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EXHIBIT 10.26
OFFICE LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF DALLAS
This LEASE AGREEMENT, made and entered into as of the 6th day of
September, 1996, by and between the Landlord and Tenant hereinafter named.
W I T N E S S E T H:
1. DEFINITIONS AND BASIC PROVISIONS. The following definitions and
basic provisions shall be used in conjunction with and limited by the reference
thereto in the provisions of this Lease:
(a) "Landlord": Government Employees Insurance Company
(b) "Tenant": Monarch Dental Associated, L.P., a Texas limited
partnership
(c) "Building": "The GEICO Building"
(d) "Premises": 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
as generally outlined in the plan attached hereto as Exhibit "A," which is
located on the real property described in Exhibit "A-1" attached thereto. On
each floor of the Building on which the entire space rentable to tenants is or
will be leased to one (1) tenant the term "Rental Area" to such floor shall be
computed by measuring to the inside face of the glass in the permanent outer
walls of the Building and adding a pro rata portion of the areas located within
the lobby on the ground floor of the Building. No deductions shall be made for
elevator lobbies, corridors, restrooms, mechanical rooms, electric rooms,
telephone closets, all vertical penetrations of the floor that are included for
the special use of Tenant, columns, projections and other structural portions of
the Building, and other similar facilities for the use of all tenants
(hereinafter sometimes called "Common Areas"). On each floor of the Building on
which the entire space referable to tenants is or will be leased to more than
one (1) tenant the term "rentable area" shall be the sum of (i) the entire area
included within the leased premises, being the area bounded by the interior of
the exterior wall or walls of the Building, the exterior of all walls separating
the leased premises from any public corridors or other public areas, and the
centerline of all walls separating the leased premises from other areas leased
or to be leased to other tenants, (ii) a pro rata portion of the area covered by
the elevator lobbies, corridors, restrooms, mechanical rooms, electric rooms,
columns and telephone closets situated on such floor, and (iii) a pro rata
portion of the area located within the lobby on the ground floor of the
Building. The Rentable area within the leased premises shall be the number of
square feet set below. The Rentable Area in the Premises has been calculated on
the basis of the foregoing definition and be hereby stipulated for all purposes
hereof to be 4145 square feet, which includes Tenant's occupied space plus
Tenant's portion of Common Areas. Such stipulation of the rentable square feet
comprising the Premises shall govern the Lease for all purposes, notwithstanding
that the same should be more or less as a result of a minor variations resulting
from actual construction and completion of the Premises for occupancy so long as
such work is done in accordance with the terms and provisions hereof.
Notwithstanding the inclusion of Common Areas in the calculation of rentable
square feet, it is understood that certain areas, such as mechanical rooms and
janitor closets, may be intended solely for use by Landlord and the building
manager in the operation of the Building. The total rentable area of the
Building shall be 244,585 square feet.
(e) "Lease term": A period of 39 months, commencing on October 1,
1996, (the "Commencement Date") and ending on December 31, 1999.
(f) "Basic Annual Rental": $ * , subject to escalation as
described in Paragraph 4 hereinbelow.
(g) "Monthly Rental Installment": $ * .
(h) "Operating Expense Adjustment": $ 1996 Base Year, subject
to escalation as described in Paragraph 4 hereinbelow.
(i) "Security Deposit": $5181.25 deposited with Landlord on the
date hereof.
* Months 1 - 24 at $15.00 psf or $5181.25 monthly
Months 25 - 39 at $15.50 psf or $5353.96 monthly
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(j) "Permitted use": The Premises are to be used and occupied by
Tenant solely for general office and for no other purpose or use without the
prior consent of Landlord.
2. LEASE GRANT. Landlord, in consideration of the rent to be paid
and the other covenants and agreements to be performed by Tenant and upon the
terms and conditions hereinafter stated, does hereby lease, demise and let unto
Tenant the Premises (as defined in paragraph 1(d) hereof) commencing on the
Commencement Date (as defined in paragraph 1(e) hereof or as adjusted as
hereinafter provided) and ending on the last day of the Lease term, unless
sooner terminated as herein provided. In the event the Premises are occupied by
Tenant prior to the stated date, the Commencement Date shall be the date such
occupancy commenced. If this Lease is executed before the Premises become
vacant, or otherwise available and ready for occupancy, or if any present
tenant or occupant of the Premises holds over, and Landlord cannot acquire
possession of the Premises prior to the Commencement Date of the Lease,
Landlord shall not be deemed to be in default hereunder, the Tenant agrees to
accept possession of the Premises at such time as Landlord is able to tender
the same and such date shall be deemed to be the Commencement Date and this
Lease shall continue for the Lease term described in paragraph 1(e) hereof. By
occupying the Premises, Tenant shall be deemed to have accepted the same as
suitable for the purpose herein intended and to have acknowledged that the same
comply fully with Landlord's covenants and obligations, except for punchlist
items.
3. RENT. In consideration of this Lease, Tenant promises and agrees
to pay Landlord, as an independent covenant the Basic Annual Rental (as defined
in paragraph 1(f) hereof) and which is subject to escalation as hereinafter
described, without deduction or set off, including the Operating Expense
Adjustment as described in Paragraph 1(g) hereinabove. It is agreed that
notwithstanding anything to the contrary, the Premises herein are leased for the
Basic Annual Rental for the lease term hereof, payable at the time of the making
of the Lease and that the provisions herein contained for the payment of such
rent in Monthly Rental Installments (as defined in paragraph 1(g) hereof) are
for the convenience of the Tenant only, and that if Tenant defaults in the
payment of a Monthly Rental Installment three times during the term of this
Lease, the rental payment schedule shall be adjusted, at Landlord's option, so
that rental hereunder shall be payable quarterly, in advance. A Monthly Rental
installment for any fractional month at the beginning or the end of the lease
term shall be prorated. Without impairing any of Landlord's rights or remedies
herein for the late payments of rent, if any Monthly Rental Installment is not
received by the Landlord on or before the 5th day of the month for which said
Monthly Rental Installment is not received by the Landlord on or before the 5th
day of the month for which said Monthly Rental Installment is due, a service
charge of 10% of the Monthly Rental Installment owed shall become due and
payable in addition to the Monthly Rental Installment owed. Said service charge
is for purpose of reimbursing Landlord for the extra costs and expenses incurred
in connection with the handling and processing of late Monthly Rental
Installment payments.
4. OPERATING EXPENSE ADJUSTMENT.
The Basic Annual Rental payable under paragraph 1(f) hereof is based,
in part, on operating expenses existing during the calendar year in which the
lease commences ("Base Year"). For the purpose of rental escalations under the
terms of the Lease, operating expenses are defined as and limited to: (i) ad
valorem taxes, for which Landlord is liable, assessed against the Land,
Building and improvements and in and upon which the Premises are located,
together with any special assessments and other real estate costs in the nature
of taxes or assessments for which Landlord is responsible; (ii) expenses of
operation, maintenance and repair of the Land, Building, sidewalks and courts
adjacent thereto in a manner deemed reasonable and appropriate and for the
best interest of the occupants; (iii) actual expenses incurred for employees
(as hereinafter defined), such as wages, fringe benefits, taxes, unemployment
and disability insurance, workmen's compensation insurance, social security
benefits and any other experience incurred in connection with such employees;
(iv) actual cost of materials and supplies used and consumed for the benefit of
the Building and the occupants; (v) full contract cost of third-party
contractors for all of the foregoing, including rubbish removal, elevator
maintenance, maintenances of air conditioning, heating and verification
equipment, management services, uniform supply, pest control and security
services; (vi) all utility services; and (vii) actual cost of insurance,
including fire and extended coverage and general liability insurance, but no
charge for insurance is included that reflects premiums due to an act or
omission of any tenant of the Building for which Landlord would be entitled to
reimbursement from such tenant. The term "employees" includes employees such as
superintendents, engineers, electricians, clerks, mechanics, helpers, security
officers, porters, cleaners, and window washers, as well as contract laborers
performing services for the Building and other persons, firms or corporations
providing services for the benefit of the Building.
Said operating expenses shall not include administrative salaries and
wages of persons not involved in the day-to-day operations of the Building,
state or federal income taxes or periodic alterations of improvements to the
construction of the Building, and in no case shall Tenant be charged additional
rent for any operating expense such as painting, repainting, redecorating,
special cleaning service or special security service which can be directly
related to the sole advantage of Landlord or any other particular occupant of
the Building other than Tenant. Operating expenses shall not include cost of
any repair or replacement which is or should be capitalized on Landlord's books
under generally accepted accounting principles, or other expenses which are not
customarily treated as operating expenses by the owners of similar buildings in
the general area.
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In the event that during the lease term said operating expenses for
1997 or any succeeding calendar year exceed the Actual 1996 Expenses per square
foot per year ("Base Expense Rate") for the total Rentable Area of the Building
(as defined in Paragraph 1(d) hereof), Tenant, within thirty (30) days after
written notification of the foregoing by Landlord, shall:
(a) Pay to the Landlord Tenant's proportionate share (1.7%) of such
increase for the year in question, said proportionate share being defined to
mean a fraction, the numerator of which is the square footage of the Premises
set out in Paragraph 1(d), and the denominator of which is the total rentable
area of the Building set out in Paragraph 1(d). The product resulting from the
application of such fraction to the increase shall constitute the amount of
additional rent Tenant shall pay.
(b) Additionally, Tenant shall pay to Landlord with the payment of
Monthly Rental Installments for the months following the month during which
the notice of escalated rents is given, a monthly escalation reserve on the
first day of each month for the remainder of the calendar year. The monthly
escalation reserve shall be equal to the total of Tenant's proportionate share
of such operating expense increase for the previous calendar year divided by
the number of months remaining in the then current calendar year subsequent to
the month in which the notice of escalated rent is given. Landlord shall apply
the total of the monthly escalation reserves paid by the Tenant to any increase
over the base expense rate for the calendar year in which the monthly
escalation reserves are paid. After the end of every calendar year Landlord
will deliver to Tenant a statement which sets forth (i) the previous year's
operating expenses, (ii) Tenant's proportionate share of any increases, (iii)
the adjustment, if any, reflecting the monthly escalation reserves paid, and
(iv) the net amount due Landlord or due to be reimbursed to Tenant, provided,
however, in no event shall the basic rent or the Monthly Rental Installments
ever be less than the amounts specified in Paragraph 1(f) and 1(g),
respectively.
Notwithstanding any expiration or termination of Tenant's right to
occupy the Premises or termination of this Lease prior to the lease expiration
date (except in the case of a consolidation by mutual agreement and except as
expressly set forth in Paragraph 22(d) hereof) Tenant's obligation to pay any
and all additional rent under this Lease shall continue and shall cover all
periods up to the lease expiration or termination date. Tenant's obligation to
pay any and all additional rent under this Lease and Landlord's and Tenant's
obligation to make the adjustments referred to in this Lease shall survive any
expiration or termination of this Lease.
If any amounts which become due by reason of escalation of rent are not
paid by the fifth day following the day on which they are due, a service charge
of 10% of such rental escalation amount shall become due and payable in
addition to such rental escalation. Said service charge is for the purpose or
reimbursing Landlord for the extra costs and expenses incurred in connection
with the handling and processing of late rental escalation payments.
5. SERVICES.
(a) Landlord agrees to furnish Tenant while occupying the Premises,
at Landlord's sole cost and expense: (i) hot and cold water at the points of
supply provided for general use of tenantry; (ii) electrical current for
Tenant's use and occupancy of the Premises to the extent reasonably deemed to
be standard by the Landlord, provided, however, that at costs for extraordinary
or unusual demand for electrical service shall be borne by Tenant; (iii)
heating and air conditioning at such times as Landlord normally furnishes such
services to all tenants of the Project and at such temperatures and in such
amounts as are reasonably considered by Landlord to be standard; (iv) periodic
janitor services; (v) replacement of proper standard light bulbs and tubes; and
(vi) elevator service in common with other tenants in the Building for ingress
and egress to and from the floor of the Premises during normal business hours
on generally accepted business days.
(b) Landlord does not warrant that any of said specified services
will be free from interruption or stoppage, but nevertheless Landlord shall use
reasonable diligence to resume any such interrupted or stopped service.
Anything to the contrary notwithstanding, no failure, to any extent, to furnish
such services or any stoppage or interruption of these defined services shall
render Landlord liable in any respect for damages to any other person, property
or business, nor shall any such failure, interruption or stoppage of such
services be deemed or construed as an eviction, actual or constructive, of
Tenant nor work an abatement of rent nor release Tenant from the obligation to
fulfill any covenant or agreement contained in this Lease.
6. LEASEHOLD IMPROVEMENTS. Landlord agrees to install at
Landlord's cost and expense, except as otherwise stated herein, the
improvements described in Exhibit "B" attached hereto. Landlord has made no
representations as to the condition of the Premises or the Building or to
remodel, repair or decorate, except as expressly set forth herein.
7. USE. Tenant shall use the Premises only for the permitted uses
(as defined in paragraph l(j) hereof). Tenant will not occupy or use the
Premises, or permit any portion of the Premises to be occupied or used for any
business purpose other than the permitted use or for any use or purpose which
is unlawful in part or in whole or deemed to be disreputable in any manner or
extra hazardous on account of fire, nor permit anything to be done which will
in any way increase the rate of fire insurance on the Building or contents; and
in the event that, by reason of acts of Tenant, there shall be any increase in
the rate of insurance on the Building or contents created by Tenant's act or
conduct of business then such acts of Tenant shall be deemed to be an
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event of default hereunder and Tenant hereby agrees to pay to Landlord the
amount of such increase on demand and acceptance of such payment shall not
consist of a waiver of any of Landlord's other rights provided herein. Tenant
will conduct its business and control its agents, employees and invitees in such
a manner as not to create any nuisance, nor interfere with, annoy or disturb
other tenants or Landlord in management of the Building, or carry on or permit
any operation which might emit offensive odors or conditions into other
portions of the Building or use any apparatus which might make undue noise or
set up vibrations in the Building. Tenant will maintain the Premises in a
clean, healthful and safe condition and will comply with all law, ordinances,
orders, rules and regulations, states, federal, municipal and other agencies or
bodies having any jurisdiction thereof) with references to use, condition or
occupancy of premises. Tenant will not without the prior written consent of
Landlord, paint, install lighting, window covering or decoration, or install any
signs, window or door lettering or advertising media of any type on or about the
Premises or any part thereof. Should Landlord agree in writing to any of the
foregoing items in the preceding sentence, Tenant will maintain such permitted
items in good condition and repair at all times.
8. ENVIRONMENTAL OBLIGATIONS.
(a) Tenant covenants that no hazardous or toxic materials shall be
brought onto, stored, or used at the Premises by the Tenant or any of its
employees, agents, independent contractors, licensees, subtenants or
invitees, except such materials as are typically found at first-class suburban
office complexes similar to the Premises, and that no substances shall be
placed into the plumbing and waste treatment systems of the Premises other than
substances such systems are designed to treat and discharge appropriately under
the Laws. The Tenant shall hold harmless, indemnify and defend the Landlord, to
the extent that the Landlord shall have any liability to any of the following:
its respective directors, officers, shareholders or partners, employees,
successors and assigns (collectively, the "Indemnified Persons") from and
against any direct (but not indirect or consequential) Environmental Damages,
resulting from events occurring during the Term, except for Environmental
Damages arising from the acts or omissions of the Indemnified Persons.
(b) "Environmental Damages" shall mean all claims, judgments,
damages (including punitive damages), losses, penalties, free, liabilities
(including strict liability), encumbrances, liens, costs and expenses of
investigation and defense of any claim, or any directive of any governmental or
quasi-governmental agency, department, commission, board, or bureau, whether
or not such is ultimately defeated, and of any settlement or judgement, for
which the Tenant or an Indemnified Person is liable under Environmental Laws
and which are required to be incurred under the Laws applicable to Hazardous
Material, including reasonable attorneys' fees and disbursements and
consultants' fees, any of which are incurred as a result of the existence or
related of Hazardous Material upon, about or beneath the Premises or migrating
from the Premises, or the existence of a violation of such Laws pertaining to
the Premises.
(c) "Hazardous Material" shall mean any hazardous or toxic
substance, material or waste (including constituents thereof) which is or
becomes regulated by one or more Governmental Authorities (hereinafter or
defined). The words "Hazardous Material" include any material or substance
which is (i) listed or defined as a "hazardous waste," extremely hazardous
waste,"" restricted hazardous wastes" "hazardous substance" or "toxic
substance" under any Laws, (ii) petroleum and its by products, (iii) asbestos,
(iv) polychlorinated biphenyl, (v) designated as a "hazardous substances"
pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.
1317), (vi) defined as a "hazardous wastes" pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, (42 U.S.C. 6903), (vii) defined
as "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Responses, Compensation and Liability Act (42 U.S.C. 9601 et
seq.), or (viii) defined as a toxic substance in the Toxic Substance Control
Act (15 U.S.C. 2601 et seq.).
9. REPAIRS AND MAINTENANCE.
(a) BY LANDLORD: Landlord shall at its expense maintain only the
roof, foundations, heating and air conditioning systems, common areas, plumbing,
elevators, the structural soundness of the exterior walls, the paving outside
the Buildings, and the landscaping in good repair and condition, except for
reasonable wear and tear. Landlord shall be responsible for pest eradication.
Tenant shall give immediate written notice to Landlord of the need for repairs
or corrections and Landlord shall proceed promptly to make such repairs or
corrections. Landlord's liability hereunder shall be limited to the cost of
such repairs or corrections.
(b) BY TENANT: Tenant shall at its expense and risk maintain the
Premises in good repair and condition, including, but not limited to repairs
(including all necessary replacements) to the windows, window glass, plate
glass, doors and the interior of the Premises in general. Tenant will not in
any manner deface or injure the Building, the Premises or related facilities
and will pay the cost of repairing any damage or injury done by Tenant or
Tenant's agents, employees or invitees. Tenant shall throughout the term of this
Lease take good care of the Premises and related facilities and keep them free
from waste and nuisance of any kind. If Tenant shall fail to make any repair
required hereunder (including all necessary replacements) within fifteen (15)
days after written notification to do so, Landlord may at the option make such
repair, and Tenant shall, upon demand therefor, pay Landlord for the cost
thereof together with interest on any such cost which remains unpaid following
such demand at the rate of ten percent (10%) per annum until paid.
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10. ALTERATIONS AND IMPROVEMENTS. At the end or other termination
of this Lease, Tenant shall deliver up the Premises with all improvements
located thereon (except as otherwise herein provided) in good repair and
condition, reasonable wear and tear excepted, and shall deliver to Landlord all
keys to the Premises. The cost and expense of any repairs necessary to restore
the condition of the Premises to said condition in which they are to be
delivered to Landlord shall be borne by Tenant. Tenant will not make or allow
to be made any alterations or physical additions in or to the Premises without
the prior written consent of the Landlord. All permanent alterations,
additions, or improvements made in or upon the Premises, either by Landlord or
Tenant, shall be the Landlord's property on termination of the Lease and shall
remain on the Premises, without compensation to the Tenant. All furniture,
movable trade fixtures and equipment installed by Tenant may be removed by
Tenant at the termination of the Lease if Tenant so elects, and shall be so
removed if required by Landlord, or if not so removed shall, at the option of
the Landlord, become the property of Landlord. All such installations, removals
and restoration shall be accomplished in good and workmanlike manner so as not
to damage the Premises or the primary structure or structural qualities of the
Building or the plumbing, electrical lines or other utilities.
11. COMMON AREAS. The use and occupation by Tenant of the Premises
shall include the use in common with others entitled thereto of the Common
Areas, parking areas, service roads, loading facilities, sidewalks, and other
facilities as may be designated from time to time by Landlord, subject,
however, to the terms and conditions of this Lease and to reasonable rules and
regulations for the use thereof as prescribed from time to time by Landlord.
All common areas described above shall at all times be subjected to the
exclusive control and management conformance of Landlord, and Landlord shall
have the right from time to time to establish, modify and enforce reasonable
rules and regulations with respect to all facilities and areas mentioned in
this Article. Landlord shall have the right to construct, maintain, and operate
lighting facilities on all areas and improvements; to police same; from time to
time to change the area, level, location and arrangement of parking areas and
other facilities hereinabove referred to (provided that no such changes in the
common areas shall material, adversely and permanently affect Tenant's use or
enjoyment of the Premises), and to restrict parking by tenants, their officers,
agents and employees to employee parking areas.
All areas and facilities not within the Premises, which Tenant may be
permitted to use and occupy, are to be used and occupied under a revocable
license, and if the amount of such areas is to be diminished, Landlord shall
not be subject to liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such diminution of such areas be
deemed constructive or actual eviction.
12. ASSIGNMENT AND SUBLETTING.
(a) Except as specified herein, Tenant shall not, without the prior
written consent of Landlord, which may be withheld in Landlord's reasonable
discretion, (i) assign or in any manner transfer this Lease or any estate or
interest therein, (ii) permit any assignment of this Lease or any estate or
interest therein by operation of law, (iii) sublease the Premises or any part
thereof, (iv) grant any license, concession or other right of occupancy of any
portion of the Premises, or (v) permit the use of the Premises by any parties
other than Tenant, its agents and employees. Any such consent, transfer,
sublease, grant or permit made without Landlord's prior written consent shall
be absolutely void. Consent by Landlord to one or more assignments or subleases
shall not operate as a waiver of Landlord's right as to any subsequent
assignments and sublessee. Notwithstanding any assignment or subleasing, Tenant
and any guarantor of Tenant's obligations under this Lease shall, at all times,
remain fully responsible and liable for the payment of the rent herein
specified and for compliance with all the Tenant's other obligations under this
Lease. Moreover, in the event that the rental due and payable under any sublease
(or a combination of the rental payable under any sublease plus any bonus or
other consideration therefor or incidental thereto) exceeds the rental payable
under this Lease, or if with respect to a permitted assignment, permitted
license or other transfer by Tenant permitted by Landlord, the consideration
payable to Tenant exceeds the rental payable under this Lease, then Tenant
shall be bound and obligated to pay Landlord all such excess rental and other
excess consideration within ten (10) days following receipt thereof by Tenant
from such sublessee, assignee, licensee or other transferee, as the case may
be.
(b) If Tenant is a general partnership or joint venture and there
shall be any change in the membership of such partnership or joint venture
subsequent to the execution of this Lease, such change in membership shall be
deemed an assignment of this Lease for purposes of Section 12(a) hereof. If
Tenant is a limited partnership and there shall be any change in the general
partner subsequent to the execution of this Lease, such change in the general
partner shall be deemed an assignment of this Lease for purposes of Section
12(a) hereof. If Tenant is a corporation and there shall be any change in the
control of the corporation subsequent to the execution of this Lease, such
change in control shall be deemed an assignment of this Lease, for purpose of
Section 12(a) hereof. This Section 12(b) shall not apply, however, if Tenant is
a corporation which has outstanding voting trust listed on a recognized
security exchange.
(c) Notwithstanding anything to the contrary set forth herein,
Tenant may sublease all or any portion of the Premises or assign its rights
under this Lease to an Affiliate without Landlord's prior written consent, but
Tenant shall remain primarily liable for payment of all rent and the
performance of all Tenant's
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obligations under this Lease. For purposes hereof, an "Affiliate" shall mean a
corporation, partnership, limited liability company or other entity which either
(i) has at least fifty-one percent (51%) of its outstanding ownership interests
owned, directly or indirectly, by Tenant, the current shareholders of Tenant,
any family members of the current shareholders of Tenant and/or any partnership,
corporation, limited liability company or other entity which is owned by Tenant,
the current shareholders of Tenant and/or the family members of the current
shareholders of Tenant, or (ii) is publicly traded on a nationally recognized
stock exchange. If Tenant desires to sublease all or any portion of the
Premises or to assign this Lease to an Affiliate, Tenant shall so notify
Landlord at least fifteen (15) days in advance of the date on which Tenant
desires to make such sublease or assignment. Tenant shall reasonably cooperate
with Landlord to provide Landlord with such information as Landlord may
reasonably request concerning the Affiliate which is to be a sublessee or
assignee.
13. INDEMNITY. Landlord shall not be liable for any injury to person
or damage to or loss of property on or about the Premises, caused by any actual
or alleged act, omission, negligence or misconduct from any cause, INCLUDING
LANDLORD'S NEGLIGENCE, or breach of this Lease by Tenant, its agents,
employees, subtenants, invitees, or by any other person entering the Building,
the Premises, or related facilities. Landlord shall not be liable or
responsible for any loss or damage to any property or death or injury to any
person occasioned by theft, fire, act of God, public enemy, criminal conduct of
third parties injunction, riot, strike, insurrection, war, court order,
requisition or order of any governmental body or authority, by other tenants of
the Building or related facilities or any other matter, or for any injury or
damage or inconvenience which may arise through repair or alteration of any
part of the Building, the Premises or related facilities, or failure to make
repairs or from any cause whatsoever. Tenant will indemnify and save harmless
Landlord of and from all fines, suits, claims, demands, losses and actions
(including attorney's fees) for any injury to person or damage to or loss of
property on or about the Premises caused by any actual or alleged act,
omission, negligence or misconduct from any cause, INCLUDING LANDLORD'S
NEGLIGENCE, or breach of this Lease by Tenant, its agents, employees,
subtenants, invitees.
14. MORTGAGES. Tenant accepts this Lease subject to any deeds of trust,
security interests or mortgages which might now or hereafter constitute a lien
upon the Building or improvements therein, the Premises, or related facilities
and to zoning ordinances and other building and fire ordinances and governmental
regulations relating to the use of the property. Tenant shall at any time
hereafter, on demand, execute any instruments or related or other documents that
may be required by any mortgage for the purpose of subjecting and subordinating
this Lease of any such deed of trust, security interest of mortgage. With
respect to any deed of trust, security interest or mortgage hereafter
constituting a lien on the Building or improvements therein, the Premises or
related facilities, Landlord, at its sole option, shall have the right to waive
the applicability of this paragraph 14 so that this Lease will not be subject
and subordinate to any such deed of trust, security interest or mortgage.
Landlord shall use reasonable efforts to obtain a nondisturbance agreement from
the entity which holds a deed of trust on the Building on the date of execution
of this Lease.
15. CASUALTY INSURANCE.
(a) Landlord shall, at all times during the term of this Lease maintain
a policy or policies of insurance with the premiums thereon fully paid in
advance, issued by and binding upon some solvent insurance company, insuring the
Building against losses or damage by fire, explosion, or other hazards and
contingencies for the full insurable value thereof; provided that Landlord shall
not be obligated to insure any furniture, equipment, machinery, goods or
supplies not covered by the Lease which Tenant may bring or obtain upon the
Premises, or any additional improvements which Tenant may construct thereon.
(b) Tenant shall maintain, at its sole expense, fire and extended
coverage insurance in an amount nor less than eighty percent (80%) of the full
insurable value of all its personal property, including removable trade fixtures
located on the Premises and on all additions and improvements thereto made by
Tenant. Tenant shall maintain, at its sole cost and expense, bodily injury
liability insurance in an amount of $500,000.00 bodily injury or death per
person, $1,000,000 bodily injury or death in the aggregate and property damage
liability insurance in an amount of $500,000.00. Such insurance shall
specifically make reference to the indemnity provision of Section 13 of this
Lease and shall name Landlord as an additional insured.
(c) All policies of insurance provided for herein to be carried by
Tenant shall be issued by insurance companies reasonably acceptable to Landlord
and certified to do business by the State of Texas and its insurance regulatory
bodies and shall be issued in the names of both Landlord and Tenant as named
insureds (without any liability on the part of the Landlord for premiums).
Executed copies of such policies of insurance or certificates thereof shall be
delivered to Landlord within ten (10) days before delivery of possession of the
Premises, and thereafter, within thirty (30) days prior to the expiration of
such policy. As often as any such policy shall expire or terminate, renewal or
additional policies shall be procured and maintained by Tenant in like manner
and to like extent. All policies of insurance delivered to Landlord must contain
provision that the company writing said policy will give to Landlord twenty (20)
days' notice in writing in advance of any cancellation or lapse or the effective
date of any reduction in the amounts of insurance. All public liability and
property damage policies shall be written as primary policies, not contributing
with, and not in excess of, coverage which Landlord may carry, if any. If Tenant
fails to provide Landlord with such evidence of insurance, Landlord may, at its
option, obtain insurance coverage, as provided above, and change Tenant for the
cost of the same, plus a 15% administrative fee.
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16. INSPECTION. Landlord or its representatives shall have the
right to enter into and upon any and all parts of the Premises at reasonable
hours with prior notice to (a) inspect same or clean or make repairs or
alterations or additions as Landlord may deem necessary (but without any
obligation to do so, except as expressly provided for herein), or (b) show the
Premises to prospective tenants (in the last one hundred and twenty (120) days
of the term of this Lease), purchasers or lenders, and Tenant shall not be
entitled to any abatement or reduction of rent by reasons thereof, nor shall
such be deemed to be an actual or constructive eviction.
17. CONDEMNATION. If, during the term of this Lease, or any
extension or renewal thereof, all of the Premises should be taken for any
public or quasi-public use under any governmental law, ordinance or regulation
or by right of eminent domain or by private purchase in lieu thereof, this Lease
shall terminate and the rent shall be abated during the unexpired portion of
this Lease effective on the date physical possession is taken by the condemning
authority, and Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease.
In the event a portion but not all of the Premises shall be taken for
any public or quasi-public use under any governmental law, ordinance or
regulation, or by right or eminent domain or by private sale in lieu thereof and
the partial taking or condemnation shall render the Premises unsuitable for
Tenant's business, then Landlord shall have the option, in its sole discretion,
of terminating this Lease, or, at Landlord's sole risk and expense, restricting
and reconstructing the Premises to the extent necessary to make some reasonably
tenantable. Should Landlord elect to restore, the Lease shall continue in full
force and effect with the rent payable during the unexpired portion of this
Lease adjusted to such an extent as may be fair and reasonable under the
circumstances, and Tenant shall have no claim against Landlord for the value of
any interrupted portion of this Lease.
In the event any condemnation or taking, total or partial, Tenant shall
not be entitled to any part of the award or price paid in lieu thereof, and
Landlord shall receive the full amount of such award or price, Tenant hereby
expressly waiving any right or claim to any part thereof. Tenant shall have the
right to seek to recover from the condemning party (but not from Landlord) such
compensation as may be awarded to Tenant on account of moving and relocation
expenses and depreciation to and removal of Tenant's personal property.
18. FIRE OR OTHER CASUALTY. If the Premises or any part thereof
shall be damaged by fire or other casualty, Tenant shall give prompt written
notice thereof to Landlord. In case the Building shall be so damaged by fire or
other casualty that substantial alteration or reconstruction of the Building
shall, in Landlord's sole option, be required (whether or not the Premises
shall been damaged by such fire or other casualty), or in the event any
mortgagee under a first mortgage or first deed of trust covering the Building
should require that the insurance proceeds payable as a result of said fire or
other casualty be used to retire the mortgage debt Landlord may, at its option,
terminate this Lease and the term and estate hereby granted by notifying Tenant
in writing of such termination within sixty (60) days after the date of such
damage or determination. If Landlord does not thus elect to terminate this
Lease, Landlord shall within sixty (60) days after the date of such damage
commence to repair and restore the Building and shall proceed with reasonable
diligence to restore the Building (except that Landlord shall not be
responsible for delays outside its control and the time period with which
Landlord is obligated to commence and/or complete such repairs shall be
extended by a period equal to such delay) to substantially the same condition
in which it was immediately prior to the happening of the fire or other
casualty, except that Landlord shall not be required to rebuild, repair, or
replace any part of Tenant's furniture or furnishings or fixture and equipment
removable by Tenant under the provisions of this Lease or any additions or
improvements to the Diminished Premises made by Tenant at Tenant's expense, but
such work shall to exceed the scope of the work done by Landlord at Landlord's
expense in originally improving the Building nor shall Landlord in any event be
required to spend for such work an amount in excess of the insurance proceeds
actually received by Landlord as result of the fire or other casualty plus any
deductible amount in excess of the insurance proceeds actually received by
Landlord as a result of the fire or other casualty plus any deductible amounts
thereunder. In addition, in the event of the occurrence of a casualty which is
not insured under the casualty insurance requirements to be carried by Landlord
pursuant to the terms hereof, Landlord shall have the option to terminate this
Lease. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such
damage or the repair thereof, except that, subject to the provisions of the
next sentence, Landlord shall allow Tenant a fair diminution of rent during the
time and to the extent the Premises are unfit for occupancy. If the Premises or
any other portion of the Building be damaged by fire or other casualty
resulting from the fault or negligence of Tenant or any of Tenant's agents,
servants employees, licensees, or invitees, the rent hereunder shall not be
diminished during the repair of such damage, and Tenant shall be liable to
Landlord for the cost and expense of the repair and restoration of the Building
caused thereby to the extent such cost and expense is not covered by insurance
proceeds. Any insurance which may be carried by Landlord or Tenant against loss
or damage to the Building or the Premises shall be for the sole benefit of the
party carrying such insurance and under its sole control.
19. HOLDING OVER. Should Tenant or any of its successors in
interest hold over the Premises, or any part thereof, after the expiration of
the term of this Lease or of any renewal or expiration thereof, unless
otherwise agreed in writing, such holding over may constitute and may be
construed, at Landlord's sole option, as a tenancy from month to month only at
a rental equal to the Monthly Rental Installment, and the Operating
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Expense Adjustment as described in paragraph hereof, plus fifty percent (50%)
of such amount. The inclusion of the preceding sentence shall not be construed
as Landlord's consent for the Tenant to hold over.
20. TAXES ON TENANT'S PROPERTY. Tenant shall be liable for all
taxes levied or assessed against personal property, furniture or fixtures
placed by Tenant in the Premises. If any such taxes for which Tenant is liable
are levied or assessed against Landlord's property and if Landlord elects to
pay the same or if the assessed value of the Landlord's property is increased
by inclusion of personal property, furniture or fixtures placed by Tenant in
the Premises, and Landlord elects to pay the taxes based on such increase, the
Tenant shall pay to Landlord upon demand that part of such taxes for which
Tenant is primarily liable hereunder.
21. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this Lease:
(a) Tenant shall fail to pay any Monthly Rental Installment, or any
portion of the Basic Rental hereby reserved, any portion of the Operating
Expense Adjustment, or any other sum owing under the terms of this Lease when
due and Tenant fails to make such payment within ten (10) days after written
notice thereof (a "Payment Default Notice") to Tenant; provided, however, that
Landlord shall be required to send only two Payment Default Notices during any
twelve (12) month period and no more than four Payment Default Notices during
the term of this Lease;
(b) Tenant shall fail to comply with any term, provision or
covenant of this Lease, other than the payment of rent, and shall not cure such
failure within ten (10) days after written notice thereof to Tenant, or, if
such failure cannot be completed within ten (10) days, then Tenant shall
commence to cure such failure within ten (10) days after written notice thereof;
(c) Tenant shall make an assignment for the benefit of creditors;
(d) Tenant shall file a petition under any section or chapter of
the National Bankruptcy Act, as amended, or under any similar law or statute of
the United States or any State thereof, or Tenant shall be adjudged bankrupt or
insolvent in any proceeding filed against Tenant thereunder and such
adjudication shall not be vacated or set aside within sixty (60) days;
(e) A receiver or Trustee shall be appointed for all or
substantially all of the assets of Tenant and such receivership shall not be
terminated or stayed within sixty (60) days;
(f) Tenant shall desert or vacate any substantial portion of the
Premises for a period of five (5) or more days; or
(g) Tenant makes an assignment or enters into a sublease in
violation of Paragraph 12 hereof.
22. REMEDIES. Upon the occurrence of any event of default specified
in Paragraph 21 hereof, Landlord shall have the option to pursue any one or
more of the following remedies without any notice or demand whatsoever:
(a) Terminate this Lease in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and peaceably take possession and expel or
remove Tenant and any other person who may be occupying said Premises or any
part thereof without being liable for prosecution or any claim of damages
thereof. Tenant agrees to pay to Landlord on demand the amount of all loss and
damage which Landlord may suffer by reason of such termination, whether through
inability to relet the Premises on satisfactory terms or otherwise.
(b) Enter upon and peaceably take possession of the Premises and
expel or remove Tenant and any other person who may be occupying the Premises
or any part thereof without being liable for prosecution or any claim for
damages therefor, and if Landlord so elects, relet the Premises on such terms
as Landlord shall deem advisable and receive the rent thereof. Tenant agrees to
pay to Landlord on demand any deficiency in basic rental that may arise by
reason of such reletting; and
(c) Enter upon the Premises, without being liable for prosecution or
any claim for damage therefor, and do whatever Tenant is obligated to do under
the terms of this Lease, and Tenant agrees to reimburse Landlord on demand for
any expenses which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease, and Tenant further agrees that Landlord shall not
be liable for any damages as resulting to the Tenant from such action, unless
caused by Landlord's gross negligence or willful misconduct.
(d) Notwithstanding anything expressed or implied herein, in the
event of the occurrence of the Event of Default specified in paragraph 21(f)
(vacation of the Premises for a period of five or more days) and if Tenant is
not otherwise in default, Landlord may as Landlord's sole remedy, terminate the
Lease, in which event Tenant shall immediately surrender the Premises to
Landlord and Tenants liability shall thereafter cease except for the payment of
rent that was outstanding on the termination date.
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No re-entry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention be given to Tenant. Notwithstanding any such
reletting or re-entry or taking possession, Landlord may at any time thereafter
elect to terminate this Lease for a previous default. Pursuit of any of the
foregoing remedies shall not preclude pursuit of any remedy herein provided,
constitute a forfeiture or waiver of any rent due to Landlord hereunder or of
any damages accruing to Landlord by reason of the violation of any of the
terms, provisions and covenants herein contained. Landlord's acceptance of rent
following an event of default hereunder shall not be construed as Landlord's
waiver of such event default. No waiver by Landlord of any violation or breach
of any of the terms, provisions and covenants herein contained shall be deemed
or construed to constitute a waiver of any other violation or breach of any of
the terms, provisions and covenants herein contained. Forbearance by Landlord
to enforce one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of any other violation
or default. The loss or damage that Landlord may suffer by reason of
termination of the Lease or the deficiency from any reletting as provided for
above shall include the expense of repossession and any repairs or remodeling
undertaken by Landlord following possession. Should Landlord at any time
terminate this Lease for any default, in addition to any other remedy Landlord
may have, Landlord may recover from Tenant all damages Landlord may incur by
reason of such default, including the cost of recovering the premises and the
loss of the basic rental then remaining unpaid.
23. SURRENDER OF PREMISES. No act or thing done by the Landlord or
its agents during the term hereby granted shall be deemed as acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless the same be made in writing and subscribed by
the Landlord.
24. ATTORNEY'S FEES. In case it should be necessary or proper for
Landlord to consult or place this Lease, or any amount payable by Tenant
hereunder, with an attorney concerning or for the enforcement of any of
Landlord's rights hereunder, then Tenant agrees in each and any such case to
pay to Landlord on demand a reasonable attorney's fee. In the event of any
legal action or proceeding brought by either party against the other arising
out of this Lease, the prevailing party shall be entitled to recover reasonable
attorney's fees and costs incurred in such action and such amount shall be
included in any judgment rendered in such proceeding.
25. LANDLORD'S LIENS. In addition to the statutory Landlord's lien,
Landlord shall have at all times, a valid security interest to secure payment
of all rentals and other sums of money becoming due hereunder from Tenant, and
to secure payment of any damages or less which Landlord may suffer by reason of
the breach by Tenant of any covenant, agreement or condition presently or
which may hereafter be situated on the Premises and all proceeds therefrom, and
such property shall not be removed therefrom without the consent of Landlord
until all arrears in rent as well as any and all other sums of money then due
to Landlord hereunder, shall first have been paid and discharged and all the
covenants, agreements and conditions hereof have been fully complied with and
performed by Tenant. Upon the occurrence of an event of default by Tenant,
Landlord may, in addition to any other remedies provided herein, enter upon
the Premises and take possession of any and all goods, wares, equipment,
fixtures, furniture, improvements and other personal property of Tenant
situated on the Premises, without liability for trespasses or conversion, and
sell the same as public or private sale, without having such property at the
sale, after giving Tenant reasonable notice of the time and place of any public
sale or of the time after which any private sale is to be made, at which sales
the Landlord or its assigns may purchase unless otherwise prohibited by law.
Unless otherwise provided by law, and without intending to exclude any other
manner of giving Tenant reasonable notice, the requirement of reasonable notice
shall be met if such notice is given in the manner prescribed in paragraph 28
of this Lease at least five (5) days before the time of sale. The proceeds
from any such disposition (less any and all expenses) shall be applied as a
credit against the indebtedness secured by the security interest granted in this
paragraph 25. Any surplus shall be paid to Tenant or as otherwise required by
law, and the Tenant shall pay any deficiencies forthwith. Upon request by
Landlord, Tenant agrees to execute and deliver to Landlord a financing
statement in form sufficient to perfect the security interest of Landlord in
the aforementioned property and proceeds thereof under the provisions of the
Uniform Commercial Code in force in the State of Texas. The statutory lien for
rent is not hereby waived, the security interest herein granted being in
addition and supplementary thereto. Notwithstanding anything contained herein
to the contrary, Landlord hereby covenants and agrees to subordinate all of
Landlord's liens covering any property that is now or hereafter owned by Tenant
to the liens and/or security interests of any third party lender which has
heretofore made or hereafter makes a loan to Tenant and which loan is to be
secured, in whole or in part, by any of the property that is owned by Tenant
and is now or hereafter situated on the Premises. In connection therewith,
Landlord shall execute and deliver to Tenant, within fifteen (15) business days
after Tenant's request therefor, a Subordination Agreement satisfying the terms
and provisions of the preceding sentence.
26. MECHANIC'S LIEN. Tenant will not permit any mechanic's lien or
liens to be placed upon the Premises or the Building or Improvements thereon
during the term hereof caused by resulting from any work performed, materials
furnished or obligations incurred by or at the request of Tenant, and in the
case of the filing of such lien Tenant will promptly either (a) pay same, or
(b) provide a bond or other security satisfactory to Landlord in Landlord's
sole discretion. If neither of the foregoing has been done within twenty (20)
days after written notice thereof from Landlord to Tenant, the Landlord shall
the right and privilege at Landlord's option of paying the same or any portion
thereof without inquiry as to the validity thereof and any amounts so paid,
including expenses and interest, shall be so much additional indebtedness
hereunder due from Tenant to
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Landlord and shall be repaid to Landlord immediately on rendition of xxxx
therefor, together with interest at ten percent (10%) per annum until repaid.
27. WAIVER OF SUBROGATION. Anything in the Lease to the contrary
notwithstanding, the parties hereto hereby waive any and all rights of
recovery, claim, action or cause of action against each other, their agents,
officers, and employees, for any loss or damage that may occur to the Premises
hereby demised, or any improvements thereto, or said Building of which the
Premises are a part of any improvements thereto, or related facilities, by
reason of the fire, the elements, or any other cause which could be insured
against under the terms of standard fire and extend coverage insurance
policies, regardless of cause or origin, including negligence of the parties
hereto, their agents, officers and employees.
28. NOTICES. Each provision of this Agreement, or of any applicable
governmental laws, ordinances, regulations, and other requirements with
reference to the sending, mailing or delivery of any notice, or with reference
to the making of any payment by Tenant to Landlord, shall be deemed to be
complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord in Dallas County, Texas, at the
address hereinbelow set forth, or at such other address as Landlord may
specify from time to time by written notice delivered in accordance herewith;
(b) Any notice or document required to be delivered hereunder shall
be deemed to be delivered if actually received and whether or not received when
deposited in the United States mail, postage prepaid, certified or registered
mail (with or without return receipt requested) addressed to the parties,
hereto at the respective addresses set out opposite their names below, or at
such other address as they have heretofore specified by written notice
delivered in accordance herewith:
LANDLORD:
Government Employees Insurance Company
---------------------------------------
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
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Xxxxxx, Xxxxx 00000
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TENANT:
Monarch Dental Associated, L.P.
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0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
---------------------------------------
Xxxxxx, Xxxxx 00000
---------------------------------------
Each of the above-listed addressees may change its address for notice purposes
pursuant to this paragraph 28, by delivering to the other addressee a written
notice of change of address, in a manner specified in this paragraph 28.
However, no such change of address shall be effective against another addressee
until written notice of such change is actually received by such addressee.
29. FORCE MAJEURE. Whenever a period of time is herein prescribed
for action to be taken by Landlord, the Landlord shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor, materials, war, governmental laws, regulations or restrictions or any
other causes of any kind whatsoever which are beyond the control of Landlord.
Whenever a period of time is herein prescribed for action to be taken by
Tenant, other than the payment of money by Tenant, Tenant shall not be liable
or responsible for, and there shall be excluded from the computation of any
such period of time, any delays due to strikes, riots, acts of God, shortages
of labor, materials, war, governmental laws, regulations or restrictions or any
other causes of any kind whatsoever which are beyond the control of Tenant.
30. SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws effective during
the term of this Lease, then and in the event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected thereby,
and it is also the intention of the parties to this Lease that in lieu of each
clause or provision of this Lease that is illegal, invalid, or unenforceable,
there be added as a part of the Lease a clause or provision as similar in terms
to such illegal, invalid or uneforceable clause or provision as may be possible
and be legal, valid and enforceable.
31. ENTIRE AGREEMENT; AMENDMENTS; BINDING EFFECT. This Lease
contains the entire agreement between parties and may not be altered, changed or
amended, except by instrument in writing signed by both parties hereto. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord and addressed to tenant, nor shall
any custom or practice which may grow up between the parties in the
administration of the terms hereof be construed to waive or lessen the right of
Landlord to insist upon the performance by Tenant in strict accordance with the
terms hereof. The terms, provisions, covenants and conditions contained in this
Lease shall apply to, inure to the benefit of, and be binding upon the parties
hereto, and upon their respective successors in interest and legal
representatives, except as otherwise expressly provided.
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32. QUIET ENJOYMENT. Provided Tenant has performed all of the
terms, covenants, agreements and conditions of this Lease, including the
payment of rent, to be performed by Tenant, Tenant shall peaceably and quietly
hold and enjoy the Premises for the term hereof, without hindrance from
Landlord, subject to the terms and conditions of this Lease.
33. RULES AND REGULATIONS. Tenant and Tenant's agents, employees,
and invitees will comply fully with all requirements of the rules and
regulations of the Project and related facilities which are attached hereto as
Exhibit "C", and made a part hereof as though fully set out herein. Landlord
shall at all times have the right to change such rules and regulations or to
promulgate other rules and regulations in such reasonable manner as may be
deemed advisable for safety, care, or cleanliness of the Building, the
Premises, or related facilities, and for preservation of good order therein,
all of which rules and regulations, changes and amendments will be forwarded to
Tenant in writing and shall be carried out and observed by Tenant. Tenant
shall further be responsible for the compliance with such rules and regulations
by the employees, servants, agents, visitors and invitees of Tenant.
34. BROKER'S OR AGENT'S COMMISSION. Tenant represents and warrants
that there are no claims for brokerage commissions or finder's fees in
connection with the execution of this Lease, except as listed below, and Tenant
agrees to indemnify and hold harmless Landlord against all liabilities and
costs and arising from such claims, including without limitation attorney's
fees in connection therewith. Landlord shall pay a commission of four and one
half percent (4 1/2%) to Xxxxxx International per a separate agreement with
Xxxxxx International.
35. GENDER. Words of any gender used in this Lease shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the contract otherwise requires.
36. GUARANTY, JOINT AND SEVERAL LIABILITY. If there be more than
one Tenant, the obligations hereunder imposed upon Tenant shall be joint and
several. If there be a guarantor of Tenant's obligations hereunder, any
obligations hereunder imposed upon Tenant shall be the joint and several
obligations of Tenant and such guarantor, and Landlord need not first proceed
against the Tenant hereunder before proceeding against such guarantor, nor
shall any such guarantor be released from its guaranty for any reasons
whatsoever, including without limitation, in case of any amendments hereto,
waivers hereof or failure to give such guarantor any notice hereunder.
37. TRANSFER OF LANDLORD'S RIGHTS. Landlord shall have the right
to transfer and assign, in whole or in part, all and every feature of its
rights and obligations hereunder, and in the Building and other property
referred to herein, provided that such assignee assumes all obligations of
Landlord under this Lease which accrued after the date of such assignment.
Tenant agrees that, in the event of such assignment, Landlord's will be relieved
of all obligations and liability under this Lease as to such assignment.
38. SECURITY DEPOSIT. Upon the occurrence of any event of default
by Tenant, Landlord may, from time to time without prejudice to any other
remedy, use the security deposit paid to Landlord by Tenant as herein provided
to the extent necessary to make good any arrears of rent and any other damages,
injury, expenses of liability caused to Landlord by such event of default. Any
remaining balance of such security deposit to be returned by Landlord to Tenant
upon termination of the Lease. Such security deposit shall not be considered
an advance payment of rent or a measure of Landlord's damages in case of
default by Tenant. In the event Landlord so uses the security deposit, Tenant
shall, upon demand, restore the same.
39. LANDLORD'S RIGHT OF INSPECTION. Tenant agrees to permit
Landlord and the authorized representative of Landlord to enter the Premises at
all reasonable hours for the purpose of inspecting the same and making any
necessary repairs to Premises with reasonable notice or to the Building and
performing any work therein that may be necessary to comply with any laws,
ordinances, rules, regulations or requirements of any public authority or of
the Board of Fire Underwriters or any similar body. Nothing herein shall imply
any duty upon the part of Landlord to do any such work which, under any
provision of this Lease Tenant may be required to perform and the performance
thereof by Landlord shall not constitute a waiver of Tenant's default in
failing to perform the same. Landlord may, during the progress of any work in
the Premises, keep and store upon the Premises all necessary materials, tools
and equipment. Landlord shall not in any event be liable for inconvenience,
annoyance, disturbance, loss of business or other damage of Tenant by reason of
making repairs or the performance of any work on the Premises, or on account of
bringing materials, supplies and equipment into or through the Premises during
the course thereof, and the obligations of Tenant under this Lease shall not
thereby be affected in any manner whatsoever. Tenant agrees to permit Landlord
and the authorized representatives of Landlord to enter the Premises at all
times during usual business hours during the final one hundred twenty (120)
days of the Term for purposes of showing the Premises to prospective tenants or
purchasers.
40. ESTOPPEL CERTIFICATE. Tenant will, at any time and from time
to time, upon request by Landlord, execute, acknowledge, and deliver to
Landlord a statement in writing executed by Tenant certifying that Tenant is in
possession of the Demised Premises under the terms of this Lease, that this
Lease is unmodified and in full effect (or, if there have been modifications,
that the Lease is in full effect as modified,
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and setting forth such modifications), stating the dates to which the rent has
been paid, and either stating that to the knowledge of Tenant no default exists
hereunder, or specifying each such default of which Tenant may have knowledge,
and such other matters as may be reasonably requested by Landlord, it being
intended that any such statement by Tenant may be relied upon by prospective
purchaser or mortgagee of the Building. Landlord will, at any time and from
time to time, upon request by Tenant, execute, acknowledge and deliver to
Tenant a statement in writing executed by Landlord certifying that this Lease
is unmodified and in full effect (or, if there have been modifications, that
the Lease is in full effect as modified, and setting forth such modifications),
stating the dates to which the Rent has been paid, and either stating that to
the knowledge of Landlord no default exists hereunder, or specifying each such
default of which landlord may have such knowledge.
41. CAPTIONS. The captions contained in this Lease are for
convenience of reference only, and in no way limit or enlarge the terms and
conditions of this Lease.
42. PLACE OF PERFORMANCE. Tenant shall perform all covenants,
conditions and agreements contained herein, including but not limited to
payment of rent, in Dallas County, Texas. Any suit arising from or relating to
this agreement shall be brought in Dallas County, Texas.
43. SPECIAL PROVISIONS.
(a) Landlord shall pay to a contractor which has been
approved in accordance herewith, up to $8.00 per square foot for tenant
improvements (the "Allowance"). Tenant will have a space planner prepare a
space plan (the "Space Plan") for the Premises and submit same for Landlord for
approval. The Space Plan may be paid for out of the Allowance, up to $1.00 per
square foot. Tenant's Space Plan and all plans and specifications for tenant
improvements must be approved in advance by Landlord. Tenant may submit the
name of a contractor to be included in the bidding process, and Landlord shall
invite such contractor, together with at least two other contractors, to bid
for the opportunity to be the general contractor for the tenant improvements.
Landlord shall select the successful bidder to be the general contractor to
perform the work. Landlord shall pay the approved contractor for the
improvements actually performed, up to the amount of $8.00 per square foot
(less the amount, up to $1.00 per square foot, expended for the Space Plan)
within thirty (30) days after a Certificate of Occupancy is obtained for the
Premises.
(b) Landlord will permit Tenant to use zero (0) covered
parking spaces. Such spaces will initially be reserved, but Landlord reserves
the right to relocate the spaces within the covered parking area at any time.
EXECUTED as of the date first written above.
LANDLORD:
GOVERNMENT EMPLOYEES INSURANCE COMPANY
By: XXXXXXX X. XXXXX
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Title: Asst. Vice President
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TENANT:
MONARCH DENTAL ASSOCIATED, L.P.
By: /s/ XXXXXX X. XXXXXXX, DDS
-------------------------------------------
Title: President
----------------------------------------
12-R
13
EXHIBIT A
[FLOORPLAN]
FLOOR PLAN (LEVEL 3)
14
EXHIBIT "A-1"
BEING a tract of land situated in the Xxxxxx Xxxx Survey, Abstract No.
478 in Dallas County, Texas and also being the Xxxxxxxxxxxx Xxxxxxxx, Xxx 0,
Xxxxx "6", A REPLAT OF METROPOLITAN BUSINESS PARK, SECTION FIVE, an addition to
the City of Farmers Branch as recorded in Volume 84020, Page 5267 of the Deed
Records of Dallas County, Texas and being more particularly described as
follows:
BEGINNING at an iron pin for corner at the intersection of the east
line of Midway Road (a 100 foot right-of-way) with the north line of Spring
Valley Road (a 100 foot right-of-way);
THENCE NORTH, 73.28 feet along the said east line of Midway Road to an
iron pin for corner;
THENCE EAST, 345.00 feet leaving the said east line of Midway Road to
an iron pin for corner;
THENCE SOUTH, 454.00 feet to an iron pin for corner;
THENCE EAST, 240.00 feet to an iron pin for corner on the west line of
Proton Road (a 60 foot right-of-way);
THENCE SOUTH, 219.28 feet along the said west line of Proton Road to an
iron pin for corner at the intersection of the said west line of Proton Road
with the said line of Proton Road with the said north line of Spring Valley
Road;
THENCE WEST, 585.00 feet along the said north line of Spring Valley
Road to the Point of Beginning and containing 6.541 acres (284,909 square feet)
of land.
15
EXHIBIT "B"
LEASEHOLD IMPROVEMENTS
[to be attached when complete]
16
EXHIBIT "C"
RULES AND REGULATIONS
1. Landlord shall provide all locks for doors in each Tenant's
leased premises, at the cost of such Tenant, and no Tenant shall place any
additional lock or locks on any door in its leased area without Landlord's
prior written consent. A reasonable number of keys to the locks on the doors
in each Tenant's leased premises shall be furnished by Landlord to each Tenant,
at the cost of such Tenant, and the Tenants shall not have any duplicate keys
made.
2. Movement in or out of the Building of furniture or office
equipment, or dispatch or receipt by Tenant of any merchandise or materials
which requires use of elevators or stairways, or movement through Building
entrances or lobby shall be restricted to hours designated by Landlord. All
such movement shall be under supervision of Landlord and in the manner agreed
between Tenant and Landlord by prearrangement before performance. Such
prearrangements initiated by Tenant will include determination by Landlord and
be subject to its decision and control of the time, method and routing of
movement, and limitations imposed by safety or other concerns which may
prohibit any article, equipment or any other item from being brought into the
Building. Tenant is to assume all risk as to damage to articles moved and
injury to persons or public engaged or not engaged in such movement, including
equipment, property and personnel of Landlord if damaged or injured as a result
of acts in connection with carrying out this service for Tenant from time of
entering the Land on which the Building stands to completion of work; and
Landlord shall not be liable for acts of any person engaged in, or any damage or
loss to any of said property or persons resulting from any act in connection
with such service performed by Tenant.
3. No signs will be allowed in any form on the exterior of the
Building or on the inside or outside of the windows of the Building and no
signs except in uniform location and uniform styles fixed by Landlord will be
permitted in the public corridors or on corridor doors or entrances to Tenant's
space. All signs will be contracted for by Landlord for Tenant at the rate
fixed by Landlord from time to time, and Tenant will be billed and shall pay
for such service accordingly. Tenant's name shall be displayed on any
directory of the Building.
4. No draperies, shutters, or other window coverings shall be
installed on exterior windows or walls or windows and doors facing public
corridors without Landlord's prior written approval.
5. No portion of the Premises or any other part of Building shall
at any time be used as occupied as sleeping or lodging quarters.
6. Tenant shall not place, install or operate on the Premises in
any part of the Building any engine, stove, or machinery, or conduct mechanical
operations or xxxx thereon or therein, or place or use in or about the Premises
any explosives, gasoline, kerosene, oil, acids, caustics, or any other
inflammable explosive, or hazardous materials without written consent of
Landlord, provided, however, that Tenant may provide a microwave oven in the
Premises for use of its employees.
7. Landlord will not be responsible for lost or stolen personal
property, equipment, money or jewelry from the Premises or public rooms
regardless of whether such loss occurs when the Building and/or the Premises
are locked against entry or not.
8. No birds or animals shall be brought into or kept in or about
the Building.
9. Employees of Landlord shall not receive or carry messages for
or to Tenant or other persons, nor contract with or tender free or paid
services to Tenant or Tenant's agents, employees, or invitees.
10. Landlord will not permit entrance to the Premises by use of
pass keys controlled by Landlord, to any person at any time without written
permission by Tenant, except employees, contractors, or service personnel
directly supervised by Landlord and employees of the United States Postal
Service.
11. None of the entries, passages, doors, elevator doors, hallways,
or stairways shall be blocked or obstructed, or any rubbish, litter, trash, or
material of any nature placed, emptied or thrown into these areas, nor shall
such areas be used at any time except for ingress by Tenant, Tenant's agents,
employees, or invitees.
12. Tenant and its employees, agents and invitees shall observe and
comply with the driving and parking signs and markers on the Premises
surrounding the Building. Landlord shall not be responsible for any damage to
any vehicle towed because of non-compliance with parking regulations.
13. Landlord shall have the right to prescribe the weight and
position of safes, computers and other heavy equipment which shall, in all
cases, in order to distribute their weight, stand on supporting devices
approved by Landlord.
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14. To insure orderly operation of the Building no ice, mineral
water or other beverages, food, towels, newspapers, etc., shall be delivered to
the Premises except by persons and at times approved by Landlord in writing.
15. Should a Tenant require telegraphic, telephonic, annunciator or
other communication service, Landlord will direct an electrician where and how
wires are to be introduced and placed and none shall be introduced or placed
except as Landlord shall direct. Electrical current shall not be used for power
or heating without Landlord's written permission.
16. Without Landlord's prior approval, Tenant shall not install any
radio or television antenna, loudspeaker, music system or other device on the
roof or exterior walls of the Building or on common walls with adjacent tenants.
17. No hand trucks or other vehicles of any kind shall be used in
or brought into the Building on the Premises by Tenant or others unless such
vehicle shall have been inspected and approved in writing by the Landlord.
18. Tenant shall store all its trash and garbage within its
Premises. No material shall be placed in the trash boxes or receptacles if such
material is of such nature that it may not be disposed of in the customary
manner of removing and disposing of trash and garbage and without being in
violation or any law or ordinance governing such disposal. All garbage and
refuse disposal shall be made only through entryways and elevators provided for
such purposes and at such times as Landlord shall designate.
19. These Rules and Regulations are in addition to, and shall not
be construed to in any way, modify, alter or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease covering premises in
the Building.
20. Landlord reserves the right to make such other reasonable rules
and regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building, and for the preservation of good
order therein.
21. Corridor doors, when not is use, shall be kept closed.
22. Tenant shall not employ any person or persons other than the
janitor of Landlord for the purpose of cleaning the premises unless otherwise
agreed to by Landlord. Except with the written consent of Landlord no person or
persons other than approved by Landlord shall be permitted to enter the
Building for the purpose of cleaning the same. Tenant shall not cause any
unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness. Landlord shall not be responsible
to any Tenant for any loss of Property on the premises, however occurring, or
for any damage done to the effects of any Tenant by the janitor or any employee
or any other person. Janitor service shall include ordinary dusting and
cleaning by the janitor assigned to such work and shall not include beating of
carpets or rugs or moving of furniture. Service will not be furnished to areas
which are occupied after 9:30 p.m. Window cleaning shall be done only by
Landlord, and only between 6:00 a.m. and 5:00 p.m.
23. Tenants shall not make or permit any improper, objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other Tenants or persons having business with them.
24. No vending machine or machines of any description shall be
installed, maintained or operated upon the Premises without the written consent
of the Landlord.
25. On Saturdays, Sundays, and legal holidays, and on other days
between the hours of 6:00 p.m. and 8:00 a.m., the following day, access to the
Building, or to the halls, corridors, elevators or stairways in the Building,
or to the Premises may be refused unless the person seeking access is known to
the person or employee of the Building charge and has a pass or is properly
identified. The Landlord shall in no case be liable for damages for any error
with regard to the admission to or exclusion from the Building of any person.
Landlord further, in case of invasion, mob, riot, public excitement, or other
commotion, reserves the right to prevent access to the Building during the
continuance of the same by closing doors or otherwise, for the safety of the
Tenants and protection of the property in the Building and the Building.
Landlord further reserves the right to close and keep locked all entrances and
exit doors of the Building on Saturdays, Sundays and legal holidays and on
other days between the hours of 6:00 p.m. and 8:00 a.m. of the following day,
and during such further hours as Landlord may deem advisable for the adequate
protection of said Building and the property of its Tenants.
26. Tenant expressly acknowledges that smoking is prohibited in the
Premises and the Common Areas of the Building. Tenant shall advise its
employees and guests of this rule, and Tenant shall be responsible for the
compliance with said rule by its employees, servants, agents, visitors, and
invitees.
