Texas-Dallas-One Galleria Tower Lease - Dallas Galleria Ltd. and Amtech Corp.
ONE GALLERIA TOWER
LEASE AGREEMENT
between
DALLAS GALLERIA LIMITED ("LANDLORD")
and
AMTECH CORPORATION
doing business as
AMTC CORPORATION,
("TENANT")
Date: July 10, 1998
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TABLE OF CONTENTS
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Page
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I ........................................................................... -1-
1.1 LEASED PREMISES ............................................. -1-
II .......................................................................... -2-
2.1 TERM ........................................................ -2-
2.2 USE ......................................................... -2-
2.3 CONDITION OF LEASED PREMISES ................................ -3-
2.4 SURVIVAL .................................................... -3-
2.5 RELOCATION RIGHT ............................................ -3-
III ......................................................................... -4-
3.1 RENTAL PAYMENTS ............................................. -4-
3.2 BASE RENTAL ................................................. -5-
3.3 SECURITY DEPOSIT ............................................ -10-
IV .......................................................................... -10-
4.1 SERVICES TO BE FURNISHED BY LANDLORD ........................ -10-
4.2 KEYS AND LOCKS .............................................. -13-
4.3 WINDOW COVERINGS ............................................ -13-
4.4 GRAPHICS .................................................... -13-
4.5 REPAIRS BY LANDLORD ......................................... -13-
4.6 PEACEFUL ENJOYMENT .......................................... -14-
4.7 NO WARRANTIES ............................................... -14-
4.8 FORCE MAJEURE ............................................... -14-
V ........................................................................... -14-
5.1 PAYMENTS BY TENANT .......................................... -14-
5.2 DAMAGE TO PROJECT ........................................... -14-
5.3 CARE OF THE LEASED PREMISES ................................. -14-
5.4 ASSIGNMENT AND SUBLETTING ................................... -15-
5.5 ALTERATIONS, ADDITIONS, AND IMPROVEMENTS .................... -17-
5.6 LEGAL USE AND VIOLATIONS OF INSURANCE COVERAGE .............. -19-
5.7 LEGAL REQUIREMENTS; RULES OF THE PROJECT .................... -19-
5.8 RIGHTS RESERVED BY LANDLORD ................................. -20-
5.9 NUISANCE .................................................... -21-
5.10 SUBORDINATION ............................................... -21-
5.11 ESTOPPEL CERTIFICATE ........................................ -21-
5.12 TENANT'S REMEDIES ........................................... -21-
5.13 NAME OF BUILDING AND PROJECT ................................ -21-
VI .......................................................................... -22-
6.1 CONDEMNATION ................................................ -22-
6.2 DAMAGES FROM CERTAIN CAUSES ................................. -22-
6.3 [INTENTIONALLY OMITTED]...................................... -22-
6.4 HOLDING OVER ................................................ -23-
6.5 CASUALTY .................................................... -23-
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6.6 ATTORNEYS' FEES ............................................. -23-
6.7 ASSIGNMENTS BY LANDLORD ..................................... -24-
6.8 DEFAULT BY TENANT ........................................... -24-
6.9 INSOLVENCY OR BANKRUPTCY .................................... -26-
6.10 NON-WAIVER .................................................. -26-
6.11 CASUALTY INSURANCE .......................................... -27-
6.12 LIABILITY INSURANCE ......................................... -27-
6.13 HOLD HARMLESS ............................................... -27-
6.14 WAIVER OF SUBROGATION RIGHTS ................................ -27-
6.15 PARKING ..................................................... -27-
6.16 SEVERABILITY ................................................ -28-
6.17 NOTICES ..................................................... -29-
6.18 SUCCESSORS .................................................. -29-
6.19 ENTIRETY .................................................... -29-
6.20 FINANCIAL STATEMENTS ........................................ -30-
6.21 AMENDMENTS .................................................. -30-
6.22 VACATING THE LEASED PREMISES ................................ -30-
6.23 MISCELLANEOUS ............................................... -30-
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EXHIBITS
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A - Description of Land
B - Floor Plan of Leased Premises
C - Schedule of Building Standard Improvements
D - Project Rules & Regulations
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INDEX
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DEFINED TERMS
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TERM PAGE
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Access Equipment ............................................................ -13-
Actual Tenant ............................................................... -17-
Additional Electrical Equipment ............................................. -11-
Affiliate ................................................................... -15-
Annual Reconciliation Payment ............................................... -6-
Base Rental ................................................................. -5-
Base Rental Adjustment ...................................................... -5-
Base Rental Rate ............................................................ -5-
Basic Cost Component ........................................................ -5-
Basic Costs ................................................................. -6-
Building .................................................................... -1-
Building Operating Hours .................................................... -10-
Building Standard ........................................................... -3-
Building Standard Improvements .............................................. C-1
Building Standard Rated Electrical Design Load .............................. -11-
Building Standard Services .................................................. -10-
Business Days ............................................................... -31-
Commencement Date ........................................................... -2-
Common Areas ................................................................ -2-
Company ..................................................................... -15-
Complex ..................................................................... -1-
Control ..................................................................... -15-
Costs ....................................................................... -20-
Effective Date .............................................................. -1-
Environmental Laws .......................................................... -20-
Event of Default ............................................................ -24-
First Month's Rent .......................................................... -10-
Garage ...................................................................... -1-
General Common Areas ........................................................ -2-
Governmental Authority ...................................................... -19-
Hazardous Materials ......................................................... -20-
Holidays .................................................................... -10-
Interest Rate ............................................................... -5-
Janitorial Specifications ................................................... -11-
Land ........................................................................ -1-
Landlord .................................................................... -1-
Lease ....................................................................... -1-
Leased Premises ............................................................. -1-
Legal Requirements .......................................................... -19-
Must Take Unreserved Permits ................................................ -27-
Net Rentable Area ........................................................... -l-
New Premises ................................................................ -3-
Notice ...................................................................... -15-
Operating Expenses .......................................................... -6-
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Optional Unreserved Permits ................................................. -28-
Outside Contractor .......................................................... -18-
Parking Permits ............................................................. -28-
Parking Rental .............................................................. -28-
PCB ......................................................................... -20-
Permitted Affiliate ......................................................... -15-
Project ..................................................................... -1-
Project Rules ............................................................... -20-
Release ..................................................................... -20-
Relocation Effective Date ................................................... -4-
Relocation Notice ........................................................... -3-
Rent ........................................................................ -5-
Reportable Quantity ......................................................... -20-
Reserved Permits ............................................................ -28-
Security Deposit ............................................................ -10-
Service Areas ............................................................... -1-
Service Interruption ........................................................ -13-
Successor ................................................................... -21-
Tenant ...................................................................... -1-
Term ........................................................................ -2-
Unreserved Permits .......................................................... -28-
Usable Area ................................................................. -2-
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<PAGE>
LEASE AGREEMENT
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THE STATE OF TEXAS
COUNTY OF DALLAS
THIS LEASE AGREEMENT (this "Lease") is made and entered into as of July
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10th, 1998 (the "Effective Date") between DALLAS GALLERIA LIMITED, a Texas
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limited partnership ("Landlord"), and AMTECH CORPORATION, a Texas corporation,
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doing business as AMTC CORPORATION ("Tenant").
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W I T N E S S E T H:
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In consideration of the sum of Ten Dollars ($10.00) and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
each in consideration of the duties, covenants and obligations of the other
hereunder, Landlord and Tenant hereby agree as follows:
I.
1.1 LEASED PREMISES. Subject to and upon the terms, provisions and
conditions hereinafter set forth, Landlord does hereby lease to Tenant and
Tenant does hereby lease from Landlord those certain premises (the "Leased
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Premises") in the building commonly referred to as One Galleria Tower as of the
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date hereof (the "Building") located in Dallas, Texas on the land (the "Land"
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described on Exhibit A (the Building, the Land, the Garage [defined below], the
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structural walkway that connects the Building to the Garage, and all additional
improvements and additional facilities now or hereafter located on the Land that
serve the Building or the tenants of the Building hereinafter referred to as the
"Project"), such Leased Premises being more particularly described as follows:
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Approximately six thousand nine hundred ten (6,910) square feet of Net
Rentable Area (defined below) on Floor 15 of the Building as reflected
on the floor plans of such Leased Premises attached hereto as Exhibit B.
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"Garage" shall mean the parking garage located immediately south of
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and adjacent to the Building designated by Landlord for use by tenants and
visitors of the Building.
"Complex" shall mean the integrated mixed-use development as it may be
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modified from time to time commonly referred to as the "Galleria" located on the
land bounded by Dallas Parkway, Alpha Road, Noel Road and LBJ Freeway access
road and of which the Project is a part.
"Net Rentable Area" shall mean the area or areas of space
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within the Building determined as follows: (i) Net Rentable Area in the case of
a full floor leased to a single tenant is determined by measuring from the
inside surface of the outer pane of glass and extensions of the plane thereof in
non-glass areas to the inside surface of the opposite outer pane of glass and
extensions of the plane thereof in non-glass areas and shall include all areas
enclosed by such surfaces, excluding only Service Areas (defined below) and
General Common Areas (defined below), plus an allocation of the square footage
of the General Common Areas, and (ii) Net Rentable Area in the case of a floor
leased to more than one tenant (i.e., a multi-tenant floor) shall include the
total square footage of all floor areas enclosed by the inside surface of the
outer pane of glass and extensions of the plane thereof in non-glass areas and
by demising walls (measured from the midpoint of demising walls), excluding only
Service Areas and General Common Areas, plus an allocation of the square footage
of the Common Areas (defined below) and the General Common Areas. In determining
Net Rentable Area pursuant to (i) and (ii) above, no deduction from Net Rentable
Area shall be made for columns or projections necessary to the Building.
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"Service Areas" shall mean the total square footage within vertical
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penetrations such as (and measured from the midpoint of the walls enclosing)
Building stairs, elevator shafts, fire towers, flues, vents, stacks, vertical
pipe shafts, and vertical ducts; however, structural columns are not included in
Service Areas. Areas for the specific use of Tenant or other tenants of the
Project or installed at the request of Tenant or other tenants such as special
stairs or elevators are not included within the definition of Service Areas.
"General Common Areas" shall mean the total square footage within (and
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measured from the midpoint of the walls enclosing or from the inside surface of
the outer pane of glass enclosing, or extensions of the plane thereof in
non-glass areas) the Building's elevator machine rooms, main mechanical rooms,
loading dock facilities, telephone switch rooms, main electrical rooms, public
lobbies (including the main floor lobby of the Building, and the third floor
lobby of the Building), engineering, security, postal and cleaning areas, and
other areas not leased or held for lease within the Building but which are
necessary or desirable for the proper utilization of the Building or to provide
customary services to the Building. The allocation of the square footage of the
General Common Areas referred to in this Section 1.1 shall be equal to the total
square footage of the General Common Areas multiplied by a fraction, the
numerator of which is the Net Rentable Area of the Leased Premises (excluding
the allocation of the General Common Areas) and the denominator of which is the
total of all Net Rentable Area of space leased or held for lease as office space
or retail space contained in the Building (excluding the allocation of the
General Common Areas).
"Common Areas" shall mean the total square footage of all areas within
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(and measured from the midpoint of the walls enclosing or inside surface of the
outer pane of glass enclosing) public corridors, elevator foyers, rest rooms,
mechanical rooms, janitor closets, telephone, electrical and equipment rooms,
and other similar facilities for the use of all tenants on the floor on which
the Leased Premises are located. The allocation of the square footage of the
Common Areas shall be equal to the total square footage of the Common Areas on
said floor multiplied by a fraction, the numerator of which is the Net Rentable
Area of the portion of the Leased Premises (excluding the allocations of General
Common Areas and Common Areas) located on said floor and the denominator of
which is the total of all Net Rentable Area on said floor (excluding the
allocations of General Common Areas and Common Areas).
"Usable Area" shall mean (A) in the case of a full floor leased
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entirely by a single tenant, the Net Rentable Area of the floor area minus the
allocation of General Common Areas (it being agreed that Common Areas are
included in the calculations of Usable Area in the case of a full floor leased
entirely by a single tenant), and (B) in the case of a floor not leased entirely
by one tenant, the Net Rentable Area of the floor area minus the allocation of
General Common Areas and Common Areas which were included in Net Rentable Area
pursuant to this Section 1.1.
The Net Rentable Area in the Leased Premises has been calculated as of
the Effective Date on the basis of the foregoing definition and is hereby
stipulated for all purposes hereof to be 6,910 square feet as of the Effective
Date (and such amount shall not be adjusted as a result of minor variations
resulting from actual construction and completion of the Leased Premises for
occupancy so long as such work is done in accordance with the terms and
provisions of this Lease).
II.
2.1 TERM. Subject to and upon the terms and conditions set forth
herein, or in any exhibit or addendum attached hereto, the term of this Lease
(the "Term") shall commence on July 10, 1998 (the "Commencement Date") and shall
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expire at 6:00 P.M. on the day immediately preceding the same date of the
sixtieth (60th) calendar month after the Commencement Date.
2.2 USE. The Leased Premises are to be used and occupied by Tenant
solely for general office and administrative purposes consistent with the uses
of first class high-rise office buildings in metropolitan Dallas, Texas, and for
no other purpose. Notwithstanding anything to the contrary in this Lease, the
Leased Premises shall not be used for any purpose which would (i) adversely
affect the appearance of the Project, (ii) be visible from the exterior
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of, or the public areas of, the Project, (iii) adversely affect ventilation in
other areas of the Project (including without limitation, the creation of
offensive odors), (iv) create unreasonable elevator loads, (v) cause structural
loads to be exceeded, (vi) create unreasonable noise levels, (vii) otherwise
unreasonably interfere with Project operations or other tenants of the Project,
or (viii) violate Legal Requirements (defined in Section 5.7 hereof). In all
events, Tenant shall not engage in any activity which is not in keeping with the
first-class standards of the Project.
Without limiting the foregoing, Tenant agrees that Tenant will not use
any part of the Leased Premises for the following uses: health care services
(provided that management, administration and related services provided to a
health care provider shall not be prohibited hereby; however, in no event may
any portion of the Leased Premises be used for the treatment of patients),
telephone or telegraph agency, radio, television or other communication station,
employment agency, public restaurant or bar, retail, wholesale or discount shop
for sale of merchandise, retail service shop, school or classroom (except as
incidental to office uses but not as the principal use thereof), or governmental
or quasi-governmental bureau, department or agency.
2.3 CONDITION OF LEASED PREMISES.
(a) Tenant has made a complete examination and inspection of the Leased
Premises and accepts the same in its current condition, as-is, without recourse
to Landlord, and Landlord shall have no obligation to complete any improvements
to the Leased Premises. ADDITIONALLY, LANDLORD SHALL MAKE NO WARRANTIES, EXPRESS
OR IMPLIED, WITH RESPECT TO THE LEASEHOLD IMPROVEMENTS IN THE LEASED PREMISES.
ALL IMPLIED WARRANTIES WITH RESPECT THERETO, INCLUDING BUT NOT LIMITED TO THOSE
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY NEGATED
AND WAIVED. Tenant shall not be permitted to take occupancy of the Leased
Premises prior to the Commencement Date. It is expressly understood that nothing
in this Section 2.4 shall relieve Landlord from its obligations that are
expressly set forth elsewhere in this Lease.
(b) As used in this Lease, "Building Standard" shall mean such materials
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and improvements as are currently being used by Landlord in the base Building
and the Building Standard Improvements (defined in Exhibit C), or materials of
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comparable quality as may be substituted therefor by Landlord.
2.4 SURVIVAL. Any claim, cause of action, liability or obligation
arising during the Term and under the provisions hereof in favor of a party
hereto and against or obligating the other party hereto shall survive the
expiration or any earlier termination of this Lease.
2.5 RELOCATION RIGHT. If the Leased Premises are less than 10,000 square
feet of Net Rentable Area, then upon written notice to Tenant (the "Relocation
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Notice"), Landlord may substitute for the Leased Premises other premises in the
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Building (the "New Premises"), in which event the New Premises shall be deemed
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to be the Leased Premises for all purposes under this Lease, provided:
(a) The New Premises must:
(i) be of substantially comparable size to the Leased
Premises
(ii) constitute contiguous space on a floor;
(iii) be located in the same elevator bank as the Leased
Premises; and
(iv) be located with elevator exposure similar to the
Leased Premises.
(b) To the extent Tenant shall have incurred any expense in the
installation of any leasehold improvements in the Leased Premises, Landlord
and Tenant shall cooperate in good faith to cause
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such leasehold improvements to be reproduced for the New Premises as
closely as practicable as those installed in the Leased Premises and at
Landlord's expense so that Tenant shall not bear the expense in
connection therewith by reason of the exercise by Landlord of the
relocation right contained herein, and Landlord shall reimburse Tenant
for the reasonable actual costs incurred by Tenant (including the
reprinting of a three (3) months' supply of stationery and business cards
and the relocation of existing telephone lines and computer equipment) to
physically move Tenant's personal property from the Leased Premises to
the New Premises;
(c) The effective date of such substitution (the
"Relocation Effective Date") shall be the date specified in the
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Relocation Notice or, if Landlord is required to perform tenant finish
work pursuant to subsection (b) above, then the date such tenant finish
work is substantially completed (which date shall be accelerated a day
for each day the performance of the tenant finish work is delayed by the
actions of Tenant or its agents, employees, contractors or
representatives, either by changes to the plans for such work, or
otherwise, so that the Relocation Effective Date will be the date the
Relocation Effective Date would have occurred but for such delays).
Tenant shall move from the Leased Premises to the New
Premises and shall surrender possession of the Leased Premises as
provided in Section 5.3 by the Relocation Effective Date. If Tenant
occupies the Leased Premises after the Relocation Effective Date, then
Tenant's occupancy of the Leased Premises shall be a tenancy at will (and
without limiting all other rights and remedies available to Landlord,
including without limitation, instituting a forcible detainer suit),
Tenant shall pay the Base Rental and Base Rental Adjustment for the
Leased Premises as provided in Section 6.4 and all other Rent (defined in
Section 3.1) due therefor until such occupancy of the Leased Premises
ends (which amounts shall be in addition to, and not in lieu of, the Rent
due for the New Premises); and
(d) All of the terms, covenants and conditions of this
Lease, including without limitation, the Base Rental and other Rent
payable under this Lease, shall remain the same for the New Premises as
are stated herein to be applicable for the Leased Premises except the
Lease shall be amended (i) to identify the space comprising the New
Premises after such relocation as the Leased Premises, (ii) to state the
Net Rentable Area of the New Premises, and (iii) to adjust the Base
Rental as necessary due to any differences in the Net Rentable Area of
the New Premises.
III.
3.1 RENTAL PAYMENTS.
(a) Commencing on the Commencement Date and continuing
thereafter throughout the Term, Tenant hereby agrees to pay Base Rental (defined
in Section 3.2) as adjusted by the Base Rental Adjustment (defined in Section
3.2) in accordance with this Section 3.1 and Section 3.2. Base Rental as
adjusted by the Base Rental Adjustment (excluding the Annual Reconciliation
Payment [defined in Section 3.2 below]) shall be due and payable in twelve (12)
equal monthly installments on the first day of each calendar month during the
Term (subject to the provisions of subsection (b) below), and Tenant hereby
agrees to so pay such rent monthly in advance and without demand to Dallas
Galleria Limited, P. 0. Box 910420, Dallas, Texas 75391 (or such other address
as may be designated in writing by Landlord from time to time). Notwithstanding
the foregoing, Base Rental for the first (1st) month of the Term shall be paid
to Landlord on the Effective Date as provided in Section 3.3 below. Parking
Rental shall be due and payable in accordance with this Section 3.1 and Section
6.15.
(b) If the Commencement Date is other than the first day of a
calendar month or if this Lease expires or terminates on other than the last day
of a calendar month, then the installments of Base Rental and Parking Rental for
such month or months shall be prorated and the installment or installments so
prorated shall be paid in advance. Said installments for such prorated month or
months shall be calculated by multiplying the equal monthly
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installment by a fraction, the numerator of which shall be the number of days of
the Term occurring during said commencement or expiration month, as the case may
be, and the denominator of which shall be the number of days in said month.
Landlord and Tenant hereby agree that the provisions of this Section 3.1(b)
shall survive the expiration or termination of this Lease.
(c) Tenant agrees to pay all rent and other sums of money as
shall become due from and payable by Tenant to Landlord under this Lease
(collectively, the "Rent") at the times and in the manner provided in this
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Lease, without abatement, notice, demand, set-off or counterclaim. All Rent in
addition to Base Rental shall constitute additional rental under this Lease and
Landlord shall be entitled to exercise the same rights and remedies provided for
in this Lease for the nonpayment of any Rent. All Rent owed by Tenant to
Landlord under this Lease shall bear interest from the date due until payment is
received at the rate (the "Interest Rate") equal to the lesser of(i) a per annum
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rate equal to the "prime rate" or "base rate" announced by Chase Manhattan Bank
or its successor, from time to time (or if the "prime rate" or "base rate" is
discontinued, the rate announced by such bank as that being charged to its most
creditworthy commercial borrowers), plus five percent (5%), or (ii) the maximum
contract interest rate per annum allowed by law.
(d) If Tenant fails to pay any regular monthly installment of
Rent by the fifth (5th) day of the month in which the installment is due, or any
other sum or money owed to Landlord within five (5) days after such sums are due
and owing to Landlord, Tenant shall pay a late charge equal to the greater of(i)
$250.00, or (ii) an amount equal to five percent (5%) of the amount due, for
each and every thirty (30) day period that said amount remains unpaid (but in no
event shall the amount of such late charge exceed an amount based upon the
highest legally permissible contract rate chargeable at any time by Landlord
under the circumstances) to compensate Landlord for the administrative expenses
incurred. Should Tenant make a partial payment of past due amounts, the amount
of such partial payment shall be applied first to reduce all accrued and unpaid
late charges, in inverse order of maturity, and then to reduce all other past
due amounts, in inverse order of their maturity.
3.2 BASE RENTAL.
(a) Tenant hereby agrees to pay as the base annual rental
("Base Rental") for the lease and use of the Leased Premises, an annual amount
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equal to the product of Twenty-six and no/l00 Dollars ($26.00) ("Base Rental
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Rate") multiplied by the number of square feet of Net Rentable Area comprising
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the Leased Premises, subject to increase pursuant to subsection (b) below.
(b) The Base Rental payable under subsection (a) shall be
adjusted from time to time in accordance with the following provisions (any such
adjustment hereinafter the "Base Rental Adjustment"):
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(i) Base Rental includes a component attributable to
Basic Costs (hereinafter defined) equal to an estimate of the Base Amount
(defined below). As used herein, "Base Amount" shall mean the Basic Costs
computed in accordance with this Section 3.2 for the calendar year 1998
(the "Base Year") on a per square foot of Net Rentable Area basis. Prior
to January 1 of each calendar year during the Term after the calendar
year in which the Commencement Date occurs, or as soon thereafter as
reasonably practical, Landlord shall provide an estimate of Basic Costs
for the forthcoming calendar year. Tenant shall pay Base Rental for such
forthcoming calendar year based upon the Base Rental set forth in
subsection (a) above for such time period adjusted upward by an amount
equal to the difference between the Base Amount and the coming calendar
year's estimated Basic Costs (on a per square foot of Net Rentable Area
basis).
(ii) By June 1 of each calendar year during Tenant's
occupancy, or as soon thereafter as reasonably practical, Landlord shall
furnish to Tenant a statement of Basic Costs for the previous calendar
year or partial calendar year, as applicable, occurring during the Term.
If actual Basic Costs for such calendar year or partial calendar year, as
applicable, are greater than Landlord's estimate thereof pursuant to
clause (i) above, Tenant shall be obligated to pay to Landlord within
thirty (30) days of the delivery of such statement
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a lump sum payment (which payment shall be deemed a payment of Rent
hereunder for all purposes) equal to the product of (x) the Net Rentable
Area in the Leased Premises, multiplied by (y) the amount by which actual
Basic Costs per square foot of Net Rentable Area in the Building exceed
Landlord's estimate thereof for such calendar year or partial calendar
year, as applicable. If actual Basic Costs for such calendar year or
partial calendar year, as applicable, are less than Landlord's estimate
thereof pursuant to clause (i) above, Landlord shall promptly after
delivery of such statement make a lump sum payment to Tenant (or at
Landlord's option, Landlord may credit such lump sum amount against
remaining Base Rental installments for the current calendar year) equal
to the product of (A) the Net Rentable Area in the Leased Premises,
multiplied by (B) the amount by which estimated Basic Costs per square
foot of Net Rentable Area in the Building exceed the actual amount
thereof (to the extent such excess was actually paid by Tenant, but in no
event shall such payment or credit be in an amount which would result in
Tenant paying Base Rental for the applicable calendar year in an amount
less than the annual Base Rental specified in subsection (a) above). The
effect of this reconciliation payment (the "Annual Reconciliation
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Payment") is that Tenant will pay during the Term its proportionate share
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(as defined in clause (iii) below) of Basic Costs increases over the
Basic Costs for the Base Year computed in accordance with Section 3.2,
and no more. Notwithstanding the foregoing, in no event shall Tenant or
Landlord be obligated to pay an Annual Reconciliation Payment with
respect to calendar year 1998. The provisions of this subsection (ii)
shall survive the expiration or earlier termination of this Lease.
(iii) All increases in Basic Costs shall be paid by Tenant
in the proportion that the Net Rentable Area of the Leased Premises bears
to ninety-five percent (95%) of the total Net Rentable Area of the office
space and retail space leased or held for lease in the Building, or to
the total Net Rentable Area of office space and retail space leased in
the Building (if such total leased area is greater than ninety-five
percent (95%) of the total Net Rentable Area of office space and retail
space leased or held for lease in the Building).
(iv) Nothing contained in this subsection (b) shall be
construed at any time so as to reduce the annual Base Rental payable
hereunder below the amount set forth in subsection (a) above.
(c) "Basic Costs," as that term is used herein, shall consist
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of all Operating Expenses (defined below) of the Project as reasonably allocated
by Landlord, computed on an accrual basis and determined in accordance with
generally accepted accounting principles consistently applied. "Operating
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Expenses," as that term is used herein, shall mean all expenses and costs (but
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excluding charges separately paid by other tenants of the Project or other third
parties other than through the payment of its share of operating expenses) of
every kind and nature that Landlord shall pay or become obligated to pay because
of or in connection with the ownership, maintenance, repair, and operation of
the Project, including but not limited to, the following:
(i) Wages, salaries, fees and all related expenses
(including, without limitation, taxes, insurance, burdens and benefits
and the costs incurred in providing same) of all personnel engaged in the
operation, maintenance, repair and access control of the Project and
personnel who provide traffic control relating to ingress and egress to
and from the Garage and surrounding public streets.
(ii) Cost of all supplies, tools, equipment and
materials, whether purchased or leased, used in the operation,
maintenance, repair and/or access control of the Project.
(iii) Cost of utilities for the Project, including but not
limited to, water, steam, sewer, waste disposal, gas and electricity, and
power for heating, lighting, air conditioning and ventilating the Project
(including all Common Areas, General Common Areas and Service Areas),
including charges to the Project for such services for the Project
provided from a central plant which also serves other parts of the
Complex.
(iv) Management fees paid to the property manager for the
management of the Project (provided, however, in no event shall Landlord
include in Operating Expenses in any one calendar year a net management
fee in excess of three percent (3%) of the gross revenues of the Project
for such calendar year;
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and, provided further, however, in lieu thereof, Landlord may charge
Tenant separately, and not as a part of Basic Costs, for a management
fee contribution which shall not in any one (1) calendar year exceed
three percent (3%) of the Base Rental and the Base Rental Adjustment
payable by Tenant for such calendar year) and the cost of all
maintenance and service agreements for the Project and the equipment
therein, including but not limited to, access control service, window
cleaning, traffic control, janitorial service, landscape maintenance,
and elevator maintenance.
(v) Legal and accounting costs for the Project, including
a reasonable allocation of off-site costs, together with the costs of
annual audits of the Project operating costs by certified public
accountants.
(vi) Cost of all insurance relating to the Project,
including but not limited to, fire and extended coverage insurance,
rental loss or abatement insurance, and casualty and liability
insurance applicable to the Project and Landlord's personal property
used in connection therewith, plus the cost of all deductible payments
made by Landlord in connection therewith.
(vii) Cost of repairs, replacements and general maintenance
(excluding repairs, replacements and general maintenance paid for with
proceeds of insurance or condemnation or by third parties).
(viii) Any and all common area maintenance costs related to
public areas, including without limitation, sidewalks and landscaping
for the Project.
(ix) All taxes, assessments and governmental charges,
whether or not directly paid by Landlord, whether federal, state,
county or municipal and whether they be by taxing districts or any
Governmental Authority (defined in Section 5.7 hereof) presently taxing
the Project or by others subsequently created, attributable to the
Project or its operation and an allocation to the Project of the taxes,
assessments and governmental charges for the service roads which
service the Complex, but excluding, however, taxes and assessments
attributable to the personal property of tenants, federal and state
taxes on income, death taxes, franchise taxes, and any taxes imposed or
measured on or by the income of Landlord from the operation of the
Project or imposed in connection with any change of ownership of the
Project; provided, however, if the taxing authorities do not separately
assess the Project, Landlord may make a reasonable allocation of the
taxes, assessments or charges to give effect to this sentence, and
provided further, however, that if at any time during the Term, the
present method of taxation or assessment shall be so changed that the
whole or any part of the taxes, assessments, levies, impositions or
charges now levied, assessed or imposed on real estate and the
improvements thereon shall be discontinued and as a substitute
therefor, or in lieu of or in addition thereto, taxes, assessments,
levies, impositions or charges shall be levied, assessed or imposed.
wholly or partially, as a capital levy or otherwise, on the rents
received from the Project or the rents reserved herein or any part
thereof, then such substitute or additional taxes, assessments, levies,
impositions or charges, to the extent so levied, assessed or imposed
with respect to the Project, shall be deemed to be included within
Operating Expenses. Consultation, accounting and legal fees and other
fees and costs resulting from any challenge of tax assessments as
reasonably allocated by Landlord also shall be included in Operating
Expenses. It is agreed that Tenant will be responsible for ad valorem
taxes on its personal property and on the value of the leasehold
improvements in the Leased Premises to the extent that the same exceed
Building Standard Improvements (defined in Exhibit C) (and if the
------- -
taxing authorities do not separately assess Tenant's leasehold
improvements, Landlord may make a reasonable allocation of the ad
valorem taxes allocated to the Project to give effect to this
sentence). All taxes, assessments and governmental charges shall be
included in Operating Expenses in the calendar year in which such
taxes, assessments or governmental charges are levied, assessed or
imposed without regard to when such taxes, assessments or governmental
charges are payable; provided, however, in the case of special taxes
and assessments which may be payable in installments, only the amount
of each installment accruing during a calendar year shall be included
in the Operating Expenses for such year.
7
<PAGE>
(x) Amortization of the cost, together with reasonable
financing charges, of furnishing and installing capital investment
items which (a) are primarily for the purpose of (i) reducing Operating
Expenses or avoiding increases in Operating Expenses in Landlord's good
faith estimate, or (ii) promoting safety, or (b) may be required by
Legal Requirements. All such costs shall be amortized over the useful
life of the capital investment items with the useful life and
amortization schedule being determined in accordance with generally
accepted accounting principles (in no event to extend beyond the
remaining useful life of the Project).
(xi) Costs of licenses, permits and inspection fees related
to the Project.
(xii) Any allocation of expenditures for service, repair,
maintenance or operation of the Complex attributable to the Project,
determined in accordance with generally accepted accounting principles.
(xiii) Cost of an office in the Building or allocation of a
central office in the Complex (if applicable) maintained for management
of the Project.
Anything in the foregoing provisions hereof to the contrary
notwithstanding, Operating Expenses shall not include the following:
(A) Leasing commissions, attorneys' fees, costs,
disbursements and other expenses incurred in connection with
negotiations for leases with tenants, other occupants, or prospective
tenants or other occupants of the Project, or similar costs incurred in
connection with disputes with tenants, other occupants, or prospective
tenants or other occupants of the Project.
(B) Non-cash items, such as deductions for depreciation or
obsolescence of the Project and the Project equipment, or interest on
capital invested (except as provided in clause (x) above).
(C) Payments of principal and interest or other finance
charges made on any debt (except as provided in clause (x) above), and
rental payments made under any ground or underlying lease or leases,
except to the extent that a portion of such payments is expressly for
ad valorem/real estate taxes or insurance premiums on the Project.
(D) Costs incurred by Landlord in the sale, financing,
refinancing, mortgaging, selling or change of ownership of the Project,
including brokerage commissions, attorneys' and accountants' fees,
closing costs, title insurance premiums, transfer taxes and interest
charges.
(E) Costs which are to be capitalized in accordance with
generally accepted accounting principles not included under Section
3.2(c)(i) through (xiii).
(F) Costs and expenses attributable to the initial
construction of the Project.
(G) Any penalty charges incurred by Landlord due to
Landlord's late payment of taxes, utility bills or other amounts
included in Operating Expenses except to the extent Landlord was
contesting the payment ofany such item in good faith.
(H) Allowances and other costs and expenses incurred in
fixturing, furnishing, renovating or otherwise improving, decorating or
redecorating space for tenants or prospective tenants of the Building,
or vacant leasable space in the Building (including permit, license and
inspection costs but excluding normal maintenance, repair and
replacement costs).
(I) Cost of any political or charitable donations or
contributions.
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<PAGE>
(J) Costs of repairs, restoration, replacements or other
work occasioned by (1) fire, windstorm or other casualty of an insurable nature
(whether such destruction be total or partial) and paid by insurance then in
effect obtained by Landlord, (2) the exercise by any governmental authority of
the right of eminent domain, whether such taking be partial or total, and (3)
the gross negligence or willful misconduct of Landlord, or its agents and
employees.
(K) The cost of all items, goods and services for which
Tenant, any other tenant or occupant of the Project or other third
party (including insurers) reimburses Landlord or for which Landlord is
entitled to reimbursement to the extent of such entitlement (other than
through the payment of a tenant's share of Operating Expenses of the
Project).
(L) All amounts which would otherwise be included in
Operating Expenses which are paid to any affiliate of Landlord to the
extent the costs of such services exceed the amount which would have
been paid in the absence of such relationship for similar services of
comparable level, quality and frequency rendered by persons of similar
skill, competence and experience (but Operating Expenses shall include
any such amounts specifically provided for or permitted in this Lease
[including without limitation, the sums permitted pursuant to clauses
(i) and (iv) above] for which the provisions of this Lease shall
control).
(M) Costs incurred by Landlord to encapsulate or remove
any Hazardous Materials (defined in Section 5.7(b)) to the extent
applicable laws in effect prior to the Commencement Date require
Landlord to take affirmative action to encapsulate or remove such
Hazardous Substance which was located in the Project prior to the
Commencement Date and such action was not taken by Landlord prior to
the Commencement Date.
(N) Landlord's general corporate overhead relating solely
to the internal organization and function of Landlord as a business
entity (i.e., trustee's fees and partnership organizational expenses)
(as opposed to the maintenance, ownership and operation of the
Project).
(O) Costs of correcting initial or latent defects (but not
the costs of normal wear and tear) in the design and construction of
the Project.
(P) Any penalties paid by Landlord due to the violation by
Landlord of the terms of any lease pertaining to the Project.
(d) If an Annual Reconciliation Payment is due by Tenant
to Landlord with respect to the immediately preceding calendar year pursuant to
Section 3.2(b)(ii) above, Tenant, at its sole cost and expense, shall have the
right (to be exercised by giving notice to Landlord within sixty (60) days after
receipt of the statement of Basic Costs for such previous calendar year) to
audit and/or inspect Landlord's books and records pertaining only to items
affecting Basic Costs for such preceding calendar year; provided that such audit
and/or inspection must be commenced and concluded by December 31 of the year
following the year to which any such disputed item relates; and provided further
that such audit and/or inspection does not unreasonably interfere with the
conduct of Landlord's business. Notwithstanding the foregoing, if Tenant elects
to audit and/or inspect Landlord's books and records to the extent permitted
above, Landlord, in its sole discretion, may elect to furnish Tenant a copy of
an audit prepared by a certified public accountant in lieu of Tenant performing
the aforementioned audit and/or review.
(e) Notwithstanding any other provision herein to the
contrary, it is agreed that in the event the Net Rentable Area of office space
and retail space leased or held for lease in the Building is not fully occupied
or provided with Building Standard Services (defined in Section 4.1) during any
partial year or any full calendar year, Basic Costs shall be computed for such
year as though the Net Rentable Area of office space and retail space leased or
held for lease in the Building had been fully occupied and provided with
Building Standard Services.
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<PAGE>
3.3 SECURITY DEPOSIT. Tenant hereby agrees to pay to Landlord
on the Effective Date, in cash or by certified check, (a) a sum equal to the
Base Rental payment for the first (1st) calendar month of the Term equal in
amount to $14,971.67 (the "First Month's Rent") plus (b) a sum equal to $-0-
------------------
(the sums in (a) and (b) collectively, the "Security Deposit"). Tenant hereby
----------------
grants to Landlord a security interest in the Security Deposit. Upon the
occurrence of an Event of Default, Landlord, from time to time, without
prejudice to any other remedy, may use the Security Deposit to the extent
necessary to make good any arrears of Base Rental, Base Rental Adjustment,
Parking Rental or to pay any other sums owed to Landlord, including any sums
described in Section 6.8 or to pay the cost of any damage, injury, expense, or
liability caused by any default by Tenant under this Lease. Landlord shall have,
and Landlord expressly retains and preserves, all rights of setoff and
recoupment and any and all similar remedies available under applicable laws or
in equity. To the extent an Event of Default has not occurred under this Lease,
that portion of the Security Deposit equal to the First Month's Rent (to the
extent such portion of the Security Deposit has not otherwise been applied by
Landlord pursuant to this Section 3.3) shall be applied by Landlord to Base
Rental due by Tenant on the Commencement Date (and if the Commencement Date does
not occur on the first (1st) day of a calendar month and therefore, the First
Month's Rent exceeds the Base Rental owed by Tenant on the Commencement Date,
such excess portion of the First Month's Rent shall be applied to Base Rental
owed by Tenant on the first (1st) day of the calendar month immediately after
the Commencement Date). If an Event of Default has not occurred, any remaining
balance of the Security Deposit held by Landlord pursuant to this Section 3.3
shall be returned by Landlord to Tenant within a reasonable period of time after
the termination or expiration of this Lease. The Security Deposit shall not be
considered an advance payment of rental or a measure of Landlord's damages in
case of a default by Tenant. Tenant shall not be entitled to receive and shall
not receive any interest on the Security Deposit, and Landlord may commingle the
same with other monies of Landlord. In the event Landlord applies the Security
Deposit or any portion thereof to the payment of any sum described above and
this Lease is not terminated, Tenant immediately shall deposit with Landlord an
amount of money equal to the amount so applied and such amount shall be deemed
to be part of the Security Deposit.
IV.
4.1 SERVICES TO BE FURNISHED BY LANDLORD.
(a) Landlord shall furnish Tenant during Tenant's occupancy
of the Leased Premises the following Building standard services (the "Building
--------
Standard Services") so long as an Event of Default has not occurred:
-----------------
(i) Subject to Legal Requirements, common use rest
rooms with hot and cold domestic water at locations provided for
general use of other tenants in the Building.
(ii) Central heat and air conditioning in season,
subject to curtailment as required by Legal Requirements. Landlord
shall furnish such service to Tenant between the hours (the "Building
--------
Operating Hours") of 7:00 A.M. and 6:00 P.M., Monday through Friday,
---------------
and 8:00 A.M. and 1:00 P.M., Saturday, excluding the following
holidays (or the day observed in lieu thereof by national banks): New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day and Christmas Day (collectively, the "Holidays").
--------
Upon request of Tenant made in accordance with the
Project Rules (defined in Section 5.7), Landlord will furnish air
conditioning, ventilating and heating at times other than Building
Operating Hours, in which event Tenant shall pay Landlord the then
current charges incurred by Landlord to provide such services. As of
the Effective Date, the after hour HVAC charge is $35.00 per hour per
floor: however such charge is subject to increase by Landlord based
upon actual increases in costs that Landlord may incur.
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<PAGE>
(iii) Routine maintenance and electric lighting service for all
Common Areas on floors on which the Leased Premises are located not leased
entirely by Tenant, General Common Areas and Service Areas of the Building.
(iv) Janitorial service on a five (5) day per week basis
(excluding the Holidays) in accordance with the janitorial specifications
attached hereto as Exhibit E (the "Janitorial Specifications"); provided,
--------- -------------------------
however, if Tenant's leasehold improvements (including floor coverings) are
other than Building Standard Improvements, include a lunchroom, coffee bar or
other similar facility for its employees or otherwise require special or
additional cleaning in excess of the Building Standard Services, Tenant shall
pay the actual additional cleaning cost, if any, incurred by Landlord as the
result thereof plus a charge equal to ten percent (10%) of such additional
costs for administrative cost recovery. Landlord specifically reserves the right
to modify the Janitorial Specifications as in its judgment shall from time to
time be required for the safety, protection and cleanliness of the Project, the
operation thereof, the preservation of good order therein or the protection and
comfort of other tenants of the Project and their employees, agents and guests:
however, the Janitorial Specifications as modified will be of substantially the
same quality level as those described in Exhibit E and Landlord agrees to
---------
furnish Tenant with notice of any such modifications.
(v) Sufficient electrical capacity transformed to a panel box
located in the core of each floor of the Leased Premises for (A) machines of low
electrical consumption at standard voltage (120 volts, single-phase) to the
extent that the total demand load at 100% capacity of said machines of low
electrical consumption does not exceed two (2) watts per square foot of Usable
Area, and (B) lighting and equipment at high voltage (277 volts, single-phase)
to the extent that the total demand load at 100% capacity of said lighting and
equipment does not exceed two (2) watts per square foot of Usable Area (each
such rated electrical design load to be hereinafter referred to as the "Building
--------
Standard Rated Electrical Design Load").
-------------------------------------
Should Tenant's non-linear electrical load (created by equipment
such as personal computers, television sets, laser printers, copiers or other
electronic devices connected to the power system) result in harmonic distortion
conditions which cause any adverse effects in the Project, including but not
limited to, deration of any transformer, distribution stepdown transformer
failures, overheating or melting of neutral conductors, or malfunctioning of
various electronic components. Tenant acknowledges that Tenant, at Tenant's sole
cost, shall be obligated to eliminate such harmonic distortion conditions and to
repair any damage which results from such harmonic distortion within thirty (30)
days of Landlord's request. If Tenant fails to eliminate such harmonic
distortion and repair such damage caused thereby within such thirty (30) day
period, Landlord, at its option, may make such corrections deemed necessary by
Landlord to eliminate such harmonic distortion and make such repairs, and Tenant
shall pay to Landlord on demand Landlord's cost thereof plus a charge equal to
fifteen percent (15%) of such costs for administrative cost recovery.
Tenant shall cause Tenant's electrical system serving any
equipment producing non-linear electrical loads to be designed to accommodate
such non-linear electrical loads, including but not limited to, over-sizing
neutral conductors, derating transformers and/or providing power line filters.
Any Tenant plans shall include a calculation of Tenant's fully connected design
load with and without demand factors and shall indicate the number of watts of
un-metered and sub-metered loads.
If Tenant's electrical equipment and lighting require electrical
circuits, transformers or other additional equipment in excess of Tenant's pro
rata share of the Building's electrical or HVAC systems (which additional
equipment shall be hereinafter referred to as the "Additional Electrical
---------------------
Equipment"), Tenant may (at Tenant's cost, including the cost to design,
---------
install, maintain and replace the Additional Electrical Equipment [including the
meters]) install the same, provided such installation is compatible with
existing Building systems, will not compromise Landlord's ability to provide
services to Tenant or other tenants of the Building and will not be burdensome
to the Project or to Landlord, in Landlord's opinion, and Tenant shall pay all
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operating costs related to that requirement (including, without
limitation, the cost of electricity, water or other services
consumed through, or in connection with, the Additional Electrical
Equipment).
The method of design and installation of any Additional
Electrical Equipment (including any related meter) required by Tenant
shall be subject to the prior written approval of Landlord and shall
be performed by Landlord at Tenant's sole cost (including a charge
equal to ten percent (10%) of such cost for the review and
installation of such Additional Electrical Equipment for
administrative cost recovery).
Tenant shall pay to Landlord the cost of electricity
consumed in excess of the Building Standard Rated Electrical Design
Load as determined by meter, or if not metered, as otherwise
reasonably estimated by Landlord, plus any actual accounting expenses
incurred by Landlord in connection with the metering thereof. Landlord
may cause the entire Leased Premises to be separately metered (at
Tenant's expense, including, without limitation, the cost of
installing, maintaining, repairing and replacing such meters to the
extent necessary), in which event Tenant shall pay the actual cost of
electricity consumed by Tenant.
(vi) All Building Standard fluorescent bulb replacement
in all areas of the Project and all incandescent bulb replacement in
the Common Areas on floors on which the Leased Premises are located
not leased entirely by Tenant, General Common Areas and Service Areas.
(vii) Perimeter access control for the Project during
hours other than Building Operating Hours; PROVIDED, HOWEVER, LANDLORD
SHALL HAVE NO RESPONSIBILITY TO PREVENT, AND SHALL NOT BE LIABLE TO
TENANT, ITS AGENTS, EMPLOYEES, CONTRACTORS, VISITORS OR INVITEES FOR,
LOSSES DUE TO THEFT OR BURGLARY, OR FOR DAMAGES OR INJURY TO PERSONS
OR PROPERTY DONE BY PERSONS GAINING ACCESS TO THE LEASED PREMISES OR
THE PROJECT, EXCEPT TO THE EXTENT CAUSED BY LANDLORD'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, AND TENANT HEREBY RELEASES LANDLORD
FROM ALL LIABILITY FOR SUCH LOSSES, DAMAGES OR INJURY, EVEN IF CAUSED
BY LANDLORD'S NEGLIGENCE. Tenant shall cooperate fully in Landlord's
efforts to maintain access control in the Building and shall follow
all regulations promulgated by Landlord with respect thereto.
(viii) Non-exclusive multiple cab passenger elevator
service to the Leased Premises during Building Operating Hours, with
passenger elevator service to the Leased Premises by at least one (1)
cab twenty-four (24) hours per day, and non-exclusive freight elevator
service to the Leased Premises during Building Operating Hours with
such freight elevator service available at other times upon reasonable
prior notice (however, all of the foregoing shall be subject to
temporary cessation for ordinary repair and maintenance and during
times when life safety systems override normal Building operating
systems).
In the event Tenant desires Landlord to provide any of the
aforementioned services (including heating and air-conditioning) in amounts in
excess of Building Standard Services or in addition to the Building Operating
Hours, and provided such services are compatible with existing Building systems,
will not compromise Landlord's ability to provide services to Tenant or other
tenants of the Building and are not burdensome to the Project or to Landlord, in
Landlord's opinion, and so long as an Event of Default is not in existence,
Landlord may elect (but is not required) to provide such excess or additional
services and Tenant shall pay Landlord as additional rent hereunder the cost of
providing such excess or additional services, including without limitation,
design, metering, installation and operating costs plus a charge equal to ten
percent (10%) of such costs for administrative cost recovery.
(b) To the extent the services described in Section 4.1(a)
require electricity, water, gas, steam or other utility services supplied by
public utilities, Landlord's covenants hereunder shall impose on Landlord only
the obligation to use its good faith, reasonable efforts to cause the applicable
public utilities to furnish the same. Landlord shall not be responsible for, and
shall have no liability with respect to, the quality or condition of any
services provided by such public utilities.
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<PAGE>
(c) Failure by Landlord to any extent to furnish any of the aforementioned
services to Tenant, the Leased Premises or the Project, or any cessation
(including any partial curtailment) thereof, shall not render Landlord liable in
any respect for damages to person, property or otherwise, nor to be construed as
an eviction of Tenant, nor work an abatement of Rent, nor relieve Tenant from
fulfillment of any covenant or agreement hereof. Should any of the equipment or
machinery utilized in supplying the services listed herein break down, or for
any cause cease to function properly, such failure shall not work as an
abatement of Rent, nor be construed as an eviction of Tenant, nor relieve Tenant
from fulfilling any covenant or agreement contained herein, nor render Landlord
liable for damages; provided, however, that should any of such services be
interrupted or terminated as a result of Landlord's negligence but not as the
result of (i) curtailment in services imposed by any Governmental Authority,
(ii) failure of the public utilities to furnish necessary services, or (iii)
Tenant's negligence, gross negligence or willful misconduct
(a "Service Interruption") and if, as a result of such Service Interruption, the
--------------------
Leased Premises (or any part thereof) is untenantable, and such Service
Interruption continues for a period of five (5) or more consecutive Business
Days after Tenant delivered written notice to Landlord of such Service
Interruption, then all Rent including, without limitation, Base Rental and Base
Rental Adjustment shall abate as to those portions of the Leased Premises
rendered untenantable from and including the sixth (6th) Business Day after
Landlord's receipt of such written notice from Tenant and shall continue until
such space is again tenantable. The foregoing rental abatement shall constitute
Tenant's sole and exclusive remedy involving or with respect to a Service
Interruption. Notwithstanding the foregoing, if a Service Interruption occurs as
a result of or in connection with a fire or other casualty or a taking or
condemnation for a public purpose (or a conveyance in lieu thereof), the
foregoing rental abatement shall not be available to Tenant, and Landlord's and
Tenant's rights and obligations with respect thereto are governed by the
provisions of Section 6.1 in the case of a taking or condemnation (or a
conveyance in lieu thereof) or Section 6.5 in the case of a fire or other
casualty. Should any of the equipment or machinery utilized in supplying the
services listed herein break down, or for any cause cease to function properly,
Landlord shall use reasonable diligence to repair same promptly.
4.2 KEYS AND LOCKS. Landlord shall furnish Tenant with two (2) keys and/or
access cards (collectively, the "Access Equipment") for each corridor door
----------------
entering the Leased Premises (and additional Access Equipment on an order signed
by Tenant, at a charge by Landlord equal to the cost of such Access Equipment
plus an additional charge of ten percent (10%) of such cost for administrative
cost recovery). All such Access Equipment shall remain the property of Landlord.
No additional locks shall be allowed on any door of the Leased Premises and
Tenant shall not make or permit to be made any duplicate Access Equipment,
except those furnished by Landlord. Upon termination of this Lease, Tenant shall
surrender to Landlord all Access Equipment to the Leased Premises and give to
Landlord the keys and/or combination for all locks for safes, safe cabinets and
vault doors, if any, in the Leased Premises.
4.3 WINDOW COVERINGS. Landlord shall provide and install Building Standard
interior window coverings on all exterior windows in the Building as Building
Standard Improvements. Tenant agrees to use the Building Standard window
coverings on all exterior windows of the Building. Tenant shall not place or
maintain any window coverings, blinds or drapes on any exterior window (other
than those supplied by Landlord) without Landlord's prior written approval which
Landlord shall have the right to grant or withhold in its absolute and sole
discretion. Tenant acknowledges that breach of this covenant will directly and
adversely affect the exterior appearance of the Project and the operation of the
heating, ventilating and air conditioning systems.
4.4 GRAPHICS. Landlord shall provide and install Tenant's name and suite
numerals on the main entrance door to the Leased Premises. All such letters and
numerals shall be in the Building Standard graphics. All graphics of Tenant
visible in or from public corridors, elevator cabs or other public areas shall
be Building Standard graphics and subject to Landlord's prior written approval
in its sole and absolute discretion. Landlord also will be responsible for the
initial installation of Tenant's name and suite number in the Building directory
located in the main lobbies on Floor 1 and Floor 3 of the Building. Landlord
shall not be liable for any inconvenience or damage occurring as the result of
any error or omission in any directory or graphics
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<PAGE>
4.5 REPAIRS BY LANDLORD. Landlord shall be required only to make such
improvements, repairs or replacements as may be required for normal maintenance
of the Leased Premises, and such additional maintenance as may be necessary
because of damage by persons other than Tenant, its agents, employees, invitees
or visitors. The obligation of Landlord to maintain and repair the Leased
Premises shall be limited to the Building Standard Improvements. Landlord shall
not otherwise be obligated to make improvements to, or repairs of, the Leased
Premises. All leasehold improvements other than the Building Standard
Improvements will be maintained by Tenant or, at Tenant's request, by Landlord
at Tenant's expense which shall be an amount equal to Landlord's actual cost
plus an additional charge often percent (10%) of such cost for administrative
cost recovery.
4.6 PEACEFUL ENJOYMENT. Tenant shall, and may peacefully have, hold and
enjoy the Leased Premises, subject to the other terms hereof, provided that
Tenant pays the Rent herein recited and performs all of Tenant's covenants and
agreements herein contained. It is understood and agreed that this covenant and
any and all other covenants of Landlord contained in this Lease shall be binding
upon Landlord and its successors only with respect to breaches occurring during
its and their respective ownerships of Landlord's interest hereunder.
4.7 NO WARRANTIES. LANDLORD'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE
EXPRESSLY STATED IN THIS LEASE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR
IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE
BEEN MADE BY LANDLORD OTHER THAN THOSE CONTAINED IN THIS LEASE. TENANT HEREBY
WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED
PREMISES WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4.8 FORCE MAJEURE. Landlord shall be excused for the period of any delay
and shall not be deemed in default with respect to the performance of any of the
terms, covenants and conditions of this Lease when prevented from so doing by a
cause or causes beyond Landlord's control, which shall include without
limitation, all labor disputes, governmental regulations or controls, fire or
other casualty, inability to obtain any materials or services, or acts of God.
V.
5.1 PAYMENTS BY TENANT. Tenant shall pay all Rent at the times and in the
manner herein provided. Any failure by Tenant to pay Rent shall give rise to the
rights and remedies provided in Section 6.8.
5.2 DAMAGE TO PROJECT. Subject to the provisions of Section 6.14, at
Tenant's own cost and expense, and by use of a contractor or contractors
approved in writing by Landlord, Tenant shall repair or replace in accordance
with all Legal Requirements any damage or injury done to the Leased Premises,
the Project or the Complex, or any portion thereof, caused by Tenant or Tenant's
agents, employees, invitees or visitors, which repairs or replacements must be
made to the same or as good a condition as existed prior to such injury or
damage; provided, however, Landlord, at its option, may make such repairs or
replacements, and Tenant shall repay Landlord on demand the actual cost
thereof (plus a charge equal to ten percent (10%) of such costs for
administrative cost recovery).
5.3 CARE OF THE LEASED PREMISES. Subject to the provisions of Section 4.5,
at Tenant's own cost and expense, and by use of a contractor or contractors
approved in writing by Landlord, Tenant shall keep the Leased Premises and all
leasehold improvements in a good and presentable condition, at least similar to
the condition as of the Commencement Date, normal wear and tear excepted, and
shall perform all repairs and improvements required by any Legal Requirement. If
Tenant fails to commence any such repairs to the Leased Premises and the
leasehold improvements within ten (10) days after written notice from Landlord,
and thereafter diligently proceed with such repair until completion, Landlord,
at its option, may make such repair or any replacement deemed necessary by
Landlord, and Tenant shall pay to Landlord on demand Landlord's cost thereof
plus a charge equal to fifteen percent (15%) of such
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costs for administrative cost recovery. Tenant shall not commit or allow any
waste or damage to be committed on any portion of the Leased Premises or
Project. Upon the expiration or any earlier termination of this Lease, Tenant
shall deliver up said Leased Premises to Landlord in as good a condition as such
premises existed on the date of initial occupancy of the Leased Premises,
ordinary wear and tear excepted. Upon the expiration or termination of this
Lease, Landlord shall have the right to re-enter and resume possession
immediately of the Leased Premises and Tenant's leasehold improvements.
5.4 ASSIGNMENT AND SUBLETTING.
(a) Except as provided in Section 5.4(b), Tenant shall not, without
Landlord's prior written consent (which may be withheld in Landlord's absolute
discretion), (i) assign, convey, mortgage, pledge, encumber, or otherwise
transfer (whether voluntarily, by operation of law, or otherwise) this Lease or
any interest hereunder; (ii) allow any lien to be placed upon Tenant's interest
hereunder; (iii) sublet the Leased Premises or any part thereof; or (iv) permit
the use or occupancy of the Leased Premises or any part thereof by any one other
than Tenant. Any attempt to consummate any of the foregoing without Landlord's
consent shall be of no force or effect and shall be an Event of Default under
this Lease. For purposes hereof, (A) the transfer of the ownership or voting
rights in a controlling interest of the voting stock of Tenant (if Tenant is a
corporation), (B) the transfer of a general partnership interest or the transfer
of twenty-five percent (25%) of the limited partnership interests in Tenant (if
Tenant is a partnership), (C) the merger or consolidation of Tenant with or into
any other corporation or entity, or (D) a sale or transfer of fifty percent
(50%) or more of Tenant's assets, at any time throughout the Term shall be
deemed to be an assignment of this Lease.
Notwithstanding the provisions of the first sentence of this subsection
(a), the consent of Landlord need not be obtained if the assignment or
subletting is to an Affiliate (defined below) of_____________ ("Company") so
-------
long as (1) the assignee or sublessee shall be engaged in the same field of
services as Company, (2) the assignee or sublessee is engaged in a business
customarily acceptable for a tenant in a first class high-rise office building
in metropolitan Dallas, Texas, (3) any assignee shall assume all of the
obligations of Company under this Lease, (4) at the time of such assignment or
subletting, this Lease is in full force and effect and there is no breach under
this Lease on the part of Tenant, and (5) the assignee's or sublessee's proposed
use of the Leased Premises is not in violation of this Lease (such Affiliate of
Company complying with clauses (1), (2), (3), (4) and (5), hereinafter a
"Permitted Affiliate"). At least ten (10) days prior to the effective date of
-------------------
any such assignment or sublease to a Permitted Affiliate. Tenant agrees to
furnish Landlord with notice of such assignment or sublease and copies of the
instruments effecting any such assignment or sublease. Additionally, within
thirty (30) days after the effective date of any such assignment or sublease to
a Permitted Affiliate. Tenant agrees to furnish Landlord with copies of the
fully executed instruments effecting any such assignment or sublease and
documentation establishing Tenant's satisfaction of the requirements set forth
above applicable to any such sublease or assignment. Any such assignee of Tenant
must assume and agree in writing to fully perform and observe all of the
obligations and agreements of Tenant under this Lease and any such sublessee
shall sublease such portion of the Leased Premises subject to the provisions of
this Lease. No such assignment or subletting shall relieve Company, any other
tenant, or any guarantor of this Lease of any covenants or obligations under
this Lease or any such guaranty and Company, any other tenant, and any
guarantors of this Lease shall remain fully liable hereunder and thereunder.
Notwithstanding anything to the contrary set forth in this Lease, the rights
granted to Company under this paragraph of subsection (a) as to assignments and
subleases to Permitted Affiliates shall not be assignable by Company, shall
inure only to the benefit of Company and shall not be enforceable by any
assignee or sublessee of Company.
As used herein, "Affiliate" shall mean any person or entity
---------
controlling, controlled by, or under common control with, another person or
entity. "Control" as used herein means the possession, direct or indirect, of
-------
the power to direct or cause the direction of the management and policies of
such controlled person or entity (the ownership, directly or indirectly, of at
least fifty-one percent (51%) of the voting securities of, or possession of the
right to vote, in the ordinary direction of its affairs, at least fifty-one
percent (51%) of the voting interest in, any person or entity shall be presumed
to constitute such control).
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(b) Notwithstanding the provisions of Section 5.4(a) above,
Tenant shall be permitted to sublease the Leased Premises or assign its interest
in this Lease after Tenant initially occupies the Leased Premises subject to the
provisions of this Section 5.4(b). If Tenant should desire to assign this Lease
or sublet the Leased Premises or any part thereof, Tenant shall give Landlord
written notice (which shall specify the proposed economic terms and duration of
the proposed sublease or assignment and shall contain information concerning the
business, reputation and creditworthiness of the proposed sublessee or assignee
as shall be sufficient to allow Landlord to form a commercially reasonable
judgment with respect thereto) of Tenant's desire to sublease or assign at least
forty-five (45) days in advance of the date on which Tenant desires to make such
sublease or assignment (the "Notice"). Landlord then shall have thirty (30) days
------
following receipt of such Notice within which to notify Tenant in writing that
Landlord elects, in its sole and absolute discretion, to (i) permit Tenant to
assign this Lease or sublet such space subject to Landlord's approval of the
assignee or sublessee, or (ii) terminate this Lease as to the space so affected
as of the date so specified by Tenant (and as to option (ii) only Tenant will be
relieved of all further obligations hereunder as to such terminated space). If
Landlord should fail to notify Tenant in writing of such election within said
thirty (30) day period. Landlord shall be deemed to have elected option (i). If
Landlord elects, or is deemed to have elected, option (i), Landlord shall not
unreasonably withhold such consent to such sublessee or assignee if (l) any such
sublessee or assignee is creditworthy as determined by Landlord and is of a
character, kind and type customarily found in first-class office buildings in
Dallas, Texas, (2) such sublease or assignment does not violate any lease
agreement with any other tenant or potential tenant with which Landlord has
entered into a lease or a letter of intent (as applicable) in the Project, and
(3) the use of the Leased Premises by such proposed assignee or sublessee is
permitted under this Lease. Without limiting the foregoing, in no event shall
the following be considered as suitable assignees or sublessees under this
subsection (b): any governmental body, agency or bureau (of the United States,
any state, county, municipality or any subdivision thereof); any foreign
government or subdivision thereof; any health care professional or health care
service organization; schools or similar organizations; employment agencies;
radio, television or other communication stations; restaurants; and retailers
offering retail services from the Leased Premises. If Landlord elects, or is
deemed to have elected, option (i) and fails to approve or disapprove any such
sublessee or assignee within ten (10) days following Landlord's election or
deemed election of option (i), such sublessee or assignee and the proposed
sublease or assignment shall be deemed disapproved. If Landlord elects, or is
deemed to have elected, option (i) and the proposed sublessee or assignee is
approved by Landlord, the following shall apply to the sublease or assignment
(and shall be conditions thereto):
(1) Each sublessee or assignee shall fully observe all
covenants of this Lease, including without limitation, the provisions of
Section 2.2 of this Lease, and no consent by Landlord to an assignment
or sublease shall be deemed in any manner to be a consent to (A) a use
not permitted under Section 2.2, or (B) an assignment by Tenant of any
rights which are otherwise not assignable pursuant to other provisions
of this Lease;
(2) At the time of any such assignment or subletting, this
Lease is in full force and effect and there is no breach under this
Lease on the part of Tenant;
(3) Any such assignment or subletting shall be subject to
all the terms, covenants and conditions of this Lease and any assignee
must assume in writing all the rights and obligations of the assignor
hereunder;
(4) If the aggregate rental, bonus or other consideration
paid by the assignee or sublessee of any such space exceeds the sum
of (A) the Base Rental as adjusted by the Base Rental Adjustment paid to
Landlord for such space during the applicable period, plus (B) the
reasonable out-of-pocket third party costs and expenses actually
incurred by Tenant under or in connection with such sublease or
assignment for (x) broker's commissions paid by Tenant with regard to
the transfer, (y) reasonable legal fees with regard to the transfer, and
(z) expenses of finishing out or renovation of the space involved [but
specifically excluding any charges payable to partners, shareholders or
employees of Tenant in connection with such sublease or assignment]),
then such excess shall be paid to Landlord within fifteen (15) days
after receipt by Tenant together with all consideration received in
connection with such assignment. With any payment made by
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Tenant to Landlord under this clause (4), Tenant shall furnish Landlord
with an accounting prepared and certified to by Tenant of its determination
of the sums owed to Landlord hereunder;
(5) No assignment or subletting by Tenant shall relieve Tenant
or any guarantor of this Lease of any obligations or covenants under this
Lease or any such guaranty and Tenant and any guarantor of this Lease shall
remain fully liable hereunder or thereunder (as applicable); and
(6) A copy of the original sublease or assignment (and all
amendments thereto) shall be delivered to Landlord within fifteen (15) days
from the effective date thereof.
If the proposed sublessee or assignee is approved by Landlord and
Tenant fails to enter into the sublease or assignment with the approved
sublessee or assignee within one hundred eighty (180) days after the date Tenant
submitted its proposal to Landlord, then Landlord's approval of the proposed
sublease or assignment shall be deemed null and void and Tenant must comply
again with all of the conditions of this Section 5.4.
(c) If, in accordance with this Section 5.4, the Leased Premises
or any part thereof is sublet or occupied by other than Tenant or this Lease is
assigned, Landlord, during the continuance of a breach under this Lease on the
part of Tenant, if any, may collect rent from the subtenant, assignee or
occupant, and apply the net amount collected to Rent due by Tenant to Landlord
under this Lease, and Tenant hereby authorizes and directs any such assignee or
sublessee to make such payments of rent direct to Landlord upon receipt of
notice from Landlord. Additionally, Landlord is authorized and empowered, on
behalf of Tenant, to endorse the name of Tenant upon any check, draft, or other
instrument payable to Tenant evidencing payment of rent, or any part thereof,
and to receive and apply the proceeds therefrom in accordance with the terms of
this Lease. No such subletting, assignment, occupancy, or collection shall be
deemed (i) a waiver of any of Tenant's covenants contained in this Lease, (ii) a
release of any guarantor of this Lease from further performance of its covenants
under such guaranty, (iii) a release of Tenant from further performance by
Tenant of its covenants under this Lease, or (iv) a waiver of any of Landlord's
other rights hereunder.
(d) Notwithstanding the giving by Landlord of its consent to any
sublease or assignment with respect to the Leased Premises, no sublessee or
assignee may exercise any renewal options, expansion options, rights of first
offer or similar rights under this Lease except (x) in accordance with a
separate written agreement entered into directly between such sublessee or
assignee and Landlord, or (y) the expansion options and the renewal options may
be exercised by any permitted assignee (but not a sublessee) of Tenant's entire
interest under this Lease that is a Permitted Affiliate, provided in the event
of clauses (x) or (y) Tenant continues to be liable for the performance of all
obligations hereunder, as increased or otherwise affected by the exercise of
such rights. Tenant may not exercise any renewal options, expansion options,
rights of first offer or similar rights under this Lease if Tenant has assigned
all of its interest in this Lease to other than a Permitted Affiliate.
(e) Any attempted assignment or sublease by Tenant in violation
of the terms and covenants hereof shall be void and shall be an Event of Default
under this Lease. Any consent by Landlord to a particular assignment or sublease
shall not constitute Landlord's consent to any other or subsequent assignment or
sublease, and any proposed sublease or assignment by a sublessee of Tenant shall
be subject to the provisions hereof as if it were a proposed sublease or
assignment by Tenant.
(f) In any subletting undertaken by Tenant, Tenant shall
diligently seek to obtain not less than fair market rental value for the
sublease space so sublet. In any assignment of this Lease in whole or in part,
Tenant shall seek to obtain from the assignee consideration reflecting a value
of not less than fair market rental value for the space subject to such
assignment. Notwithstanding anything to the contrary contained in this Section
5.4, Tenant shall not be permitted to sublease any portion of the Leased
Premises or assign this Lease to (i) any person or entity that is actually a
tenant of the Building or Complex at the time the Notice is furnished to
Landlord (an "Actual Tenant"), or (ii) any Affiliate of an Actual Tenant if such
------ ------
Affiliate intends to use a significant portion of the Leased Premises subject
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to such assignment or sublease for purposes of the conduct of the business then
being conducted by the Actual Tenant in its leased premises or such Affiliate is
entering into such assignment or sublease as a means to circumvent the
provisions of clause (i) above.
(g) Any improvements, additions, or alterations to the Building
or the Project that are required by Legal Requirements, or are reasonably deemed
necessary or appropriate by Landlord, as a result of any subletting or
assignment hereunder, shall be installed and provided without cost or expense to
Landlord.
5.5 ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.
(a) Tenant shall not permit the Leased Premises to be used for
any purpose other than that stated in Section 2.2 hereof, or make or allow to be
made any alterations, physical additions or improvements in or to the Leased
Premises, or place signs on or in the Leased Premises which are visible from
outside the Leased Premises, without first obtaining the prior written consent
of Landlord (which consent may be withheld in Landlord's sole discretion).
Notwithstanding the foregoing, Landlord will not unreasonably withhold its
consent to alterations, physical additions or changes to the Leased Premises
that do not adversely affect the Building structural, mechanical, electrical,
plumbing, heating, ventilating, air conditioning, life safety or other base
Building improvements or systems, provided such changes (i) are not visible from
the exterior of the Leased Premises or the Building, (ii) do not affect the
exterior of the Building, the structure of the Building or any public areas of
the Project, (iii) do not violate any provision of this Lease, (iv) do not
violate any Legal Requirements, and (v) will not interfere with the use and
occupancy of any other portion of the Project by any other tenant or occupant of
the Project or the Complex. If Landlord consents to said alterations,
improvements, or additions, or placement of signs, Landlord may impose such
conditions with respect thereto as are reasonably appropriate, including without
limitation, requiring Tenant to furnish Landlord with security for the payment
of all costs to be incurred in connection with such work, insurance against
liabilities which may arise out of such work, plans and specifications, and
permits for such work. Tenant's plans and specifications and construction means
and methods shall be subject to Landlord's written approval. Tenant shall
furnish to Landlord any documents and information requested by Landlord in
connection with the exercise of its rights hereunder. Landlord may hire outside
consultants to review such documents and information furnished to Landlord and
Tenant shall reimburse Landlord for the cost thereof, including reasonable
attorneys' fees, upon demand.
(b) The work necessary to make any permitted alterations,
improvements, or additions to the Leased Premises shall be done at Tenant's
expense by contractors approved in writing by Landlord (each such contractor
hereinafter referred to as an "Outside Contractor") or, at Landlord's election,
------- ----------
by Landlord (without cost or expense to Landlord). If Landlord performs any such
work, upon completion of such work Tenant shall pay Landlord a fee for
Landlord's supervision and administration of such work equal to ten percent
(10%) of the cost of such work. All work performed by an Outside Contractor
shall be performed in a good and workmanlike manner and in compliance with all
Legal Requirements, Landlord's requirements, the provisions of this Section 5.5
and all applicable Project Rules. Tenant shall give Landlord at least ten (10)
days prior written notice before the commencement of any work pursuant to this
Section 5.5. Additionally, it shall be Tenant's responsibility to ensure that
the Outside Contractor shall (i) conduct its work in such a manner so as not to
unreasonably interfere with any other construction occurring on or in the
Project or the Complex or with the transaction of business in the Project and in
the Complex; (ii) comply with such reasonable rules and regulations applicable
to all work being performed in the Project as may be promulgated from time to
time by Landlord; (iii) maintain such insurance and bonds in full force and
effect as may be reasonably requested by Landlord or as required by Legal
Requirements; and (iv) be responsible for reaching agreement with Landlord as to
the terms and conditions for all contractor items relating to conducting its
work. As a condition precedent to Landlord's approving the Outside Contractor
pursuant hereto, Tenant and the Outside Contractor shall deliver to Landlord
such assurances or instruments as Landlord may reasonably require to evidence
the Outside Contractor's compliance or agreement to comply with the provisions
of clauses (i), (ii), (iii), and (iv) of this subsection (b). Landlord retains
the right to make periodic inspections to assure conformity of the work of the
Outside Contractor with the aforementioned rules and regulations and with the
plans and specifications approved by Landlord. Within thirty (30) days after
substantial completion of any work by Tenant, Tenant, at Tenant's cost and
expense, shall furnish Landlord "as-built"
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drawings of such work and shall cause the architect(s) and/or engineer(s) that
performed in connection with the work to prepare a report, in form and substance
acceptable to Landlord, for the benefit of Landlord, certifying to the
compliance of the work constructed by any Outside Contractor with the plans and
specifications approved by Landlord. Each Outside Contractor shall not perform
and, upon the request of Landlord, whether written or oral, each Outside
Contractor shall cease to perform, any activity that is disruptive to the
conduct of business within the Project or Complex or other tenants or occupants
of the Project or Complex.
(c) Any and all such alterations, physical additions or improvements, when
made to the Leased Premises by Tenant or on Tenant's behalf, shall at once
become the property of Landlord and shall be surrendered to Landlord upon the
termination of this Lease by lapse of time or otherwise; provided, however, this
sentence shall not apply to movable equipment or furniture owned by Tenant. If
Tenant fails to remove such movables upon termination of this Lease, Landlord
may have the same removed and any resulting damage repaired at Tenant's expense.
In such event, such movables will automatically become the property of Landlord
and may be disposed of by Landlord in its sole discretion, without any right of
reimbursement therefor to Tenant.
(d) Tenant shall not allow any liens to be filed against the Leased
Premises or the Project in connection with the installation of Tenant's
improvements in, or any repair or alteration work to, the Leased Premises
performed by Tenant or an Outside Contractor. If any such liens shall be filed,
Tenant shall cause the same to be released within five (5) days after the filing
thereof by bonding or other method acceptable to Landlord; provided, however,
this sentence shall not apply to movable equipment or furniture owned by Tenant.
If Tenant shall fail to timely cancel or discharge said lien or liens as
required above, Landlord, at its sole option, may cancel or discharge the same
and Tenant shall pay to Landlord upon demand, Landlord's cost thereof plus a
charge equal to fifteen percent (15%) of such costs for administrative cost
recovery. Upon completion of any such work, Tenant shall deliver to Landlord
evidence of payment, contractors' affidavits and full and final waivers of all
liens for, labor, services, or material. Tenant shall indemnify and hold
harmless Landlord from all losses, costs, damages, claims and expenses
(including attorneys' fees and costs of suits), liabilities or causes of action
arising out of or relating to any alterations, additions or improvements that
Tenant or any Outside Contractor makes to the Leased Premises, including any
occasioned by the filing of any mechanic's, materialman's, construction or
other liens or claims (and all costs or expenses associated therewith) asserted,
filed or arising out of any such work. All materialmen, contractors, artisans,
mechanics, laborers and other parties hereafter contracting with Tenant for the
furnishing of any labor, services, materials, supplies or equipment with respect
to any portion of the Leased Premises are hereby charged with notice that they
must look solely to Tenant for payment of same and Tenant's purchase orders,
contracts and subcontracts in connection therewith must clearly state this
requirement. Landlord shall have the right at all times to post and keep posted
on the Leased Premises any notices permitted or required by Legal Requirements,
or that Landlord shall deem proper for the protection of Landlord, the Leased
Premises, the Project and any other party having an interest therein, from
liens. Without limiting the generality of the foregoing, Tenant shall repair or
cause to be repaired at its expense all damage caused by any Outside Contractor,
its subcontractors or their employees. Tenant shall reimburse Landlord for any
costs incurred by Landlord to repair any damage caused by any Outside Contractor
or any costs incurred by Landlord in requiring any Outside Contractor's
compliance with the rules and regulations. Additionally, Tenant shall reimburse
Landlord for the reasonable costs Landlord may incur to have an engineer review
all mechanical, structural, electrical, plumbing and life safety systems
installed by any Outside Contractor.
(e) Tenant agrees specifically that no food, soft drink or other vending
machine will be installed within the Leased Premises without Landlord's prior
written approval, which approval shall not be unreasonably withheld.
5.6 LEGAL USE AND VIOLATIONS OF INSURANCE COVERAGE. Tenant shall not occupy
or use the Leased Premises, or permit any portion of the Leased Premises to be
occupied or used, for any business or purpose other than that stated in Section
2.2 hereof, or for any business or purpose which is unlawful, disreputable or
deemed to be extra-hazardous on account of fire, which creates noxious or
offensive odors emanating from the Leased Premises, or generates chemicals or
hazardous substances. Tenant shall not use, operate or maintain the Leased
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Premises in such manner that any of the rates for any insurance carried by
Landlord or any other owner or occupant of premises in the Building shall
thereby be increased, or in such manner as will affect or cause a cancellation
of any such insurance policy.
5.7 LEGAL REQUIREMENTS; RULES OF THE PROJECT.
(a) As used in this Lease, "Legal Requirements" shall mean any applicable
------------------
law, statute, ordinance, order, rule, regulation, decree or requirement of a
Governmental Authority, and "Governmental Authority" shall mean the United
----------------------
States, the state, county, city and political subdivisions in which the Project
is located or which exercise jurisdiction over the Project, and any agency,
department, commission, board, bureau or instrumentality of any of them which
exercise jurisdiction over the Project. Tenant shall comply with (and shall
indemnify Landlord for Tenant's failure to comply with), and shall cause its
employees, contractors and agents to comply with, and shall use its best efforts
to cause its customers, visitors and invitees to comply with, all Legal
Requirements relating to the use, condition or occupancy of the Leased Premises
(including, without limitation, the Americans with Disabilities Act, all Legal
Requirements applicable to Tenant's business and operations in the Leased
Premises and all orders and requirements imposed by any Health Officer, Fire
Marshall, Building Inspector or other Governmental Authority) and with the rules
of the Project adopted by Landlord from time to time for the safety, care and
cleanliness of the Leased Premises and the Project and for preservation of good
order therein (the "Project Rules"). In the event of any conflict between the
------- -----
provisions of this Lease and the Project Rules, the provisions of this Lease
shall control. The initial Project Rules are attached hereto as Exhibit D.
------- -
(b) Without limiting the provisions of subsection (a) above, Tenant shall
comply with all applicable Legal Requirements regarding health, safety or the
environment (the "Environmental Laws"), including without limitation the
------------- ----
application for and maintenance of all required permits, the submittal of all
notices and reports, proper labeling, training and recordkeeping, and timely and
appropriate response to any Release (defined below) or other discharge of a
substance under Environmental Laws. In no way limiting the generality of the
foregoing, Tenant shall not cause or permit the use, generation, storage,
Release or disposal in or about the Leased Premises, the Project or the Complex
of any substances, materials or wastes subject to regulation under Legal
Requirements from time to time in effect concerning hazardous, toxic or
radioactive materials (collectively, the "Hazardous Materials"), unless Tenant
--------- ---------
shall have received Landlord's prior written consent, which consent Landlord may
withhold or revoke at any time in its sole discretion. Additionally, Tenant
shall not permit to be present upon the Leased Premises, or contained in any
transformers or other equipment thereon, any PCB's. "PCB" means any oil or other
---
substance containing polychlorinated biphenyl (as defined in 40 CFR 761.3).
Tenant shall not permit any asbestos, or any structures, fixtures, equipment or
other objects or materials containing asbestos on the Leased Premises. Tenant
shall immediately notify Landlord of the presence of any Reportable Quantity
(defined below) of a Hazardous Material on or about the Leased Premises. As used
in this Lease, "Reportable Quantity" shall mean that amount defined in the
---------- --------
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, the Federal Water Pollution Control Act, as amended, pertinent
regulations thereunder or other relevant Environmental Laws.
Tenant shall indemnify, protect, defend (with counsel reasonably approved
by Landlord) and hold Landlord, and the directors, officers, shareholders,
employees and agents of Landlord, harmless from any and all obligations, claims,
administrative proceedings, judgments, damages, fines, costs, and liabilities,
including reasonable attorneys' fees incurred in enforcing this Lease,
performance on Tenant's behalf, or collecting any sums due hereunder,
(collectively, the "Costs") that arise directly or indirectly from or in
-----
connection with the presence, suspected presence, Release (defined below), or
suspected Release of Hazardous Materials arising out of, in connection with, or
by reason of the action or inaction of Tenant, or Tenant's officers, directors,
partners, agents, employees, contractors, subtenants, invitees and visitors. As
used in this Lease, "Release" shall mean any spilling, leaking, pumping,
-------
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment (including the abandonment or
discarding of barrels, containers and other closed receptacles). If Landlord
incurs any Costs, Tenant shall pay to Landlord the amount thereof upon demand.
Without limiting the generality of the foregoing, there shall be included in
Costs, capital, operating, and maintenance costs incurred in connection with any
investigation or
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monitoring of site conditions, any clean up, containment, remedial, removal or
restoration work required or performed by any federal, state or local
governmental agency or political subdivision or performed by any nongovernmental
entity or person.
5.8 RIGHTS RESERVED BY LANDLORD. Tenant shall permit Landlord or its
agents or representatives to enter into and upon any part of the Leased Premises
at all reasonable hours and upon reasonable notice (except for emergencies and
routine cleaning for which such entry may be made at any time and without
notice) to inspect same, clean or make repairs, alterations or additions thereto
and to show same to prospective tenants, subtenants, mortgagees and purchasers
as Landlord may deem necessary or desirable. Additionally, Landlord shall have
the right from time to time, without unreasonable interference with Tenant's use
of the Leased Premises, to decorate and to make repairs, alterations, additions,
changes or improvements, whether structural or otherwise, in and about the
Project, or any part thereof, to enter upon the Leased Premises therefor, and to
alter or relocate entrances, passageways, doors, corridors, elevators, stairs,
rest rooms, or other General Common Areas, Service Areas or Common Areas, and
during the continuance of such work, to temporarily close doors, entryways,
public space and corridors in the Building. Tenant shall not be entitled to any
abatement or reduction of any sums due under this Lease by reason of the
foregoing activities, nor shall such activities be construed to be an eviction
of Tenant, a default by Landlord hereunder, or a breach of the covenant of quiet
enjoyment.
5.9 NUISANCE. Tenant shall conduct its business and control its agents,
employees, invitees, contractors and visitors in such a manner as not to create
any nuisance, or interfere with, annoy or disturb any other tenant or Landlord
in its operation of the Project.
5.10 SUBORDINATION. This Lease is subject and subordinate to each ground or
land lease which may now or hereafter cover all or any part of the Project and
to each mortgage or deed of trust which may now or hereafter encumber all or any
portion of the Project and to all renewals, modifications, consolidations,
replacements and extensions thereof. This Section 5.10 shall be self-operative
and no further instrument of subordination need be required by any mortgagee or
lessor. Tenant, however, upon Landlord's request, shall execute promptly any
appropriate certificate or instrument in confirmation of such subordination.
Tenant hereby constitutes and appoints Landlord as Tenant's attorney in fact to
execute any such certificate or instrument for and on behalf of Tenant in the
event Tenant fails to execute such certificate or instrument within ten (10)
days following Landlord's request. In the event of the enforcement by the lessor
under any such ground or land lease or the trustee, the mortgagee or the
beneficiary under any such mortgage or deed of trust of the remedies provided
for by law or by such ground or land lease, mortgage or deed of trust, Tenant,
upon request of any person or party succeeding to the interest of Landlord as a
result of such enforcement (collectively, "Successor"), automatically will
---------
become the tenant of such Successor without change in the terms or other
provisions of this Lease; provided, however, that such Successor shall not be
(a) subject to any credits, offsets, defenses or claims which Tenant may have
against any prior landlord, (b) bound by any payment of Rent for more than one
(1) month in advance, except prepayments in the nature of security for the
performance by Tenant of its obligations under this Lease, (c) bound by any
amendment or modification of this Lease made after the applicable ground or land
lease, mortgage or deed of trust is placed against the Project (and Tenant has
been given notice thereof) without the written consent of such trustee,
mortgagee, beneficiary or landlord, (d) liable for any act, omission, neglect or
default of any prior landlord, or (e) required to make any capital improvements
to the Project or the Leased Premises which Landlord may have agreed to make but
had not completed. Notwithstanding the foregoing, the holder of any ground or
land lease that may affect all or any portion of the Project or the holder of
any mortgage or deed of trust that may encumber all or any portion of the
Project may elect at any time to cause their interest in the Project to be
subordinate and junior to Tenant's interest under this Lease by filing an
instrument in the real property records of Dallas County, Texas effecting such
election and providing Tenant with notice of such election.
5.11 ESTOPPEL CERTIFICATE. Within ten (10) days after Landlord's request,
Tenant will execute an estoppel certificate certifying as to such facts (if
true) as Landlord (or mortgagees, ground or land lessors or proposed purchasers
of the Project) may reasonably request (including, in the case of mortgagees or
ground or land
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lessors, reasonable notice and cure provisions). Failure to deliver such
estoppel certificate within such ten (10) day period shall be deemed Tenant's
agreement to and acknowledgment of the statements contained therein.
5.12 TENANT'S REMEDIES. Tenant specifically agrees to look solely to
Landlord's (or its successors') interest in the Project for the recovery of any
judgment from Landlord, it being agreed that Landlord (and if Landlord is a
partnership, its partners [direct or indirect, general or limited], or if
Landlord is a corporation, its directors, officers or any successors in
interest) shall never be personally liable for any such judgment.
5.13 NAME OF BUILDING AND PROJECT. Tenant shall not utilize the name
of the Building, the Project or the Complex for any purpose whatsoever, except
to identify the location of the Leased Premises in Tenant's address. Landlord
shall have the right to change the name of the Building and/or the Complex or
the design or construction thereof whenever Landlord, in its sole discretion,
deems it appropriate without any liability to Tenant and without any consent of
Tenant being necessary.
VI.
6.1 CONDEMNATION.
(a) If the Leased Premises shall be taken or condemned (or sold in
lieu thereof) for any public purpose to such an extent as to render the Leased
Premises untenantable, either party shall have the right to terminate this Lease
by giving written notice of such election to terminate to the other party within
ten (10) days from the date of such condemnation or taking (or sale in lieu
thereof), which termination shall be effective on the date of the transfer of
possession of the Leased Premises to the condemning authority. If only a portion
thereof shall be so taken so as not to render the remainder untenantable, this
Lease shall not terminate, and Base Rental shall be diminished by an equitable
amount (based upon the square footage of Net Rentable Area so taken) and
Landlord shall, to the extent practicable, restore the Leased Premises so that
the remaining portion of the Leased Premises shall be partitioned off from the
portion so taken or condemned; however, Landlord shall be obligated to restore
or rebuild the damaged property only to the extent the holder of any mortgage or
deed of trust or the landlord under any ground lease makes the proceeds of such
taking available to Landlord for the purposes of rebuilding and restoration, or
if no mortgage or ground lease then affects the Project, then only to the extent
of the net proceeds of such taking. If all or substantially all of the Project
(whether or not the Leased Premises are affected), or a portion of the Project
(whether or not the Leased Premises are affected) as to cause the remainder of
the Project not to be economically feasible to operate, as reasonably determined
by Landlord, should be taken or condemned (or sold in lieu thereof) for any
public purpose, then this Lease, at the option of Landlord upon the giving of
notice to Tenant within ten (10) days from the date of such condemnation or
taking (or sale in lieu thereof), shall cease and terminate effective on the
date of the transfer of possession of the Leased Premises to the condemning
authority. If this Lease is terminated in accordance with this Section 6.1(a),
Base Rental shall be apportioned on a per diem basis and shall be payable
through the effective date of the termination. All proceeds from any taking or
condemnation (or sale in lieu thereof) of the Leased Premises or any portion of
the Project shall belong to and be paid to Landlord, and Tenant shall not be
entitled to any portion of such award (except that Tenant shall have all rights
permitted under the laws of the State of Texas to appear, claim and prove in
proceedings relative to such taking (i) the value of any fixtures, furnishings,
and other personal property which are taken but which under the terms of this
Lease Tenant is permitted to remove at the end of the Term, (ii) the unamortized
cost [such costs having been amortized on a straight line basis over the Term
excluding any renewal terms] of Tenant's leasehold improvements which are taken
that Tenant is not permitted to remove at the end of the Term and which were
installed solely at Tenant's expense [i.e., not paid for by Landlord or
purchased with allowances provided by Landlord], and (iii) relocation and moving
expenses, but not the value of Tenant's leasehold estate created by this Lease
and only so long as such claims in no way diminish the award Landlord receives
from the condemning authority).
(b) In the event of any taking or condemnation for any public purpose
of the Leased Premises or any portion thereof occurs for one hundred eighty
(180) days or less, then it shall be deemed a temporary taking, this
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Lease shall continue in full force and effect, Landlord shall be under no
obligation to make any repairs or alterations, and at Landlord's option either
(i) there shall be no abatement of Base Rental and all proceeds of such taking
relating to the Term occurring during such taking shall belong to Tenant, or
(ii) Base Rental shall be diminished by an equitable amount (based upon the
square footage of Net Rentable Area so taken) for the period of time the Leased
Premises are so taken and Landlord shall be entitled to the proceeds of such
taking.
6.2 DAMAGES FROM CERTAIN CAUSES. Landlord shall not be liable
or responsible to Tenant for any loss or damage to any property or person
occasioned by theft, fire, casualty, vandalism, acts of God, public enemy,
injunction, riot, strike, inability to procure materials, insurrection, war,
court order, requisition or order of governmental body or authority, or for any
other causes beyond Landlord's reasonable control, or for any damage or
inconvenience which may arise through repair or alteration of the Leased
Premises, the Project, or the Complex. All goods, property or personal effects
stored or placed by Tenant in or about the Project shall be at the sole risk of
Tenant.
6.3 [INTENTIONALLY OMITTED]
6.4 HOLDING OVER. In the event of holding over by Tenant after
expiration or termination of this Lease without the consent of Landlord, Tenant
shall be deemed a tenant at will and shall pay, as Base Rental for each month or
any part thereof of any such holdover period, the greater of (a) 175% the Base
Rental and Base Rental Adjustment which Tenant was obligated to pay for the
month immediately preceding the end of the Term, or (b) 175% of the prevailing
market rent for the Leased Premises (as reasonably determined by Landlord),
(plus any additional rent provided for under this Lease). No holding over by
Tenant after the Term shall operate to extend the Term. Additionally, in the
event of any unauthorized holding over by Tenant, Tenant shall indemnify
Landlord against (i) all claims for damages by any other lessee to whom Landlord
may have leased all or any part of the Leased Premises covered hereby, and (ii)
all other losses, costs and expenses, including attorneys' fees, incurred by
Landlord by reason of such holding over. Any holding over with the consent of
Landlord in writing shall thereafter constitute this Lease a lease from month to
month.
6.5 CASUALTY. In the event of a fire or other casualty in the Leased
Premises, Tenant shall immediately give notice thereof to Landlord. If the
Leased Premises shall be destroyed by fire or other casualty so as to render the
Leased Premises untenantable in whole or in part, Base Rental shall abate
equitably thereafter as to the portion of the Leased Premises rendered
untenantable (based upon the square footage of the Net Rentable Area rendered
untenantable) until the earlier to occur of (i) sixty (60) days after the date
Tenant is permitted to commence repair of its leasehold improvements for the
portion of the Leased Premises so damaged, or (ii) the date the Leased Premises
are made tenantable. Landlord agrees to commence and prosecute repair of the
Building Standard Improvements promptly and with all due diligence, and Tenant
agrees to commence and prosecute repair of its leasehold improvements promptly
and with all due diligence, subject in each case to delays for insurance
adjustments and delays caused by matters beyond the applicable party's control,
zoning laws and building codes then in effect, and to the termination rights set
forth below. In the event any portion of the Project is damaged by fire or other
casualty, and if such damage is such that Landlord cannot reasonably be expected
to substantially complete its repair work within one hundred and eighty (180)
days after the date of casualty, as reasonably estimated by a responsible
contractor selected by Landlord, then Landlord shall have the right to terminate
this Lease and all Rent owing under this Lease up to the time of such
destruction or termination shall be paid by Tenant and thenceforth this Lease
shall cease and come to an end. Landlord shall give Tenant written notice of its
decisions, estimates or elections under this Section 6.5 within sixty (60) days
after any such damage or destruction. In the event any portion of the Leased
Premises is damaged by fire or other casualty, and if such damage is such that
Landlord cannot reasonably be expected to substantially complete its repair work
of the Building Standard Improvements within the Leased Premises within one
hundred and eighty (180) days after the date of the casualty to the extent
necessary to allow Tenant to commence repair of its leasehold improvements, as
reasonably estimated by a responsible contractor selected by Landlord, and
Landlord has not terminated this Lease as herein provided, then Tenant shall
have the right, within thirty (30) days after Landlord delivers the estimate to
Tenant of time to restore, to terminate this Lease. Notwithstanding anything to
the contrary contained in this Section 6.5. if at the time
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of any damage to the Project, less than one (1) year remains in the Term, then
Landlord, at Landlord's sole option, shall have the right to terminate this
Lease. Additionally, notwithstanding anything to the contrary contained in this
Section 6.5, (a) Landlord shall be obligated to restore or rebuild (i) the
damaged property only to the extent of the net insurance proceeds made available
to Landlord for restoration or rebuilding by the holder of any mortgage or deed
of trust or lessor under any ground lease, and (ii) only the portion of the
Leased Premises that consists of Building Standard Improvements and only to the
condition that existed immediately prior to the casualty, and nothing herein
shall be construed to obligate Landlord under any circumstances to repair or
restore any of Tenant's leasehold improvements in excess of Building Standard
Improvements, and (b) if the Leased Premises, the Project, or any portion
thereof shall be damaged through the negligence or willful misconduct of Tenant
or any of its agents, employees or invitees, the cost of any repairs made by
Landlord not covered by insurance proceeds received by Landlord shall be paid by
Tenant and Rent shall continue unabated.
6.6 ATTORNEYS' FEES. In the event Tenant or Landlord defaults in
the performance of any of the terms, covenants, agreements or conditions
contained in this Lease and the nondefaulting party places the enforcement of
this Lease, or any part thereof, or the collection of any sums due, or to become
due hereunder, or recovery of the possession of the Leased Premises, in the
hands of an attorney, or files suit upon the same, the defaulting party agrees,
to the extent permitted by applicable law, to pay the nondefaulting party all
reasonable attorneys' fees incurred by the nondefaulting party if such suit is
successful. In addition, if Tenant requests any consent of Landlord to any
assignment or sublease, or otherwise requests any consent or other action on the
part of Landlord, and Landlord deems it necessary for any documents to be
prepared or reviewed by its counsel, Tenant shall pay all reasonable attorneys'
fees and expenses incurred by Landlord in connection therewith.
6.7 ASSIGNMENTS BY LANDLORD. Landlord shall have the right to
transfer and assign, in whole or in part, all its rights and obligations
hereunder and in the Project and property referred to herein, and in such event
and upon its transferee's assumption of Landlord's obligations thereafter
accruing hereunder (any such transferee to have the benefit of, and be subject
to, the provisions of Section 4.6 and Section 5.12), no further liability or
obligation shall thereafter accrue against Landlord hereunder. Upon request by
Landlord, Tenant agrees to execute a certificate certifying such facts (if true)
as Landlord may reasonably require in connection with any such assignment by
Landlord.
6.8 DEFAULT BY TENANT. The occurrence of any of the following
events and the expiration of any grace periods hereafter described shall
constitute an "Event of Default" under this Lease on the part of Tenant:
----- -- -------
(a) Tenant shall fail to pay any sum to be paid by Tenant
under this Lease, and such failure shall continue for five (5) days
after Tenant's receipt of written notice from Landlord (provided that
Landlord shall only be obligated to give Tenant written notice of any
monetary default once in any twelve (12) month period, and thereafter
Tenant shall be deemed in default within five (5) days after failure
to make such payment without requirement of notice from Landlord);
(b) Tenant shall assign its interest in this Lease or
sublet any portion of the Leased Premises except as permitted in this
Lease or Tenant shall otherwise breach the provisions of Section 5.4
of this Lease;
(c) a breach shall be made in the performance of any of
the other covenants or conditions which Tenant is required to observe
and to perform (other than those referred to in subsections (a) and
(b) above), and such breach shall continue for fifteen (I5) days after
notice from Landlord of such breach (unless with respect to any
default which cannot be cured within fifteen (15) days due to causes
beyond Tenant's reasonable control, Tenant, in good faith, after
receiving such notice, shall have commenced and thereafter shall
continue diligently to perform all action necessary to cure such
default);
(d) if Tenant or any guarantor of this Lease is a
corporation, Tenant or any such guarantor shall cease to exist as a
corporation in good standing in the state of its incorporation, or, if
Tenant
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or any guarantor of this Lease is a partnership or other entity,
Tenant or any such guarantor shall be dissolved or otherwise
liquidated;
(e) if the interest of Tenant under this Lease shall be
subjected to any attachment, execution, levy or other judicial seizure
pursuant to any order or decree entered against Tenant in any legal
proceeding that is not stayed (so as to prevent seizure) pending
appeal and such order or decree is not vacated or bonded against so as
to prevent seizure upon the earlier to occur of (aa) fifteen (15)
days prior to the sale of such interest pursuant to such order or
decree, or (bb) thirty (30) days after entry of the order;
(f) Tenant shall fail or refuse to move into or take
possession of the Leased Premises within forty-five (45) days after
the Commencement Date; or
(g) if a breach occurs under, or any guarantor of this
Lease neglects or fails to perform or observe, any covenant, term,
provision, or condition contained in any such guaranty of this Lease.
If an Event of Default on the part of Tenant shall have occurred
under this Lease, then or at any time thereafter while such Event of Default
continues, Landlord, at Landlord's option, may have any one or more of the
following described remedies in addition to all other rights and remedies
provided at law or in equity:
(i) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter re-enter the Leased Premises and
correct or repair any condition which shall constitute a failure on
Tenant's part to keep, observe, perform, satisfy or abide by any term,
condition, covenant, agreement or obligation of this Lease and Tenant
shall fully reimburse and compensate Landlord on demand for the costs
incurred by Landlord in doing so; or
(ii) Landlord may terminate this Lease and forthwith
repossess the Leased Premises and remove all persons or property
therefrom, and be entitled to recover forthwith as damages a sum of
money equal to the total of (A) the cost of recovering the Leased
Premises (including, without limitation, attorneys' fees and costs of
suit), (B) the cost as reasonably estimated by Landlord of any
alterations of, or repairs to, the Leased Premises which are necessary
or proper to prepare the same for reletting, (C) the unpaid Rent owed
at the time of termination, plus interest thereon from due date at the
Interest Rate, (D) the present value of the balance of the Rent for
the remainder of the Term less the present value of the fair market
rental value (and in computing the fair market rental value the
factors taken into account shall include without limitation the market
rental concessions and the time necessary to relet the Leased
Premises) of the Leased Premises for said period (in each case using a
discount rate of eight percent (8%) per annum), and (E) any other sum
of money and damages owed by Tenant to Landlord; or
(iii) Landlord may terminate Tenant's right of possession
(but not this Lease) and may repossess the Leased Premises by forcible
entry or detainer suit or otherwise without demand or notice of any
kind to Tenant and without terminating this Lease, and remove all
persons or property therefrom, using such force as may be necessary
(Tenant hereby waiving any claim by reason of such reentry,
repossession or removal or by issuance of any distress warrant or writ
of sequestration), in which event Landlord may (but shall be under no
obligation to do so unless required by law), relet the Leased Premises
or any part thereof for the account of Tenant for such rent and upon
such terms as shall be satisfactory to Landlord (however, to the
extent Landlord is so required by law to relet the Leased Premises,
Landlord shall be under no obligation to relet the Leased Premises or
any portion thereof in preference to any other space in the Project or
on terms unsatisfactory to Landlord). For the purpose of such
reletting Landlord is authorized to decorate or to make any repairs,
changes, alterations or additions in or to the Leased Premises, or
provide leasing inducements or brokerage commissions that may be
necessary or convenient, and (A) if Landlord shall fail or refuse to
relet the Leased Premises, or (B) if relet and a sufficient sum shall
not be realized from such reletting (after paying the unpaid amounts
due hereunder earned but unpaid at the time of reletting plus interest
thereon at the Interest
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Rate, the cost of recovering possession [including, without
limitation, attorneys' fees and costs of suit], all of the costs and
expenses of such decorations, repairs, changes, alterations and
additions and all other expenses of such reletting [including, without
limitation, leasing inducements and brokerage commission] and of the
collection of the rent accruing therefrom) to satisfy the Rent
provided for in this Lease to be paid, then Tenant shall pay to
Landlord as damages a sum equal to the amount of the rental reserved
in this Lease for such period or periods or, if the Leased Premises
have been relet, Tenant shall satisfy and pay any such deficiency upon
demand therefor from time to time as the same accrues or becomes due.
Tenant agrees that Landlord may file suit to recover any sums falling
due under the terms of this Section 6.8 from time to time on one or
more occasions without Landlord being obligated to wait until
expiration of the Term, and no delivery or recovery of any portion due
Landlord hereunder shall be any defense in any action to recover any
amount not theretofore reduced to judgment in favor of Landlord, nor
shall such reletting be construed as an election on the part of
Landlord to terminate this Lease unless a written notice of such
intention be given to Tenant by Landlord. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter
elect to terminate this Lease for such previous breach. If Landlord
re-enters the Leased Premises or terminates this Lease pursuant to any
of the provisions of this Lease, Tenant hereby waives all claims for
damages which may be caused by such re-entry or termination by
Landlord. No such re-entry or termination shall be considered or
construed to be a forcible entry; or
(iv) Landlord is entitled and is hereby authorized,
without any notice to Tenant whatsoever, to enter upon the Leased
Premises by use of a master key, a duplicate key, picking the locks,
or other peaceable means, and to change, alter, and/or modify the door
locks on all entry doors of the Leased Premises, thereby excluding
Tenant, and its officers, principals, agents, employees, visitors and
representatives therefrom. In the event that Landlord has either
terminated Tenant's right of possession to the Leased Premises
pursuant to the foregoing provisions of this Lease, or has terminated
this Lease by reason of the Event of Default, Landlord shall not
thereafter be obligated to provide Tenant with a key to the Leased
Premises at any time; provided, however, that in any such instance,
during Landlord's normal business hours and at the convenience of
Landlord, and upon the written request of Tenant accompanied by such
written waivers and releases as Landlord may require, Landlord will
escort Tenant or its authorized personnel to the Leased Premises to
retrieve any personal belongings or other property of Tenant not
subject to Landlord's liens or security interests described in this
Lease or available under applicable laws. If Landlord elects to
exclude Tenant from the Leased Premises without permanently
repossessing the Leased Premises or terminating this Lease pursuant to
the foregoing provisions of this Lease, then Landlord (at any time
prior to permanent repossession or termination) shall not be obligated
to provide Tenant a key to re-enter the Leased Premises until such
time as all delinquent Rent has been paid in full and all other Events
of Default, if any, have been completely cured to Landlord's
satisfaction, and Landlord has been given assurance reasonably
satisfactory to Landlord evidencing Tenant's ability to satisfy its
remaining obligations under this Lease. During any such temporary
period of exclusion, Landlord will, during Landlord's regular business
hours and at Landlord's convenience, upon written request by Tenant,
escort Tenant or its authorized personnel to the Leased Premises to
retrieve personal belongings of Tenant or its employees, and such
other property of Tenant as is not subject to Landlord's liens and
security interests described in this Lease or available under
applicable laws. The provisions hereof shall override and control any
conflicting provisions of Section 93.002 of the Texas Property Code
(as amended).
6.9 INSOLVENCY OR BANKRUPTCY. The appointment of a receiver
to take possession of all or substantially all of the assets of Tenant or any
guarantor of any of Tenant's obligations under this Lease, or any general
assignment by Tenant for the benefit of creditors, or any action taken or
suffered by Tenant or any such guarantor under any insolvency, bankruptcy, or
reorganization act, other than an involuntary proceeding that is dismissed or
bonded against within twenty (20) days after the filing thereof, shall at
Landlord's option, constitute a breach of this Lease by Tenant. Upon the
happening of any such event or at any time thereafter, this Lease shall
terminate five (5) days after notice of termination from Landlord to Tenant. In
no event shall this Lease be assigned or assignable by voluntary or involuntary
bankruptcy or a proceeding in lieu thereof and, in no event shall this Lease
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or any rights or privileges hereunder be an asset of Tenant or any such
guarantor under any bankruptcy, insolvency, or reorganization proceeding.
6.10 NON-WAIVER. No failure or delay of Landlord in any one
instance to exercise any remedy or power given it herein or to insist upon
strict performance by Tenant of any obligation imposed on it herein in any other
instance shall constitute a waiver or a modification of the terms hereof by
Landlord in any one instance or any right it has herein to demand strict
compliance with the terms hereof by Tenant in any other instance. Additionally,
no express written waiver by Landlord shall affect any condition other than the
condition specified in such express written waiver and only for the time and in
the manner specifically stated. A receipt by Landlord of any Rent with knowledge
of the breach of any covenant or agreement contained in this Lease shall not be
deemed a waiver of such breach, and no waiver by Landlord of any provision of
this Lease shall be deemed to have been made unless expressed in writing and
signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser
amount than the Rent due under this Lease shall be deemed to be other than an
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 in this Lease provided. No course of conduct
between Landlord and Tenant, and no acceptance of the keys to or possession of
the Leased Premises before the termination of the Term by Landlord or any
employee of Landlord shall constitute a waiver of any such breach or of any
term, covenant or condition of this Lease or operate as a surrender of this
Lease. All of the remedies permitted or available to Landlord under this Lease,
or at law or in equity, shall be cumulative and not alternative and the exercise
of any such right or remedy shall not constitute a waiver or election of
remedies with respect to any other permitted or available right or remedy.
6.11 CASUALTY INSURANCE. Landlord shall maintain fire and
extended coverage insurance on the entire Project (excluding leasehold
improvements and the personal property of tenants) and on the Building Standard
Improvements in amounts desired by Landlord. Said insurance shall be maintained
at the expense of Landlord (which expense is to be included in Operating
Expenses) with an insurance company authorized to insure properties in the State
of Texas. All payments for losses thereunder shall be made solely to Landlord.
If the annual premiums to Landlord for such casualty insurance exceed the
standard premium rates because of the nature of Tenant's operations, contents or
improvements beyond Building Standard Improvements or because the same result in
extra-hazardous exposure, then Tenant shall upon receipt of copies of
appropriate premium invoices promptly reimburse Landlord for such increases in
such premiums. Tenant shall maintain at its expense fire and extended coverage
insurance on the full insurable value of all of the leasehold improvements and
Tenant's personal property, including removable trade fixtures, located in the
Leased Premises and on the full insurable value of all additions and
improvements (including fixtures) made by Tenant and not required to be insured
by Landlord above. Upon request of Landlord, Tenant shall deliver to Landlord a
duly executed certificate of insurance reflecting Tenant's maintenance of the
insurance required under this Section 6.11.
6.12 LIABILITY INSURANCE. Landlord and Tenant each shall
maintain separate policies of commercial general liability insurance with the
premiums thereon fully paid in advance, issued by and binding upon an insurance
company authorized to transact business in Texas and of good financial standing,
such insurance to afford minimum protection of not less than $2,000,000.00 in
respect of bodily injury or death and/or property damage in respect of any one
occurrence; provided, however, that Tenant shall carry such greater limits of
coverage as Landlord may reasonably request from time to time so long as
Landlord maintains similar limits of coverage.
6.13 HOLD HARMLESS. Except as otherwise expressly provided in
this Lease to the contrary, Landlord shall not be liable to Tenant, or to
Tenant's agents, servants or employees for any damage to person or property
caused by the negligence or intentional torts of Tenant, or its agents, servants
or employees, and Tenant agrees to indemnify and hold Landlord harmless from all
liability and claims for any such damage. Except as otherwise expressly provided
in this Lease to the contrary, Tenant shall not be liable to Landlord, or to
Landlord's agents, servants or employees for any damage to person or property
caused by the negligence or intentional torts of Landlord, or its agents,
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servants or employees, and Landlord agrees to indemnify and hold Tenant harmless
from all liability and claims for any such damage.
6.14 WAIVER OF SUBROGATION RIGHTS. ANYTHING IN THIS LEASE TO THE
CONTRARY NOTWITHSTANDING, LANDLORD AND TENANT EACH HEREBY WAIVES ANY AND ALL
RIGHTS OF RECOVERY, CLAIM, ACTION OR CAUSE-OF-ACTION, AGAINST THE OTHER, ITS
AGENTS (INCLUDING PARTNERS, BOTH GENERAL AND LIMITED), OFFICERS, DIRECTORS,
SHAREHOLDERS, CUSTOMERS, INVITEES, OR EMPLOYEES, FOR ANY LOSS OR DAMAGE THAT MAY
OCCUR TO THE LEASED PREMISES, OR ANY IMPROVEMENTS THERETO, OR THE PROJECT OF
WHICH THE LEASED PREMISES ARE A PART, OR ANY IMPROVEMENTS THEREON, OR ANY
PERSONAL PROPERTY OF SUCH PARTY THEREIN, BY REASON OF FIRE, THE ELEMENTS OR ANY
OTHER CAUSE WHICH IS OR IS REQUIRED TO BE INSURED AGAINST UNDER THE INSURANCE
POLICIES REFERRED TO IN SECTION 6.11 HEREOF, REGARDLESS OF CAUSE OR ORIGIN,
INCLUDING NEGLIGENCE OF THE OTHER PARTY HERETO, ITS AGENTS, PARTNERS,
SHAREHOLDERS, OFFICERS, DIRECTORS, CUSTOMERS, INVITEES OR EMPLOYEES, AND
COVENANTS THAT NO INSURER SHALL HOLD ANY RIGHT OF SUBROGATION AGAINST SUCH OTHER
PARTY. EACH PARTY SHALL ADVISE ITS RESPECTIVE INSURERS OF THE FOREGOING WAIVER
AND SUCH WAIVER SHALL BE A PART OF EACH POLICY MAINTAINED BY SUCH PARTY.
6.15 PARKING.
(a) At all times during the Term, Landlord agrees to furnish and
Tenant agrees to pay for and lease parking rights for (i) ten (10) vehicles in
the unreserved parking area designated by Landlord in the Garage (the "Must Take
---- ----
Unreserved Permits"), and (ii) zero (-0-) vehicles in the reserved parking area
---------- -------
as designated by Landlord in the Garage ("Reserved Permits"). Notwithstanding
-------- -------
the foregoing, Tenant shall have the right to elect at any time during the Term
to lease up to an aggregate of ten (10) additional permits to park vehicles in
the unreserved parking area designated by Landlord in the Garage (the "Optional
--------
Unreserved Permits"), by furnishing at least thirty (30) days prior written
---------- -------
notice to Landlord of Tenant's desire to lease such Optional Unreserved Permits
(however, in no event may the aggregate number of Parking Permits [defined
below] leased by Tenant at any one time during the Term pursuant to this Section
6.15 exceed twenty (20) Parking Permits) (the Must Take Unreserved Permits and
the Optional Unreserved Permits, collectively, the "Unreserved Permits"). No
---------- -------
specific spaces in the Garage are to be assigned to Tenant but Landlord will
issue to Tenant the aforesaid number of parking stickers and/or cards each of
which will authorize parking in the Garage of a vehicle on which the sticker is
displayed, or Landlord will provide a reasonable alternative means of
identifying and controlling vehicles authorized to be parked in the Garage.
Landlord may designate the area within which each such vehicle may be parked,
and Landlord may change such designations from time to time.
(b) As rental ("Parking Rental") for the Unreserved Permits and the
------- ------
Reserved Permits (collectively, the "Parking Permits"), Tenant covenants and
------- -------
agrees to pay Landlord during the Term, as additional rental hereunder, (A) the
sum of $40.00 per month plus any applicable sales tax for each of the parking
stickers/cards to be issued by Landlord as herein provided for Parking Permits
in the unreserved parking area of the Garage, and (B) the sum of $75.00 per
month plus any applicable sales tax for each of the parking stickers/cards to be
issued by Landlord as herein provided for Parking Permits in the reserved
parking area of the Parking Garage, such sums to be payable monthly in advance
on the first day of each and every month during the Term, and a pro rata portion
of such sum shall be payable for any partial calendar month in the event this
Lease commences (or ends) on a date other than the first (or last) day of a
calendar month. Tenant's obligation to pay the Parking Rental shall be
considered an obligation to pay Rent for all purposes hereunder and shall be
secured in like manner as is Tenant's obligation to pay Rent. Notwithstanding
the foregoing, provided an Event of Default has not occurred, Landlord shall
abate all Parking Rental as to the aforementioned Parking Permits for the period
from the Commencement Date through and until the day immediately preceding the
second (2nd) anniversary of the Commencement Date.
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<PAGE>
(c) If the parking spaces covered by the Parking Permits
are not available to Tenant during any portion of the Term due to causes beyond
the reasonable control of Landlord (including without limitation, as the result
of a casualty or condemnation) this Lease shall continue without abatement of
Rent and Landlord shall use reasonable efforts to make available to Tenant
sufficient substitute unassigned parking spaces (in the amount of those spaces
not available to Tenant) in the Complex, or, if sufficient parking spaces are
not available in the Complex, within a one (1) mile radius of the Project, until
the parking spaces covered by the Parking Permits are made available to Tenant.
The substitute parking spaces shall be provided to Tenant at a rental rate not
to exceed the rate Tenant would have paid had the parking spaces covered by the
Parking Permits been so available to Tenant in the Garage. In the event Landlord
does not make substitute parking spaces available to Tenant after notice of such
failure is delivered by Tenant to Landlord, Parking Rental shall abate as to the
Parking Permits for which parking spaces are not made available until substitute
parking spaces or the original parking spaces covered by the Parking Permits are
made available to Tenant. Landlord shall use its reasonable efforts to ensure
that the parking spaces covered by the Parking Permits are available to Tenant
throughout the Term.
(d) Landlord or the operator of the Garage may make, modify
and enforce reasonable rules and regulations relating to the parking of vehicles
in the Garage, and Tenant shall abide by such rules and regulations and shall
exercise reasonable efforts to cause its employees and invitees to abide by such
rules and regulations. Without limiting the foregoing, during hours other than
Building Operating Hours, the Garage shall be open to visitors to any portion of
the Complex. Additionally, Landlord reserves the right to alter the size of the
Garage.
6.16 SEVERABILITY. If any term or provision of this Lease,
or the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby. Each provision of this
Lease shall be valid and shall be enforceable to the extent permitted by law.
6.17 NOTICES. All notices, demands, consents and approvals
which may or are required to be given by either party to the other hereunder
shall be in writing and shall be given by personal delivery, by an overnight
courier, or by deposit in the United States mail, certified, postage prepaid and
addressed to the party to be notified at the address for such party specified
below, or to such other place as the party to be notified may from time to time
designate by at least fifteen (15) days' notice to the notifying party. Notice
deposited in the mail in the manner hereinabove described shall be deemed to
have been fully given and received (unless otherwise stated in the Lease) on the
third (3rd) day after it is so deposited whether or not actually received.
Notice given in any other manner shall be deemed given and received only if and
when received by the party to be notified.
If to Landlord: Hines Interests Limited Partnership
One Galleria Tower
13355 Noel Road, Suite 250
Dallas, Texas 75240
Attn: Property Manager
With a copy to: Hines Interests Limited Partnership
2800 Post Oak Boulevard
Houston, Texas 77056
Attn: Jeffrey C. Hines and E. Staman Ogilvie
-29-
<PAGE>
If to Tenant
prior to the
Commencement Date: 19111 Dallas Parkway
Suite 300
Dallas, Texas 75252
Attention: General Counsel
If to Tenant
on or after the
Commencement Date: One Galleria Tower
13365 Noel Road
Suite 1555
Dallas, Texas 75240
Attention: General Counsel
Additionally, each of Landlord and Tenant may designate up to
three (3) additional addresses to which copies of all notices shall be sent.
Furthermore, Tenant agrees to send copies of all notices required or permitted
to be given to Landlord under this Section 6.17 to each lessor under any
ground or land lease covering all or any portion of the Project and to each
holder of a mortgage or deed of trust encumbering all or any portion of the
Project that notifies Tenant in writing of its interest and the address to which
notices are to be sent. Tenant hereby appoints as an agent to receive the
service of all dispossessory or distraint proceedings and notices thereunder the
person in charge of or occupying the Leased Premises at the time, and, if no
person shall be in charge of or occupying the same, then such service may be
made by attaching the same on the main entrance of the Leased Premises.
6.18 SUCCESSORS. This Lease shall be binding upon and inure
to the benefit of Landlord, its successors and assigns, and shall be binding
upon and inure to the benefit of Tenant, its successors and, to the extent
assignment may be approved by Landlord hereunder, Tenant's assigns.
6.19 ENTIRETY. This instrument and any attached addenda or
exhibits signed by the parties hereto constitute the entire agreement between
Landlord and Tenant. No prior or contemporaneous promises, inducements,
representations or agreements, oral or otherwise, between the parties hereto not
embodied herein shall be binding or have any force or effect. Tenant will make
no claim on account of any representations whatsoever, whether made by any
renting agent, broker, officer or other representative of Landlord or which may
be contained in any circular, prospectus or advertisement relating to the Leased
Premises or the Project, or otherwise, unless the same is specifically set forth
in this Lease.
6.20 FINANCIAL STATEMENTS. If Landlord intends to sell all
or any portion of the Building or the Project (or any interest therein), or
obtain a loan secured by the Building or the Project (or any interest therein),
then Tenant shall, within fifteen (15) days of Landlord's written request,
furnish Landlord with copies of financial statements, dated no earlier than one
(1) year before such request, certified as accurate by Tenant, or, if available,
audited financial statements prepared by an independent certified public
accountant with copies of the auditor's statement, reflecting Tenant's then
current financial condition, or the financial condition of the individuals
comprising Tenant, in such form and detail as Landlord may reasonably request.
6.21 AMENDMENTS. This Lease may not be altered, changed or
amended, except by an instrument in writing, signed by both parties hereto.
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<PAGE>
6.22 VACATING THE LEASED PREMISES. If no portion of the Leased
Premises is occupied by Tenant or its permitted assignee or sublessee for longer
than one hundred eighty (180) consecutive days, even though Tenant continues
to pay the stipulated Rent under this Lease with respect thereto, and Tenant or
its permitted assignee or subtenant fails to re-occupy the same within sixty
(60) days after notice from Landlord, then from and after the expiration of said
sixty (60) day notice period, Landlord may terminate this Lease as to the Leased
Premises, without declaring Tenant in default under this Lease, by delivering
written notice to Tenant and Landlord and Tenant shall have no further
obligations under this Lease. Space which is vacated on account of fire or other
casualty or bona fide remodeling shall not be deemed unoccupied for purposes of
this Section 6.22. In no event shall anything contained herein be deemed a
waiver by Landlord of its rights under Section 6.8 of this Lease upon the
occurrence of an Event of Default.
6.23 MISCELLANEOUS.
(a) This Lease is declared to be a Texas contract, and all of
the terms hereof shall be construed according to the laws of the State of Texas.
(b) If Tenant is a corporation, partnership or other entity,
Tenant warrants that all consents or approvals required of third parties
(including but not limited to its Board of Directors or partners, to the extent
applicable) for the execution, delivery and performance of this Lease have been
obtained and that Tenant has the right and authority to enter into and perform
its covenants contained in this Lease. Likewise, if Landlord is a corporation,
partnership or other entity, Landlord warrants that all consents or approvals
required of third parties (including but not limited to its Board of Directors
or partners) for the execution, delivery and performance of this Lease have been
obtained and that Landlord has the right and authority to enter into and perform
its covenants contained in this Lease.
(c) Time is of the essence in this Lease.
(d) The terms and provisions of Exhibits A through D,
-------- - -
inclusive, attached hereto are hereby made a part hereof for all purposes.
(e) Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by Landlord or Tenant against the
other or any matter whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord to Tenant, the use or occupancy of the
Leased Premises by Tenant or any person claiming through or under Tenant, any
claim of injury or damage, and any emergency or other statutory remedy;
provided, however, the foregoing waiver shall not apply to any action for
personal injury or property damage. If Landlord commences any summary or other
proceeding for nonpayment of Rent or the recovery of possession of the Leased
Premises, Tenant shall not interpose any counterclaim of whatever nature or
description in any such proceeding, unless the failure to raise the same would
constitute a waiver thereof.
(f) If any right granted in this Lease or other provisions of
this Lease is subject to the rule against perpetuities and the same shall not
occur or shall not have vested on the date that is twenty-one (21) years after
the death of the last to die of all now living descendants of Ronald W. Reagan,
George H. W. Bush and Gerald R. Ford, all of whom are former Presidents of the
United States of America, then such right or provisions shall terminate as of
such date.
(g) Except to the extent expressly provided to the contrary in
this Lease, all references to days in this Lease shall refer to calendar days.
All references to "Business Days" in this Lease shall refer to days that
-------- ----
national banks are open for business in Dallas, Texas.
(h) Tenant agrees not to record this Lease. Additionally,
Tenant shall not disclose the terms of this Lease to any third party except (i)
legal counsel to Tenant, (ii) any assignee of Tenant's interest in this Lease or
sublessee of Tenant, (iii) as required by Legal Requirements, or (iv) for
financial reporting purposes.
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<PAGE>
(i) This Lease may be executed in multiple counterparts, each of
which shall constitute an original instrument, but all of which shall constitute
one and the same agreement.
(j) This Lease shall not be deemed or construed to create or
establish any relationship (other than that of landlord and tenant) or
partnership or joint venture or similar relationship or agreement between
Landlord and Tenant hereunder.
(k) Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or an option for lease, and it is
not effective as a lease or otherwise until execution and delivery by both
Landlord and Tenant.
(l) The voluntary or other surrender or termination of this Lease
by Tenant and/or Landlord shall not work a merger, but, at Landlord's sole
option, shall either terminate all existing subleases or subtenancies or shall
operate as an assignment to Landlord of all such subleases or subtenancies.
In Witness Whereof, the parties hereto have executed this Lease
as of the Effective Date.
LANDLORD:
DALLAS GALLERIA LIMITED,
a Texas limited partnership
By: HDG, Limited, a Texas limited partnership
General Partner
By: Hines Consolidated Investments, Inc.
a Delaware corporation
General Partner
TENANT:
AMTECH CORPORATION,
a Texas corporation,
doing business as
AMTC CORPORATION
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<PAGE>
EXHIBIT A
---------
DESCRIPTION OF LAND
-------------------
(ONE GALLERIA TOWER)
--------------------
Being a tract of land situated in the Joe Badgley Survey, Abstract No. 76, City
Block Nos. 7001 and 7002, City of Dallas, Dallas County, Texas and being more
particularly described by metes and bounds as follows:
COMMENCING at a cross cut in concrete paving at the intersection of the South
line of Alpha Road (a 64' R.O.W.) and the West line of Noel Road (a 55' R.O.W.);
thence South 00 deg. 02 mm. 30 sec. East, a distance of 1061.25 feet along the
said West line of Noel Road to the POINT OF BEGINNING.
THENCE South 00 deg. 02 min. 30 sec. East, a distance of 197.31 feet along the
said West line of Noel Road to an iron pipe for angle point;
THENCE South 00 deg. 03 min. 41 sec. West, a distance of 68.69 feet along the
said West line of Noel Road to a point for corner;
THENCE North 89 deg. 59 mm. 44 sec. West, a distance of 256.95 feet to a point
for corner;
THENCE North 00 deg. 00 mm. 16 sec. East, a distance of 266.00 feet to a point
for corner;
THENCE South 89 deg. 59 mm. 44 sec. East, a distance of 256.85 feet to the POINT
OF BEGINNING; said point being in the West line of Noel Road and containing
1.5690 acres of land.
A-1
<PAGE>
G A L L E R I A
OFFICE TOWER LEVEL 15
EXHIBIT B
[FLOOR PLAN]
FLOOR PLAN OF LEASED PREMISES
DENOTED BY LINED AREA
<PAGE>
EXHIBIT C
---------
SCHEDULE OF BUILDING STANDARD IMPROVEMENTS
------------------------------------------
"Building Standard Improvements" shall mean the following
------------------------------
leasehold improvements:
Partitions One (1) lineal foot of Building Standard type II
partition per twelve (12) square feet of Net Rentable
Area leased outside the core area in the case of a full
floor tenant and the Usable Area for a tenant on a
partial floor. All required partitions will be 5/8"
gypsum board, painted with Building Standard colors to
be provided by Landlord.
Ceilings Fissured type mineral fiber acoustical ceiling tile, 12"
x 12" x 5/8" thick , mechanically suspended on a
concealed grid throughout the Leased Premises.
Lighting Fixtures One (1) 2' x 4' recessed 3 tube fluorescent lighting
fixture with anodized aluminum 18 cell parabolic shaped
louvers, including initial lamping, per one hundred
(100) square feet of Usable Area.
Duplex Electric Outlets One (1) duplex wall-mounted convenience outlet for each
one hundred twenty (120) square feet of Usable Area.
Telephone Outlets One (1) telephone wall outlet for each two hundred ten
(2 1 0) square feet of Usable Area.
Floor Covering Building Standard commercial grade carpeting throughout
the Leased Premises.
Doors One ( 1) full height, solid core door with a metal frame
and lever handle latch set hardware per three hundred
(300) square feet of Usable Area.
Light Switches One ( I ) single pole light switch for each three
hundred (300) square feet of Usable Area. Group
switching will be provided in open areas.
Window Coverings One inch (1") horizontal aluminum slat mini-blinds for
exterior windows throughout the Leased Premises.
Fire Sprinkler Heads Ceiling mounted fire sprinkler heads throughout the
Leased Premises to conform with light hazard occupancy
fire protection system design criteria up to one
sprinkler per 125 square feet of Usable Area.
C-1
<PAGE>
EXHIBIT D
------- -
PROJECT RULES & REGULATIONS
------- ----- - -----------
1. Sidewalks, doorways, vestibules, halls, stairways,
elevator lobbies and other similar areas in the common areas of the Building
shall not be used for the storage of materials or disposal of trash, be
obstructed by tenants or Landlord, or be used by tenants or Landlord for any
purpose other than entrance to and exit from the tenant's leased areas and the
Building and for going from one part of the Building to another part of the
Building and/or Complex.
2. Plumbing fixtures shall be used only for the purposes for
which they are designed, and no sweepings, rubbish, rags or other unsuitable
materials shall be disposed into them. Damage resulting to any such fixtures
proven to result from misuse by a tenant, and not by Landlord's cleaning
contractors responsible for cleaning the tenant's leased area and the Building,
shall be the liability of said tenant.
3. Signs, advertisements, graphics or notices visible in or
from public corridors, any common area or public areas of the Building or from
outside the Building shall be subject to Landlord's (or Landlord's property
manager's) prior written approval. No part of the Complex may be defaced by
tenants.
4. Significant movement in or out of the Building of
furniture, office equipment, or any other bulky or heavy materials shall be
restricted to such hours as Landlord (or Landlord's property manager) shall
reasonably designate. Landlord (or Landlord's property manager) will determine
the method and routing of the movement of said items so as to ensure the safety
of all persons and property concerned and Tenant shall be responsible for all
costs and expenses associated therewith. Advance written notice of intent to
move such items must be made to the Landlord (or Landlord's property manager) at
least twenty-four (24) hours before the time of such move. For nonsignificant
movement in or out of the Building of portable items which do not require use of
dollies or other moving equipment, notice to Landlord (or Landlord's property
manager) shall not be required.
5. All deliveries (including messenger deliveries but
excluding deliveries of small hand carried parcels) to a tenant's leased
premises shall be made through the freight elevators. Passenger elevators are to
be used only for the movement of persons. Delivery vehicles shall be permitted
only in such areas as are designated by Landlord, from time to time, for
deliveries to the Building. Absolutely no carts or dollies are allowed through
the main entrances of the Building or on passenger elevators without the prior
written consent of Landlord (or Landlord's property manager). Tenants may obtain
the prior written consent of Landlord (or Landlord's property manager) for any
exception to the provisions of this Paragraph 5.
After-hours removal of hand carried items must be accompanied
by an "Equipment Removal Form" or "Property Pass" [to be provided by Landlord
(or Landlord's property manager)]. A letter signed by an authorized
representative of a tenant on such tenant's letterhead will also be acceptable.
A list of persons authorized to sign the Equipment Removal Form or Property Pass
(and any amendments thereto) will be furnished by each tenant to Landlord and
Landlord shall be entitled to rely thereon. Each tenant shall have the right to
amend such list from time to time upon written notice to Landlord (or Landlord's
property manager).
6. Landlord (or Landlord's property manager) shall have the
authority to approve the proposed weight and location of any safes and heavy
furniture and equipment, which shall in all cases stand on supporting devices
approved by Landlord in order to distribute the weight.
7. Corridor doors which lead to common areas of the Building
(other than doors opening into the elevator lobby on floors leased entirely to a
tenant) shall be kept closed at all times.
D-1
<PAGE>
8. Each tenant shall cooperate with Landlord (and Landlord's property
manager) in keeping its leased area neat and clean. No tenant shall employ any
person for the purpose of such cleaning other than the Building's cleaning and
maintenance personnel without prior approval of Landlord (or Landlord's property
manager).
9. All freight elevator lobbies are to be kept neat and clean. The
disposal of trash or storage of materials in these areas is prohibited.
10. No birds, fish or other animals shall be brought into or kept in, on or
about the Building (except for Seeing Eye dogs).
11. Tenants shall not tamper with or attempt to adjust temperature control
thermostats in their leased premises. Landlord shall promptly respond to each
tenant's notices as to, and Landlord (or Landlord's property manager) shall
adjust thermostats as required to maintain, the Building standard temperature.
Each tenant shall use reasonable efforts to keep all window blinds down and
tilted at a 45 degree angle toward the street to help maintain comfortable room
temperatures and conserve energy.
12. Each tenant will comply with all access control procedures necessary
both during business hours and after hours and on weekends. Landlord will
provide each tenant with prior notice of such access control procedures and any
changes thereto promptly.
13. Tenants are requested to lock all office doors leading to corridors and
to turn out all lights at the close of their working day; provided, however,
that no tenant shall be responsible to ensure that Landlord's cleaning
contractor locks doors and turns out lights after cleaning the tenant's leased
premises.
14. All requests for overtime air conditioning or heating must be submitted
in writing to Landlord (or Landlord's property manager) by an authorized
representative of the tenant. A list of persons authorized to request such
overtime services (and any amendments thereto) will be furnished by the tenant
to Landlord and Landlord shall be entitled to rely thereon. Any such request
must be made by 2:00 p.m. on the day desired for weekday requests, by 2:00 p.m.
Friday for weekend requests and by 2:00 p.m. on the preceding Business Day for
holiday requests. Requests made after that time may result in an additional
charge to such tenant, if acted upon by Landlord, but Landlord is in no event
obligated to act on untimely requests.
15. No flammable or explosive fluids or materials shall be kept or used
within the Building except in areas approved by Landlord, and each tenant shall
comply with all applicable building and fire codes relating thereto.
16. Tenants may not make any modifications, alterations, additions or
repairs to their leased premises and may not install any furniture, fixtures or
equipment in their leased premises which is in violation of any applicable
building and/or fire code governing their leased premises or the Project. The
tenant must obtain prior approval from Landlord (or Landlord's property manager)
of any such alterations, modifications and additions and shall deliver "as
built" plans therefor to Landlord (or Landlord's property manager), upon
completion, except as otherwise permitted in the tenant's lease. Such
alterations include, but are not limited to, any communication equipment and
associated wiring which must meet fire code. The Contractor conducting the
modifications and additions must be a licensed contractor, is subject to all
rules and regulations of Landlord (and Landlord's property manager) while
performing work in the Building and must obtain all necessary permits and
approvals prior to commencing the modifications and additions.
17. No vending machines of any type shall be allowed in tenant space
without the prior written consent of Landlord (or Landlord's property manager).
D-2
<PAGE>
18. All locks for doors in each tenant's leased areas shall
be Building Standard except as otherwise permitted by Landlord and no tenant
shall place any additional lock or locks on any door in its leased area without
Landlord's (or Landlord's property manager's) written consent except as
otherwise permitted in such tenant's lease. All requests for duplicate keys
shall be made to Landlord (or Landlord's property manager).
19. No tenant shall interfere in any way with other tenants'
(or their visitors') quiet enjoyment of their leased premises.
20. Landlord (or Landlord's property manager) will not be
liable or responsible for lost or stolen money, jewelry or other personal
property from any tenant's leased area or public areas of the Building or
Project.
21. No machinery of any kind other than normal office
equipment shall be operated by any tenant in its leased area without the prior
written consent of Landlord (or Landlord's property manager).
22. Canvassing, peddling, soliciting and distribution of hand
bills in the Building (except for activities within a tenant's leased premises
which involve only such tenant's employees) is prohibited. Each tenant is
requested to notify Landlord (or Landlord's property manager) if such activities
occur.
23. A "Tenant Contractor Entrance Authorization" form [to be
supplied by Landlord (or Landlord's property manager)] will be required for the
following:
A. Access to Building mechanical, telephone or
electrical rooms (e.g., Southwestern Bell Telephone employees).
B. After-hours freight elevator use.
C. After-hours building access by tenant's contractors.
Please note that the tenant will be responsible for contacting
Landlord's property manager in advance for clearance of such tenant
contractors.
All tenants will refer all contractors, contractors'
representatives and installation technicians tendering any service to them to
Landlord for Landlord's supervision, approval and control before the performance
of any contractual services. This provision shall apply to all work performed in
the Building (other than work under contract for installation or maintenance of
security equipment or banking equipment), including, but not limited to,
installations of telephones. telegraph equipment, electrical devices and
attachments, and any and all installations of every nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment and any other physical
portion of the Building.
24. Smoking is not permitted in the restrooms, stairwells,
elevators, public lobbies or public corridors.
25. Each tenant and their contractors are responsible for
removal of trash resulting from large deliveries or move-ins. Such trash must be
removed from the Building and Building facilities may not be used for dumping.
If such trash is not promptly removed, Landlord (or Landlord's property manager)
may cause such trash to be removed at the tenant's sole cost and expense plus a
reasonable additional charge to be determined by Landlord to cover Landlord's
administrative costs in connection with such removal.
26. Tenants may not install, leave or store equipment,
supplies, furniture or trash in the common areas of the Building (i.e., outside
their leased premises).
27. Each tenant shall provide Landlord's property manager
with names and telephone numbers of individuals who should be contacted in an
emergency.
D-3
<PAGE>
28. Tenants shall comply with the Building life safety program established
by Landlord (or by Landlord's property manager), including without limitation
fire drills, training programs and fire warden staffing procedures, and shall
exercise all reasonable efforts to cause all tenant employees, invitees and
guests to comply with such program.
29. To insure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc., shall be delivered to any leased area except by
persons appointed or approved by Landlord in writing.
30. Should a tenant require telegraphic, telephonic, annunciator or other
communication service, Landlord will direct the electricians where and how wires
are to be introduced and placed and none shall be introduced or placed except as
Landlord shall approve. Electric current shall not be used for space heaters,
cooking or heating devices or similar appliances without Landlord's prior
written permission.
31. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways.
32. No portion of any tenant's leased area shall at any time be used or
occupied as sleeping or lodging quarters, nor shall personnel occupancy loads
exceed limits reasonably established by Landlord for the Building.
33. The carrying of firearms of any kind in any leased premises, the
building in which such premises are situated, any related garage, or any related
complex of buildings of which the foregoing are a part, or any sidewalks,
drives, or other common areas related to any of the foregoing, is prohibited
except in the case of unconcealed firearms carried by licensed security
personnel hired or contracted for by tenants for security of their premises as
permitted by such tenants' leases or otherwise consented to by Landlord in
writing.
D-4
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EXHIBIT E
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JANITORIAL SPECIFICATIONS
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A. OFFICE AREAS
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1. Empty, clean and damp dust all waste receptacles and remove waste
paper and rubbish from the premises nightly; wash receptacles as
necessary.
Empty and clean all ash trays, screen all sand urns nightly and supply
and replace sand as necessary.
2. Vacuum all rugs and carpeted areas in offices, lobbies and corridors
nightly.
3. Hand dust and wipe clean with damp or treated cloth all office
furniture, files, fixtures, paneling, window sills and all other
horizontal surfaces nightly; wash window sills when necessary.
4. Damp wipe and polish all glass furniture tops nightly.
5. Remove all finger marks and smudges from vertical surfaces,
including doors, door frames, around light switches, private
entrance glass and partitions nightly.
6. Wash clean all water coolers nightly.
7. Sweep all stairways nightly, vacuum if carpeted.
8. Monitor all stairwells throughout the entire building daily and keep
in clean condition.
9. Damp mop spillage in office and public areas as required.
10. Damp dust all telephones as necessary.
B. WASH ROOMS
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1. Mop, rinse and dry floors nightly.
2. Scrub floors as necessary.
3. Clean all mirrors, bright work and enameled surfaces nightly.
4. Wash and disinfect all basins, urinals and bowls nightly, using
non-abrasive cleaners to remove stains and clean undersides of rim of
urinals and bowls.
5. Wash both sides of all toilet seats with soap and water and disinfect
nightly.
6. Damp wipe nightly, wash all partitions, tile walls and outside
surface of all dispensers and receptacles.
<PAGE>
7. Empty and sanitize all receptacles and sanitary disposals nightly;
thoroughly clean and wash at least once per week.
8. Fill toilet tissue, soap, towel and sanitary napkins dispensers
nightly.
9. Clean flushometers, piping, toilet seat hinges and other metal work
nightly.
10. Wash and polish all walls, partitions, tile walls and enamel surfaces
from trim to floor monthly.
11. Apply finish to tile floor when necessary as instructed by the Project
manager.
12. Vacuum all louvers, ventilating grills, and dust light fixtures
monthly.
NOTE: It is the intention to keep the washrooms thoroughly cleaned and
not to use a disinfectant or deodorant to kill odor. If a disinfectant
---
is necessary, an odorless product will be used with Landlord's
permission.
C. FLOORS
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1. Ceramic tile, marble and terrazzo floors to be swept and buffed
nightly and washed or scrubbed as necessary.
2. Vinyl asbestos, asphalt, vinyl, rubber or other composition floors and
bases to be swept nightly; such floors in public areas on multiple
tenancy floors to be waxed and buffed as needed.
3. Tile floors in office areas will be waxed and buffed monthly.
4. All floors stripped and rewaxed as necessary.
5. All carpeted areas and rugs to be vacuumed clean nightly.
6. Carpet shampooing will be performed at Tenant's request and billed by
Landlord.
D. GLASS
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1. Clean glass entrance doors and adjacent glass panels nightly.
E. HIGH DUSTING (Quarterly)
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1. Dust and wipe clean all closet shelving when empty and carpet sweep or
dry mop all floors in closets if such are empty.
2. Dust all picture frames, charts, graphs and similar wall hangings.
3. Dust clean all vertical surfaces such as walls, partitions, doors,
door backs and other surfaces above shoulder height.
4. Damp dust all ceiling air conditioning diffusers, wall grilles,
registers and other ventilating louvers.
5. Dust the exterior surfaces of lighting fixtures, including glass and
plastic enclosures.
<PAGE>
F. DAY SERVICE
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1. At least once, and more as deemed necessary during the day, check
men's washrooms for toilet tissue replacements.
2. At least once, and more as deemed necessary during the day, check
ladies' washrooms and toilet tissue and sanitary napkin replacements.
3. Supply toilet tissue, soap and towels in men's and ladies' washrooms
and sanitary napkins in ladies' washrooms.
4. As needed, vacuuming of elevator cabs will be performed.
5. There will be a surveillance of public areas to ensure cleanliness.
6. Clean ash urns as necessary in elevator lobbies.
7. Clean building glass entrance doors and panels as needed.
G. GENERAL
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1. Wipe all interior metal window frames, mullions, and other unpainted
interior metal surfaces of the perimeter walls of the building each
time the interior of the windows is washed (as requested by the
Project manager).
2. Keep janitorial closets in a clean, neat and orderly condition.
3. Wipe clean and polish all metal hardware fixtures and other bright
work nightly.
4. Dust and/or wash all directory boards as required, remove fingerprints
and smudges nightly.
5. Maintain building lobby, corridors and other public areas in a clean
condition.
6. Dust fire extinguishers and cabinets nightly (interior and exterior);
wash as necessary.
7. All baseboards (resilient flooring and carpeting areas) will be washed
and wiped clean as necessary.
8. Vacuum entrance mats nightly.
9. Hose and scrub plaza area and sidewalks as necessary.
10. Perform special cleaning needs of individual tenants as authorized and
directed by the Project manager.
11. Properly maintain exterior of building at ground level by ensuring
that curtain wall, glass, marble, etc., is kept in a clean condition.
Exterior stainless steel is to be cleaned or polished weekly.
12. Polish standpipes and sprinkler Siamese connections as necessary.
NOTE: Upon completion of nightly duties, floor supervisors will ensure
that all vacant offices have been cleaned and left in a neat and
orderly condition, all lights have been turned off and all exterior
doors locked.