not a comprehensive
survey of the Building for all forms of hazardous or toxic materials,
including, but not limited to asbestos containing materials ("ACM"),
and cannot be relied upon as a representation that there are no other
hazardous or toxic materials, including but not limited to asbestos
and ACM, at the Premises or Building, whether addressed therein or
not; or (y) the presence or absence of other hazardous or toxic
materials in, at, or under the Premises or the Building. Tenant (a)
shall not rely on and has not relied on the Hazardous Substance
Survey, the same having been provided for informational purposes only
and (b) acknowledges that Tenant has taken such actions as Tenant
deems appropriate to fairly evaluate the Premises and has otherwise
satisfied itself that the Premises are acceptable and suitable from an
environmental perspective. Tenant shall furnish Landlord with a
complete and legible copy of any study, report, test, survey or
investigation performed by or on behalf of Tenant at any time
involving the Premises and shall fully restore all areas and
improvements where samples were taken or work performed and repair all
damage resulting from any of the same.
(b) Landlord shall, at its sole expense, have the right to conduct such
other surveys of the Building as Landlord shall elect for the purpose
of indicating the presence or absence of hazardous or toxic materials
at the Building based on the present levels or content of said
hazardous or toxic materials as presently set by the EPA or OSHA. In
the event that any such additional survey is performed and a copy
thereof is delivered to Tenant, such additional survey shall become a
part of the Hazardous Substance Survey.
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(c) In the event that Landlord ever implements an Operations and
Maintenance Program (the "O&M PROGRAM") with respect to any ACM
located in the Building, Tenant will be advised of such fact and shall
be give the opportunity to review the written document setting forth
the O&M Program. To reduce the risk that the ACM, if any, at the
Building is improperly disturbed or handled by untrained persons, all
maintenance, repairs and/or renovations by Tenant to any area of the
Premises or Building shown on the survey reflecting the existence of
ACM in the Building must be coordinated with and approved in advance
by Landlord. Tenant shall insure and hereby agrees that all
contractors and subcontractors engaged by Tenant agree in writing to
be bound by and will perform their work subject to the O&M Program.
Tenant agrees to cooperate with Landlord in all reasonable procedures
or actions necessary for the conduct of the O&M Program.
(d) TENANT SHALL INDEMNIFY AND HOLD LANDLORD HARMLESS FROM AND AGAINST ALL
CLAIMS, ACTIONS, LIABILITIES, DAMAGES, LOSSES, INJURIES OR DEATHS IN
CONNECTION WITH OR ARISING OUT OF OR FROM ANY INSPECTION, TESTING,
SAMPLING OR SIMILAR OR DISSIMILAR ACTIVITY CONDUCTED BY TENANT,
TENANT'S AGENTS OR CONTRACTORS AT THE PREMISES OR THE BUILDING FOR
HAZARDOUS OR TOXIC MATERIALS, WHETHER UNDER THIS RIDER OR OTHERWISE
UNDER OR IN CONNECTION WITH THIS LEASE.
LIST EACH HAZARDOUS SUBSTANCE SURVEY FOR THE PROPERTY PREPARED AT LANDLORD'S
REQUEST
CONTRACTOR TITLE OF SURVEY DATE OF SURVEY
---------- --------------- --------------
BCM ENGINEERS ASBESTOS BULK SAMPLE
INC. ANALYSIS FOR
NATIONSBANK BUILDING
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EXHIBIT I
TENANT'S RIGHT OF OPPORTUNITY
(BASIC RENT EQUAL TO FAIR MARKET RENT)
This Rider is attached to and a part of that certain Lease Agreement dated
as of ______________________, 199___, executed by and between DALLAS MAIN
CENTER LIMITED PARTNERSHIP, a New Jersey corporation and AMERICAN PHYSICIAN
PARTNERS, INC., a Delaware corporation (the "LEASE"). Any capitalized term not
defined herein shall have the meaning assigned to it in the provisions of the
Lease identified as the Basic Lease Provisions or Supplemental Lease
Provisions, as applicable. Landlord and Tenant mutually agree as follows:
A. Prior to leasing to a third party any of the portion of the
crosshatched area on the 23rd floor of the Building more particularly
described in Schedule A attached to this Rider (the "OPPORTUNITY
EXPANSION SPACE"), Landlord shall deliver to Tenant a written
statement ("Statement") setting forth (a) the name of a prospective
tenant interested in all or a portion of the Opportunity Expansion
Space and (b) Landlord's determination of the Fair Market Rent for the
applicable Opportunity Expansion Space. Tenant shall have five (5)
days after receipt of the Statement within which to notify Landlord in
writing that it elects to lease the applicable Opportunity Expansion
Space (each such written notice is herein referred to as a "Notice").
If Tenant elects to lease the applicable Opportunity Expansion Space
within such five (5) day period, then Tenant's election shall be
irrevocable and Tenant shall be deemed to have accepted Landlord's
determination of the Fair Market Rent. Failure by Tenant to notify
Landlord within such five (5) day period shall be deemed an election
by Tenant not to lease the applicable Opportunity Expansion Space and
Landlord shall have the right to lease such space. If Tenant elects
not to lease the applicable Opportunity Expansion Space or fails to
elect to lease the applicable Opportunity Expansion Space within such
5-day period, then Tenant's rights under this Exhibit shall be of no
further force or effect. Tenant understands and agrees that its rights
under this Rider with respect to the portion of the Opportunity
Expansion Space shall be subordinate to any expansion any renewal
rights granted in a lease executed prior to the date of this Lease.
B. The applicable Opportunity Expansion Space shall be leased to Tenant
upon all terms and conditions of this Lease with the following
exceptions:
(a) All Opportunity Expansion Space shall be delivered to Tenant
in "as is" condition.
(b) Basic Annual Rent for the applicable Opportunity Expansion
Space will be equal to the Fair Market Rent, which is hereby
defined to mean the then prevailing rents similar to the
Basic Annual Rent payable by tenants for premises within the
Building of equivalent quality, size, and utility as the
applicable Opportunity Expansion Space and leased for a term
approximately equal to the then remaining term of the Lease.
The Fair Market Rent will take into consideration, and Tenant
shall be entitled to, only the tenant inducements (inclusive
of the finish allowance) agreed to in the transactions
considered by Landlord in determining the Fair Market Rent.
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(c) the Basic Monthly Rent for the agreed rentable area of the
Opportunity Expansion Space will be equal to one-twelfth
(1/12th) of the Basic Annual Rent for the applicable
Opportunity Expansion Space.
(d) The Operating Expenses Stop and Real Estate Taxes Stop for
the entire Premises shall each be recalculated based on the
rentable area of the Premises following the addition of the
applicable Opportunity Expansion Space to the Premises.
(e) The dates for submission of the initial space plan and
construction plans shall be agreed to by Landlord and Tenant
within five (5) days after Tenant elects to lease the
applicable Opportunity Expansion Space.
(f) The rent commencement date with respect to the applicable
Opportunity Expansion Space shall be the earlier to occur of
(x) substantial completion of the tenant improvements to be
installed in such space and (y) thirty days (30) days after
the date Landlord delivers to Tenant the initial space plan
for the applicable Opportunity Expansion Space (the date
determined pursuant to this clause (y), the "SCHEDULED RENT
COMMENCEMENT DATE"), provided, however, such Scheduled Rent
Commencement Date shall be subject to adjustment to the same
extent that the Commencement Date for the initial Premises is
subject to adjustment under Section 3 of the Work Letter.
(g) Tenant shall have no right to occupy any portion of the
Opportunity Expansion Space prior to the applicable Scheduled
Rent Commencement Date and in no event shall Tenant occupy
any Opportunity Expansion Space prior to (i) Substantial
Completion of the leasehold improvements being constructed in
the applicable Opportunity Expansion Space, (ii) issuance of
a certificate of completion or other document or permit
issued by the applicable governmental authority authorizing
Tenant's occupancy of the applicable Opportunity Expansion
Space and (iii) Landlord's receipt of an Acceptance of
Premises Memorandum covering the applicable Opportunity
Expansion Space executed by Tenant.
C. Within fifteen (15) days after Landlord's receipt of a Notice, Tenant
and Landlord will enter into a work letter substantially in the form
of Exhibit D attached to the Lease, provided that such form shall be
amended to (i) set forth provisions for preparation of constrution
drawings and approval dates thereof, (ii) amend the finish allowance
to be the amount of finish allowance, if any, considered in
calculating the Fair Market Rent and (iii) provide for such other
matters as are necessary to reflect the agreements of the parties with
respect to the finish out of the applicable Opportunity Expansion
Space. Pursuant to the work letter, Landlord shall construct or cause
to be constructed improvements in the applicable Opportunity Expansion
Space in substantial accordance with construction plans agreed to by
Landlord and Tenant.
D. Upon substantial completion of the applicable Opportunity Expansion
Space improvements, Landlord and Tenant shall execute an Acceptance of
Premises Memorandum in substantially the form of Exhibit E attached to
the Lease. If Tenant occupies any Opportunity Expansion Space without
executing the Acceptance of Premises Memorandum, Tenant shall be
deemed to have accepted such Opportunity Expansion Space for all
purposes.
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E. Within fifteen (15) days after Landlord's receipt of a Notice,
Landlord and Tenant will enter into an amendment to this Lease
reflecting (i) the addition of the applicable Opportunity Expansion
Space to the Premises, (ii) the increase in Basic Annual Rent and
Additional Rent payable under this Lease, (iii) the increase in
Tenant's Building Expense Percentage and (iv) such other amendments as
are necessary.
F. Notwithstanding any other provision or inference herein to the
contrary, Tenant's rights and Landlord's obligations under this Rider
shall expire and be of no further force or effect on the earliest of
(i) the expiration or earlier termination of the initial term of this
Lease, (ii) an assignment of this Lease by Tenant or (iii) the last
day of the fourth (4th) Lease Year.
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