EXHIBIT 10.33
BASIC LEASE INFORMATION
Lease Date: April 23, 1997
Tenant: Jayhawk Acceptance Corporation.
a Nevada corporation
Xxxxxx's Address: 0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Contact: Xx. Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Landlord: Equitable-Crow Tower 2001, Ltd.,
a Texas limited partnership
Landlord's Address: 0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx
Contact: Mr. Xxxx Xxxxxx
Telephone: (000) 000-0000
Premises: Suite No. 600 in the office building (the "Building")
located or to be located on the land described on Exhibit
D (the "Land"). The Premises are outlined on the plan
attached to the Lease as Exhibit A.
Term: Twenty four (24) months, commencing July 1, 1997 (the
"Commencement Date") and ending at 5:00 p.m. June 30,
1999, subject to adjustment and earlier termination as
provided in the Lease.
Basic Rental: For months 1 through 12:
$23,210.25 per month, which is based on an annual Basic
Rental of $10.50 per rentable square foot.
For months 13 through 24:
$25,420.75 per month, which is based on an annual Basic
Rental of $11.50 per rentable square foot.
Security Deposit: $25,420.75
Rent: Basic Rental, Xxxxxx's Proportionate Share of Electrical
Costs, Xxxxxx's share of Excess, and all other sums that
Tenant may owe to Landlord under the Lease.
Permitted-Use: General office purposes consistent with comparable first
class office buildings in the central business district of
Dallas, Texas.
Tenant's 2.4926%, which is the percentage obtained by dividing (a)
Proportionate the 26,526 rental square feet in the Premises by (b) the
Share: 1,064,210 rentable square feet in the Building.
Expense Stop: 1996 base year.
Initial Liability
Insurance Amount: $5,000,000.
The foregoing Basic Lease Information is incorporated into and made a part of
the Lease identified above. If any conflict exists between any Basic Lease
Information and the Lease, then the Lease shall control.
LANDLORD:
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EQUITABLE- CROW TOWER 2001, LTD.,
a Texas limited partnership
By: EQ/GP Southwest, Ltd.,
a Texas limited partnership
By: GP/EQ Southwest, Inc.
a Texas corporation,
its sole general partner
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
---------------------
Title: Investment Officer
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TENANT:
-------
JAYHAWK ACCEPTANCE CORPORATION
a Texas corporation
By: /s/ X. Xxxx Xxxxxxx
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Name: X. Xxxx Xxxxxxx
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Title: Senior Vice President
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TABLE OF CONTENTS
DEFINITIONS AND BASIC PROVISIONS...................................... 4
LEASE GRANT........................................................... 4
TERM.................................................................. 4
RENT.................................................................. 4
a. Payment...................................................... 4
b. Intentionally Deleted........................................ 4
c. Electrical Costs............................................. 6
d. Annual Cost Statement........................................ 6
e. Adjustments to Electrical Costs.............................. 6
DELINQUENT PAYMENT; HANDLING CHARGES.................................. 6
SECURITY DEPOSIT...................................................... 6
LANDLORD'S OBLIGATIONS................................................ 7
a. Services..................................................... 7
b. Excess Utility Use........................................... 7
c. Discontinuance............................................... 8
d. Restoration of Services; Abatement........................... 8
IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE....................... 8
a. Improvements; Alterations.................................... 8
b. Repairs; maintenance......................................... 9
c. Performance of Work.......................................... 9
d. Mechanic's Liens............................................. 9
USE................................................................... 9
ASSIGNMENT AND SUBLETTING............................................. 10
a. Transfer; Consent........................................... 10
b. Cancellation................................................. 10
c. Additional Compensation...................................... 11
INSURANCE; XXXXXXX; SUBROGATION; INDEMNITY............................ 11
a. Insurance.................................................... 11
b. Waiver of Negligence Claims, No Subrogation.................. 11
c. Indemnity.................................................... 11
SUBORDINATION ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE.............. 12
a. Subordination................................................ 12
b. Attornment................................................... 12
c. Notice to Landlord's Mortgagee............................... 12
RULES AND REGULATIONS................................................. 12
CONDEMNATION.......................................................... 12
a. Taking - Landlord's and Tenant's Rights...................... 12
b. Taking - Landlord's Rights................................... 13
c. Award........................................................ 13
FIRE OR OTHER CASUALTY................................................ 13
a. Repair Estimate.............................................. 13
b. Landlord's and Tenant's Rights............................... 13
c. Landlord's Rights............................................ 13
d. Repair Obligation............................................ 14
TAXES................................................................. 14
EVENTS OF DEFAULT..................................................... 14
REMEDIES.............................................................. 14
PAYMENT BY TENANT; NON-WAIVER......................................... 15
a. Payment by Tenant............................................ 15
b. No Waiver.................................................... 15
LANDLORD'S LIEN....................................................... 16
SURRENDER OF PREMISES................................................. 16
HOLDING OVER.......................................................... 16
CERTAIN RIGHTS RESERVED BY LANDLORD................................... 17
SUBSTITUTION SPACE.................................................... 17
MISCELLANEOUS......................................................... 18
a. Landlord Transfer............................................ 18
b. Landlord's Liability......................................... 18
c. Force Majeure................................................ 19
d. Brokerage.................................................... 19
e. Estoppel Certificates........................................ 19
f. Notices...................................................... 19
g. Separability................................................. 19
h. Amendments and Binding Effect................................ 19
i. Quiet Enjoyment.............................................. 20
j. Joint and Several Liability.................................. 20
k. Captions..................................................... 20
l. No Merger.................................................... 20
m. No Offer..................................................... 20
n. Tax Protest.................................................. 20
o. Exhibits..................................................... 21
p. Entire Agreement............................................. 21
LEASE
THIS LEASE AGREEMENT (this "Lease") is entered into as
of April 23, 1997, between EQUITABLE-CROW TOWER 200 1,
LTD., a Texas limited partnership ("Landlord"), and
JAYHAWK ACCEPTANCE CORPORATION ("Tenant"),
DEFINITIONS AND
BASIC PROVISIONS 1. The definitions and basic provisions set
forth in the Basic Lease Information (the "Basic Lease
Information") executed by Xxxxxxxx and Tenant
contemporaneously herewith are incorporated herein by
reference for all purposes.
LEASE GRANT 2. Subject to the terms of this Lease, Landlord
leases to Tenant, and Tenant leases from Landlord, the
Premises.
TERM 3. If the Commencement Date is not the first
day of a calendar month, then the Term shall be
extended by the time between the Commencement Date and
the first day of the next month. If this Lease is
executed before the Premises become vacant or
otherwise available and ready for occupancy by Tenant,
or if any present occupant of the Premises holds over
and Landlord cannot acquire possession of the Premises
before the Commencement Date, then (a) Tenant's
obligation to pay Rent hereunder shall be waived until
Landlord tenders possession of the Premises to Tenant,
(b) the Term shall be extended by the time between the
scheduled Commencement Date and the date on which
Landlord tenders possession of the Premises to Tenant
(which date will then be defined as the Commencement
Date), (c) Landlord shall not be in default hereunder
or be liable for damages therefor, and (d) Tenant
shall accept possession of the Premises when Landlord
tenders possession thereof to Tenant. By occupying the
Premises, Tenant shall be deemed to have accepted the
Premises in their condition as of the date of such
occupancy, subject to the performance of punch-list
items that remain to be performed by Xxxxxxxx, if any.
Tenant shall execute and deliver to Landlord, within
ten days after Landlord has requested same, a letter
confirming (i) the Commencement Date, (ii) that Xxxxxx
has accepted the Premises, and (iii) that Landlord has
performed all of its obligations with respect to the
Premises (except for punch-list items specified in
such letter).
RENT 4. a. Payment. Tenant shall timely pay to
Landlord the Basic Rental and all additional sums to
be paid by Tenant to Landlord under this Lease,
including the amounts set forth in Exhibit C, without
deduction or set off, at Landlord's Address (or such
other address as Landlord may from time to time
designate in writing to Tenant). Basic Rental,
adjusted as herein provided, shall be payable monthly
in advance. The first monthly installment of Basic
Rental shall be payable contemporaneously with the
execution of this Lease; thereafter, monthly
installments of Basic Rental shall be due on the first
day of the second full calendar month of the Term and
continuing on the first day of each succeeding
calendar month during the Ten-n. Basic Rental for any
fractional month at the beginning of the Term shall be
prorated based on 1/365 of the current annual Basic
Rental for each day of the partial month this Lease is
in effect, and shall be due on the Commencement Date.
b. [Intentionally Deleted.]
[INTENTIONALLY LEFT BLANK]
6
c. Electrical Costs. Tenant shall pay to
Landlord an amount equal to the product of (i) the
cost of all electricity used by the Building
("Electrical Costs"), multiplied by (ii) Tenant's
Proportionate Share. Such amount shall be payable
monthly based on Landlord's estimate of the amount due
for each month, and shall be due on the Commencement
Date and on the first day of each calendar month
thereafter unless Landlord has theretofore furnished
Tenant with information indicating the amount due, in
which event such amount shall be due within ten days
after Landlord has delivered to Tenant an invoice
therefor.
d. Annual Cost Statement. By April 1 of
each calendar year, or as soon thereafter as
practicable, Landlord shall furnish to Tenant a
statement of Landlord's actual Electrical Costs (the
"Annual Cost Statement") for the previous year
adjusted as provided in Section 4.e. If the Annual
Cost Statement reveals that Xxxxxx paid more for
Electrical Costs than Tenant's Proportionate Share of
Electrical Costs in the year for which such statement
was prepared, then Landlord shall promptly reimburse
or credit Tenant such excess; likewise, if Tenant paid
less than Tenant's Proportionate Share of Electrical
Costs, then Tenant shall promptly pay Landlord such
deficiency.
e. Adjustments to Electrical Costs. With
respect to any calendar year or partial calendar year
in which the Building is not occupied to the extent of
95% of the rentable area thereof, the Electrical Costs
for such period shall, for the purposes hereof, be
increased to the amount which would have been incurred
had the Building been occupied to the extent of 95% of
the rentable area thereof.
DELINQUENT
PAYMENT;
HANDLING CHARGES 5. All payments required of Tenant hereunder
shall bear interest until paid at the maximum lawful
rate. Alternatively, Landlord ant a fee equal to 10%
of the delinquent payment to reimburse cost and
inconvenience incurred as a consequence of Tenant's no
event, however, shall the charges permitted under this
Section or elsewhere in this Lease, to the extent the
same are considered to be interest under applicable
law, exceed the maximum lawful rate of interest.
SECURITY DEPOSIT 6. Contemporaneously with the execution of
this Lease, Tenant shall pay to Landlord, in
immediately available funds, the Security Deposit,
which shall be held by Landlord without liability for
interest and as security for the performance by Tenant
of its obligations under this Lease. The Security
Deposit is not an advance payment of Rent or a measure
or limit of Landlord's damages upon an Event of
Default (defined below). Landlord may, from time to
time and without prejudice to any other remedy, use
all or a part of the Security Deposit to perform any
obligation which Xxxxxx was obligated, but failed, to
perform hereunder. Following any such application of
the Security Deposit, Tenant shall pay to Landlord on
demand the amount so applied in order to restore the
Security Deposit to its original amount. Within a
reasonable time after the Term ends, provided Xxxxxx
has performed all of its obligations hereunder,
Landlord shall return to Tenant the balance of the
Security Deposit not applied to satisfy Tenant's
obligations. If Landlord transfers its interest in the
Premises, then Landlord may assign the Security
Deposit to the transferee and Landlord thereafter
shall have no further liability for the return of the
Security Deposit.
LANDLORD'S
OBLIGATIONS 7. a. Services. Provided no Event of Default
exists, Landlord shall use all reasonable efforts to
furnish to Tenant (i) water (hot and cold) at those
points of supply provided for general use of tenants
of the Building; (ii) heated and refrigerated air
conditioning as appropriate, at such times as Landlord
normally furnishes these services to all tenants of
the Building, and at such temperatures and in such
amounts as are reasonably considered by Landlord to be
standard; (iii) janitorial service to the Premises on
weekdays other than holidays for Building-standard
installations (Landlord reserves the right to bill
Tenant separately for extra janitorial service
required for nonstandard installations) and such
window washing as may from time to time in Landlord's
judgment be reasonably required; (iv) elevators for
ingress and egress to the floor on which the Premises'
are located, in common with other tenants, provided
that Landlord may reasonably limit the number of
elevators to be in operation at times other than
during customary business hours and on holidays; (v)
replacement of Building-standard light bulbs and
fluorescent tubes, provided that Landlord's standard
charge for such bulbs and tubes shall be paid by
Tenant; and (vi) electrical current during normal
business hours other than for special lighting,
equipment that requires more than 110 volts, or other
equipment whose electrical energy consumption exceeds
normal office usage. Landlord shall maintain the
common areas of the Building in reasonably good order
and condition, except for damage occasioned by Tenant,
or its employees, agents or invitees. If Tenant
desires any of the services specified in this Section
7.a at any time other than times herein designated,
such services shall be supplied to Tenant upon the
written request of Tenant delivered to Landlord before
3:00 p.m. on the business day preceding such extra
usage, and Tenant shall pay to Landlord the cost of
such services within ten days after Landlord has
delivered to Tenant an invoice therefor.
b. Excess Utility Use. Landlord shall use
reasonable efforts to furnish electrical current for
computers, electronic data processing equipment,
special lighting, equipment that requires more than I
IO volts, or other equipment whose electrical energy
consumption exceeds normal office usage through the
then existing feeders and risers serving the Building
and the Premises, and Tenant shall pay to Landlord the
cost of such service within ten days after Landlord
has delivered to Tenant an invoice therefor. Landlord
may determine the amount of such additional
consumption and potential consumption, by either or
both: (i) a survey of standard or average tenant usage
of electricity in the Building performed by a
reputable consultant selected by Xxxxxxxx and paid for
by Tenant; or (ii) a separate meter in the Premises
installed, maintained, and read by Xxxxxxxx, at
Xxxxxx's expense. Tenant shall not install any
electrical equipment requiring special wiring or
requiring voltage in excess of I 10 volts or otherwise
exceeding Building capacity unless approved in advance
by Landlord. The use of electricity in the Premises
shall not exceed the capacity of existing feeders and
risers to or wiring in the Premises. Any risers or
wiring required to meet Tenant's excess electrical
requirements shall, upon Xxxxxx's written request, be
installed by Landlord, at Tenant's cost, if, in
Landlord's sole and absolute judgment, the same are
necessary and shall not cause permanent damage or
injury to the Building or the Premises, cause or
create a dangerous or hazardous condition, entail
excessive or unreasonable alterations, repairs, or
expenses, or interfere with or disturb other tenants
of the Building. If Tenant uses machines or equipment
(other than general office machines, excluding
computers and electronic data processing equipment) in
the Premises which affect the temperature otherwise
maintained by the air conditioning system or otherwise
overload any utility, Landlord may install
supplemental air conditioning units or other
supplemental equipment in the Premises, and the cost
thereof, including the cost of installation,
operation, use, and maintenance, shall be paid by
Tenant to Landlord within ten days after Landlord has
delivered to Tenant an invoice therefor.
c. Discontinuance. Landlord's obligation
to furnish services under Section 7.a. shall be
subject to the rules and regulations of the supplier
of such services and governmental rules and
regulations. Landlord may, upon not less than 30
days', prior written notice to tenant, discontinue any
such service to the Premises, provided Landlord first
arranges for a direct connection thereof through the
supplier of such service. Tenant shall, however, be
responsible for contracting with the supplier of such
service and for paying all deposits for, and s
relating to, such service.
d. Restoration of Services; Abatement.
Landlord shall use reasonable efforts to restore any
service that becomes unavailable; however, such
unavailability shall not render Landlord liable for
any damages caused thereby, be a constructive eviction
of Tenant, constitute a breach of any implied
warranty, or, except as provided in the next sentence,
entitle Tenant to any abatement of Xxxxxx's
obligations hereunder. However, if Tenant is prevented
from making reasonable use of the Premises for more
than 45 consecutive days because of the unavailability
of any such service, Tenant shall, as its exclusive
remedy therefor, be entitled to a reasonable abatement
of Rent for each consecutive day (after such 45-day
period) that Tenant is so prevented from making
reasonable use of the Premises.
IMPROVEMENTS;
ALTERATIONS; REPAIRS;
MAINTENANCE 8. a. Improvements; Alterations. Improvements
to the Premises shall be installed at the expense of
Tenant only in accordance with plans and
specifications which have been previously submitted to
and approved in writing by Landlord. After the initial
Tenant improvements are made, no alterations or
physical additions in or to the Premises may be made
without Xxxxxxxx's prior written consent. Tenant shall
not paint or install lighting or decorations, signs,
window or door lettering, or advertising media of any
type on or about the Premises without the prior
written consent of Landlord. All alterations,
additions, or improvements (whether temporary or
permanent in character, and including without
limitation all air-conditioning equipment and all
other equipment that is in any manner connected to the
Building's plumbing system) made in or upon the
Premises, either by Landlord or Tenant, shall be
Landlord's property at the end of the Tenn and shall
remain on the Premises without compensation to Tenant.
Approval by Landlord of any of Tenant's drawings and
plans and specifications prepared in connection with
any improvements in the Premises shall not constitute
a representation or warranty of Landlord as to the
adequacy or sufficiency of such drawings, plans and
specifications, or the improvements to which they
relate, for any use, purpose, or condition, but such
approval shall merely be the consent of Landlord as
required hereunder. Notwithstanding anything in this
Lease to the contrary, Tenant shall be responsible for
the cost of all work required to comply with the
retrofit requirements of the Americans with
Disabilities Act of 1990, and all rules, regulations,
and guidelines promulgated thereunder, as the same may
be amended from time to time, necessitated by any
installations, additions, or alterations made in or to
the premises at the request of or by Tenant or by
Xxxxxx's use of the Premises (other than retrofit work
whose cost has been particularly identified as being
payable by Landlord in an instrument signed by
Landlord and Tenant), regardless of whether such cost
is incurred in connection with retrofit work required
in the Premises (including the Work described in
Exhibit D) or in other areas of the Building.
b. Repairs; maintenance. Tenants shall
maintain the Premises in a clean, safe, operable,
attractive condition, any waste or damage to any
portion of the replace, subject to Landlord's
direction and shall not permit or allow to remain any
waste or damage to any portion of the Premises. Tenant
shall repair or replace, subject to Landlord's
direction and supervision, any damage to the Building
caused by Tenant or Tenant's agents, contractors, or
invitees. If tenant fails to make such repairs or
replacements within 15 days after the occurrence of
such damage, then Landlord may make the same at
Tenant's cost. In lieu of having Tenant repair any
such damage outside of the Premises, Landlord may
repair such damage at Tenant's cost. The cost of any
repair or replacement work performed by Landlord under
this Section 8 shall be paid by Tenant to Landlord
within ten days after Landlord delivered to Tenant an
invoice therefor.
c. Performance of Work. All work described
in this Section 8 shall be performed only by Landlord
or by contractors and subcontractors approved in
writing by Landlord. Tenant shall cause all
contractors and subcontractors to procure and maintain
insurance coverage against such risks, in such
amounts, and with such companies as Landlord may
reasonably require, and to procure payment and
performance bonds reasonably satisfactory to Landlord
covering the cost of the work. All such work shall be
performed in accordance with all legal requirements
and in a good and workmanlike manner so as not to
damage the Premises, the primary structure or
structural qualities of the Building, or plumbing,
electrical lines, or other utility transmission
facility. All such work which may affect the HVAC,
electrical system, or plumbing must be approved by the
Building's engineer of record.
d. Mechanic's Liens. Tenant shall not
permit any mechanic's liens to be filed against the
Premises or the Building for any work performed,
materials furnished, or obligation incurred by or at
the request of Tenant. if such a lien is filed, then
Tenant shall, within ten days after Xxxxxxxx has
delivered notice of the filing to Tenant, either pay
the amount of the lien or diligently contest such lien
and deliver to Landlord a bond or other security
reasonably satisfactory to Landlord. If Tenant fails
to timely take either such action, then Landlord may
pay the lien claim without inquiry as to the validity
thereof, and any amounts so paid, including expenses
and interest, shall be paid by Tenant to Landlord
within ten days after Xxxxxxxx has delivered to Tenant
an invoice therefor.
USE 9. Tenant shall continuously occupy and use
the Premises only for the Permitted Use and shall
comply with all laws, orders, rules, and regulations
relating to the use, condition, and occupancy of the
Premises. The Premises shall not be used for any use
which is disreputable or creates extraordinary fire
hazards or results in an increased rate of insurance
on the Building or its contents or the storage of any
hazardous materials or substances. If, because of
Tenant's acts, the rate of insurance on the Building
or its contents increases, then such acts shall be an
Event of Default, Tenant shall pay to Landlord the
amount of such increase on demand, and acceptance of
such
payment shall not constitute a waiver of any of
Landlord's other rights. Tenant shall conduct its
business and control its agents, employees, and
invitees in such a manner as not to create any
nuisance or interfere with other tenants or Landlord
in its management of the Building.
ASSIGNMENT AND
SUBLETTING 10. a. Transfer; Consent. Tenant, shall not,
without the prior written consent of Landlord (which
Landlord may grant or deny in its sole discretion),
(i) advertise that any portion of the Premises is
available for lease, (ii) assign, transfer, or
encumber this Lease or any estate or interest herein,
whether directly or by operation of law, (iii) permit
any other entity to become Tenant hereunder by merger,
consolidation, or other reorganization, (iv) if Tenant
is an entity other than a corporation whose stock is
publicly traded, permit the transfer of an ownership
interest in Tenant so as to result in a change in the
current control of Tenant, (v) sublet any portion of
the Premises, (vi) grant any license, concession, or
other right of occupancy of any portion of the
Premises, or (vii) permit the use of the Premises by
any parties other than Tenant (any of the events
listed in clauses (ii) through (vii) being a
"Transfer"). If Tenant requests Xxxxxxxx's consent to
a Transfer, then Tenant shall provide Landlord with a
written description of all terms and conditions of the
proposed Transfer, copies of the proposed
documentation, and the following information about the
proposed transferee: name and address; reasonably
satisfactory information about its business and
business history; its proposed use of the Premises;
banking, financial, and other credit information; and
general references sufficient to enable Landlord to
determine the proposed transferee's creditworthiness
and character. Tenant shall reimburse Landlord for its
attorneys' fees and other expenses incurred in
connection with considering any request for its
consent to a Transfer. If Landlord consents to a
proposed Transfer, then the proposed transferee shall
deliver to Landlord a written agreement whereby it
expressly assumes the Tenant's obligations hereunder;
however, any transferee of less than all of the space
in the Premises shall be liable only for obligations
under this Lease that are properly allocable to the
space subject to the Transfer, and only to the extent
of the rent it has agreed to pay Tenant therefor.
Xxxxxxxx's consent to a Transfer shall not release
Tenant from performing its obligations under this
Lease, but rather Tenant and its transferee shall be
jointly and severally liable therefor. Xxxxxxxx's
consent to any Transfer shall not waive Landlord's
rights as to any subsequent Transfers. If an Event of
Default occurs while the Premises or any part thereof
are subject to a Transfer, then Landlord, in addition
to its other remedies, may collect directly from such
transferee all rents becoming due to Tenant and apply
such rents against Rent. Tenant authorizes its
transferees to make payments of rent directly to
Landlord upon receipt of notice from Landlord to do
so.
b. Cancellation. Landlord may, within 30
days after submission of Xxxxxx's written request for
Xxxxxxxx's consent to a Transfer, cancel this Lease
(or, as to a subletting or assignment, cancel as to
the portion of the Premises proposed to be sublet or
assigned) as of the date the proposed Transfer was to
be effective. If Landlord cancels this Lease as to any
portion of the Premises, then this Lease shall cease
for such portion of the Premises and Tenant shall pay
to Landlord all Rent accrued through the cancellation
date relating to the portion of the Premises covered
by the proposed Transfer and all brokerage commissions
paid or payable by Landlord in connection with this
Lease that are allocable to such portion of the
Premises. Thereafter, Landlord may lease such portion
of the Premises to the prospective transferee (or to
any other person) without liability to Tenant.
c. Additional Compensation. Tenant shall
pay to Landlord, immediately upon receipt thereof, all
compensation received by Tenant for a Transfer that
exceeds the Basic Rental and Tenant's share of
Electrical Costs and Excess allocable to the portion
of the Premises covered thereby.
INSURANCE; XXXXXXX;
SUBROGATION; INDEMNITY 11. a. Insurance. Tenant shall at its expense
procure and maintain throughout the Term the following
insurance policies: (i) comprehensive general
liability insurance in amounts of not less than a
combined single limit of $5,000,000 (the "Initial
Liability Insurance Amount") or such other amounts as
Landlord may from time to time reasonably require,
insuring Tenant, Landlord, and Landlord's agents
against all liability for injury to or death of a
person or persons or damage to property arising from
the use and occupancy of the Premises, (ii)
contractual liability insurance coverage sufficient to
cover Tenant's indemnity obligations hereunder, (iii)
insurance covering the full value of Tenant's property
and improvements, and other property (including.
property of others), in the Premises, (iv) xxxxxxx'x
compensation insurance, containing a waiver of
subrogation endorsement reasonably acceptable to
Landlord, and (v) business interruption insurance.
Tenant's insurance shall provide primary coverage to
Landlord when any policy issued to Landlord provides
duplicate or similar coverage, and in such
circumstance Landlord's policy will be excess over
Tenant's policy. Tenant shall furnish certificates of
such insurance and such other evidence satisfactory to
Landlord of the maintenance of all insurance coverages
required hereunder, and Tenant shall obtain a written
obligation on the part of each insurance company to
notify Landlord at least 30 days before cancellation
or a material change of any such insurance. All such
insurance policies shall be in form, and issued by
companies, reasonably satisfactory to Landlord.
b. Waiver of Negligence Claims, No
Subrogation. Landlord shall not be liable to Tenant or
those claiming by, through, or under Tenant for any
injury to or death of any person or persons or the
damage to or theft, destruction, loss, or loss of use
of any property or inconvenience (a "Loss") caused by
casualty, theft, fire, third parties, or any other
matter (including Losses arising through repair or
alteration of any part of the Building, or failure to
make repairs, or from any other cause), regardless of
whether the negligence of any party caused such Loss
in whole or in part. Landlord and Tenant each waives
any claim it might have against the other for any
damage to or theft, destruction, loss, or loss of use
of any property, to the extent the same is insured
against insurance policy that covers the Building, the
Premises, Landlord's or Tenant's fixtures, personal
property, leasehold improvements, or business, or, in
Tenant's waiver, is required to be insured against
under the terms hereof regardless of whether the
negligence or fault of the other party caused such
loss; however, Landlord's waiver shall not include any
deductible amounts on insurance policies carried by
Landlord or apply to any coinsurance penalty which
Landlord might sustain. Each party shall cause its
insurance carrier to endorse all applicable policies
waiving the carrier's rights of recovery under
subrogation or otherwise against the other party.
c. Indemnity. Subject to Section 11.b,
Xxxxxx shall defend, indemnify, and hold harmless
Landlord and its agents from and against all claims,
demands, liabilities, causes of action, suits,
judgments, and expenses (including attorneys' fees)
for any Loss arising from any occurrence on the
Premises or from Tenant's failure to perform its
obligations under this Lease (other than a Loss
arising from the sole or gross negligence of Landlord
or its
agents), even though caused or alleged to be caused by
the joint, comparative, or concurrent negligence or
fault of Landlord or its agents, and even though any
such claim, cause of action, or suit is based upon or
alleged to be based upon the strict liability of
Landlord or its agents. This indemnity provision is
intended to indemnify Landlord and its agents against
the consequences of their own negligence or fault as
provided above when Landlord or its agents are
jointly, comparatively, or concurrently negligent with
Tenant. This indemnity provision shall survive
termination or expiration of this Lease.
SUBORDINATION
ATTORNMENT; NOTICE TO
LANDLORD'S MORTGAGEE 12. a. Subordination. This Lease shall be
subordinate to any deed of trust, mortgage, or other
security instrument (a "Mortgage"), or any ground
lease, master lease, or primary lease (a "Primary
Lease"), that now or hereafter covers all or any part
of the Premises (the mortgagee under any Mortgage or
the lessor under any Primary Lease is referred to
herein as "Landlord's Mortgagee").
b. Attornment. Tenant shall attorn to any
party succeeding to Landlord's interest in the
Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of
lease, or otherwise, upon such party's request, and
shall execute such agreements confirming such
attornment as such party may reasonably request.
c. Notice to Landlord's Mortgagee. Tenant
shall not seek to enforce any remedy it may have for
any default on the part of the Landlord without first
giving written notice by certified mail, return
receipt requested, specifying the default in
reasonable detail, to any Landlord's Mortgagee whose
address has been given to Tenant, and affording such
Landlord's Mortgagee a reasonable opportunity to
perform Landlord's obligations hereunder.
RULES AND
REGULATIONS 13. Tenant shall comply with the rules and
regulations of the Building which are attached hereto
as Exhibit B. Landlord may, from time to time, change
such rules and regulations for the safety, car: , or
cleanliness of the Building and related facilities,
provided that such changes are applicable to all
tenants of the Building and will not unreasonably
interfere with Xxxxxx's use of the Premises. Tenant
shall be responsible for the compliance with such
rules and regulations by its employees, agents, and
invitees.
CONDEMNATION 14. a. Taking - Landlord's and Tenant's
Rights. If any part of the Building is taken by right
of eminent domain or conveyed in lieu thereof (a
"Taking"), and such Taking prevents Tenant from
conducting its business in the Premises in a manner
reasonably comparable to that conducted immediately
before such Taking, then Landlord may, at its expense,
relocate Tenant to office space reasonably comparable
to the Premises, provided that Landlord notifies
Tenant of its intention to do so within 30 days after
the Taking. Such relocation may be for a portion of
the remaining Term or the entire Term. Landlord shall
complete any such relocation within 180 days after
Landlord has notified Tenant of its intention to
relocate Tenant. If Landlord does not elect to
relocate Tenant following such Taking, then Tenant may
terminate this Lease as of the date of such Taking by
giving written notice to Landlord within 60-days after
the Taking, and Rent shall be apportioned as of the
date of such Taking. If Landlord does not relocate
Tenant and Tenant does not terminate this Lease, then
Rent
shall be abated on a reasonable basis as to that
portion of the Premises rendered untenantable by the
Taking.
b. Taking - Landlord's Rights. If any
material portion, but less than all, of the Building
becomes subject to a Taking, or if Landlord is
required to pay any of the proceeds received for a
Taking to Landlord's Mortgagee, then this Lease, at
the option of Landlord, exercised by written notice to
Tenant within 30 days after such Taking, shall
terminate and Rent shall be apportioned as of the date
of such Taking. If Landlord does not so terminate this
Lease and does not elect to relocate Tenant, then this
Lease will continue, but if any portion of the
Premises has been taken, Basic Rental shall xxxxx as
provided in the last sentence of Section 14.a.
c. Award. If any Taking occurs, then
Landlord shall receive the entire award or other
compensation for the Land, the Building, and other
improvements taken, and Xxxxxx may separately pursue a
claim against the condemnor for the value of Tenant's
personal property which Xxxxxx is entitled to remove
under this Lease, moving costs, loss of business, and
other claims it may have.
FIRE OR OTHER
CASUALTY 15. a. Repair Estimate. If the Premises or the
building are damaged by fire or other casualty (a
"Casualty"), Landlord shall, within 60 days after such
Casualty, deliver to Tenant a good faith estimate (the
"Damage Notice") of the time needed to repair the
damage caused by such Casualty.
b. Xxxxxxxx's and Xxxxxx's Rights. If a
material portion of the Premises or the Building is
damaged by Casualty such that Tenant is prevented from
conducting its business in the Premises in a manner
reasonably comparable to that conducted immediately
before such Casualty and Landlord estimates that the
damage caused thereby cannot be repaired within 180
days after the commencement of repair, then Landlord
may, at its expense, relocate Tenant to office space
reasonably comparable to the Premises, provided that
Landlord notifies Tenant of its intention to do so in
the Damage Notice. Such relocation may be for a
portion of the remaining Term or the entire Term.
Landlord shall complete any such relocation within 180
days after Landlord has delivered the Damage Notice to
Tenant. If Landlord does not elect to relocate Tenant
following such Casualty, then Tenant may terminate
this Lease by delivering written notice to Landlord of
its election to terminate within 30 days after the
Damage Notice has been delivered to Tenant. If
Landlord does not relocate Tenant and Tenant does not
terminate this Lease, then (subject to Landlord's
rights under Section 15.c) Landlord shall repair the
Building or the Premises, as the case may be, as
provided below, and Rent for the portion of the
Premises rendered untenantable by the damage shall be
abated on a reasonable basis from the date of damage
until the completion of the repair, unless Tenant
caused such damage, in which case, Tenant shall
continue to pay Rent without abatement.
c. Landlord's Rights. If a Casualty
damages a material portion of the Building, and
Landlord makes a good faith determination that
restoring the Premises would be uneconomical, or if
Landlord is required to pay any insurance proceeds
arising out of the Casualty to Landlord's Mortgagee,
then Landlord may terminate this Lease by giving
written notice of its election to
terminate within 30 days after the Damage notice has
been delivered to Tenant, and Basic Rental hereunder
shall be abated as of the date of the Casualty.
d. Repair Obligation. If neither party
elects to terminate this Lease following a Casualty,
then Landlord shall, within a reasonable time after
such Casualty, commence to repair the Building and the
Premises and shall proceed with reasonable diligence
to restore the Building and Premises to substantially
the same condition as they existed immediately before
such Casualty; however, Landlord shall not be required
to repair or replace any part of the furniture,
equipment, fixtures, and other improvements which may
have been placed by, or at the request of, Tenant or
other occupants in the Building or the Premises, and
Landlord's obligation to repair or restore the
Building or Premises shall be limited to the extent of
the insurance proceeds actually received by Landlord
for the Casualty in question.
TAXES 16. Tenant shall be liable for all taxes
levied or assessed against personal property,
furniture, or fixtures placed by Tenant in the
Premises. If any taxes for which Xxxxxx is liable are
levied or assessed against Landlord or Landlord's
property and Landlord elects to pay the same, or if
the assessed value of Landlord's property is increased
by inclusion of such personal property, furniture or
fixtures and Landlord elects to pay the taxes based on
such increase, then Tenant shall pay to Landlord, upon
demand, that part of such taxes for which Tenant is
primarily liable hereunder.
EVENTS OF DEFAULT 17. Each of the following occurrences shall
constitute an "Event of Default":
a. Tenant's failure to pay Rent, or any
other sums due from Tenant to Landlord under the Lease
(or any other lease executed by Tenant for space in
the Building), when due;
b. Xxxxxx's failure to perform, comply
with, or observe any other agreement or obligation of
Tenant under this Lease (or any other lease executed
by Tenant for space in the Building);
c. The filing of a petition by or against
Tenant (the term "Tenant" shall include, for the
purpose of this Section 17.c, any guarantor of the
Tenant's obligations hereunder) (i) in any bankruptcy
or other insolvency proceeding; (ii) seeking any
relief under any state or federal debtor relief law;
(iii) for the appointment of a liquidator or receiver
for all or substantially all of Tenant's property or
for Tenant's interest in this Lease; or (iv) for the
reorganization or modification of Tenant's capital
structure;
d. Tenant shall desert or vacate any
portion of the Premises; and
e. The admission by Tenant that it cannot
meet its obligations as they become due or the making
by Tenant of an assignment for the benefit of its
creditors.
REMEDIES 18. Upon any Event of Default, Landlord may,
in addition to all other rights and remedies afforded
Landlord hereunder or by law or equity, take any of
the following actions:
a. Terminate this Lease by giving Tenant
written notice thereof, in which event, Tenant shall
pay to Landlord the sum of (i) all Rent accrued
hereunder through the date of termination, (ii) all
amounts due under Section 19.a., and (iii) an amount
equal to (A) the total Rent that Tenant would have
been required to pay for the remainder of the Tenn
discounted to present value at a per annum rate equal
to the "Prime Rate" as published on the date this
Lease is terminated by The Wall Street Journal,
Southwest Edition, in its listing of "Money Rates",
minus (B) the then present fair rental value of the
Premises for such period, similarly discounted; or
b. Terminate Tenant's right to possession
of the Premises without terminating this Lease by
giving written notice thereof to Tenant, in which
event Tenant shall pay to Landlord (i) all Rent and
other amounts accrued hereunder to the date of
termination of possession, (ii) all amounts due from
time to time under Section 19.a., and (iii) all Rent
and other sums required hereunder to be paid by Xxxxxx
during the remainder of the Term, diminished by any
net sums thereafter received by Landlord through
reletting the Premises during such shall use
reasonable efforts to relet the Premises on such terms
in its sole discretion may determine (including a term
different from Term, rental concessions, and
alterations to, and improvement of, the Premises);
however, Landlord shall not be obligated to relet the
Premises before leasing other portions of the
Building. Landlord shall not be liable for, nor shall
Tenant's obligations hereunder be diminished because
of, Xxxxxxxx's failure to relet the Premisses or to
collect rent due for such reletting. Tenant shall not
be entitled to the excess of any consideration
obtained by reletting over the Rent due hereunder.
Reentry by Landlord in the Premises shall not affect
Xxxxxx's obligations hereunder for the unexpired Term;
rather, Landlord may, from time to time, bring action
against Tenant to collect amounts due by Xxxxxx,
without the necessity of Landlord's waiting until the
expiration of the Term. Unless Landlord delivers
written notice to Tenant expressly stating that it has
elected to terminate this Lease, all actions taken by
Landlord to exclude or dispossess Tenant of the
Premises shall be deemed to be taken under this
Section 18.b. If Landlord elects to proceed under this
Section 18.b., it may at any time elect to terminate
this Lease under Section 18.a.
Additionally, without notice, Landlord may alter locks
or other security devices at the Premises to deprive
Tenant of access thereto, and Landlord shall not be
required to provide a new key or right of access to
Tenant.
PAYMENT BY TENANT;
NON-WAIVER 19. a. Payment by Tenant. Upon any Event of
Default, Tenant shall pay to Landlord all costs
incurred by Landlord (including court costs and
reasonable attorney expenses) in (i) obtaining
possession of the Premises, (ii) removing and storing
Tenant's or any other occupant's property, (iii)
repairing, restoring, altering, remodeling, or
otherwise putting the Premises into condition
acceptable to a new tenant, (iv) if Tenant is
dispossessed of the Premises and this Lease is not
terminated, reletting all or any part of the Premises
(including brokerage commissions, cost of tenant
finish work, and other costs incidental to such
reletting), (v) performing Tenant's obligations which
Xxxxxx failed to perform, and (vi) enforcing, or
advising Landlord of, its rights, remedies, and
recourses arising out of the Event of Default.
b. No Waiver. Xxxxxxxx's acceptance of
Rent following an Event of Default shall not waive
Landlord's rights regarding such Event of Default. No
waiver by Landlord of any violation or breach of any
of the terms
contained herein shall waive Landlord's rights
regarding any future violation of such term or
violation of any other term.
LANDLORD'S LIEN 20. In addition to the statutory landlord's lien,
Tenant grants to Landlord, to secure performance of
Xxxxxx's obligations hereunder, a security interest in
all equipment, fixtures, furniture, improvements, and
other personal property of Tenant now or hereafter
situated on the Premises, and all proceeds therefrom
(the "Collateral"), and the Collateral shall not be
removed from the Premises without the consent of
Landlord until all obligations of Tenant have been
fully performed. Upon the occurrence of an Event of
Default, Landlord may, in addition to all other
remedies, without notice or demand except as provided
below, exercise the rights afforded a secured party
under the Uniform Commercial Code of the State in
which the Building is located (the "UCC"). In
connection with any public or private sale under the
UCC, Landlord shall give Tenant five-days' prior
written notice of the time and place of any public
sale of the Collateral or of the time after which any
private sale or other intended disposition thereof is
to be made, which is agreed to be a reasonable notice
of such sale or other disposition. Tenant grants to
Landlord a power of attorney to execute and file any
financing statement or other instrument necessary to
perfect Landlord's security interest under this
Section 20, which power is coupled with an interest
and shall be irrevocable during the Term. Landlord may
also file a copy of this Lease as a financing
statement to perfect its security interest in the
Collateral.
SURRENDER OF
PREMISES 21. No act by Landlord shall be deemed an acceptance
of a surrender of the Premises, and no agreement to
accept a surrender of the Premises shall be valid
unless the same is made in writing and signed by
Landlord. At the expiration or termination of this
Lease, Tenant shall deliver to Landlord the Premises
with all improvements located thereon in good repair
and condition, reasonable wear and tear (and
condemnation and fire or other casualty damage not
caused by Tenant, as to which Sections 14 and 15 shall
control) excepted, and shall deliver to Landlord all
keys to the Premises. Provided that Tenant has
performed all of its obligations hereunder, tenant may
remove all unattached trade fixtures, furniture, and
personal property placed in the Premises by Tenant
(but Tenant shall not remove any such item which was
paid for, in whole or in part, by Landlord).
Additionally, Tenant shall remove such alterations,
additions, improvements, trade fixtures, equipment,
wiring and furniture as Landlord may request. Tenant
shall repair all damage caused by such removal. All
items not so removed shall be deemed to have been
abandoned by Tenant and may be appropriated, sold,
stored, destroyed, or otherwise disposed of by
Landlord without notice to Tenant and without any
obligation to account for such items. The provisions
of this Section 21 shall survive the end of the Term.
HOLDING OVER 22. If Tenant fails to vacate the Premises at the end
of the Term, then Tenant shall be a tenant at will
and, in addition to all other damages and remedies to
which Landlord may be entitled for ouch holding over,
Tenant shall pay, in addition to the other Rent, a
daily Basic Rental equal to the greater of (a) 150% of
the daily Basic Rental payable during the last month
of the Term, or (b) the prevailing rental rate in the
Building for similar space.
CERTAIN RIGHTS
RESERVED BY
LANDLORD 23. Provided that the exercise of such rights
does not unreasonably interfere with Tenants occupancy
of the Premises, Landlord shall have the following
rights:
a. To decorate and to make inspections,
repairs, alterations, additions, changes, or
improvements, whether structural or otherwise, in and
about the Building, or any part thereof, for such
purposes, to enter upon the Premises and, during the
continuance of any such work, to temporarily close
doors, entryways, public space, and corridors in the
Building; to interrupt or Temporarily suspend Building
services and facilities; and to change the arrangement
and location of entrances or passageways, doors, and
doorways, corridors, elevators, stairs, restrooms, or
other public parts of the Building;
b. To take such reasonable measures as
Landlord deems advisable for the security of the
Building and its occupants, including without
limitation searching all persons entering or leaving
the Building; evacuating the Building for cause,
suspected cause, or for drill purposes; temporarily
denying access to the Building; and closing the
Building after normal business hours and on Saturdays,
Sundays, and holidays, subject, however, to Tenant's
right to enter when the Building is closed after
normal business hours under such reasonable
regulations as Landlord may prescribe from time to
time which may include by way of example, but not of
limitation, that persons entering or leaving the
Building, whether or not during normal business hours,
identify themselves to a security officer by
registration or otherwise and that such persons
establish their right to enter or leave the Building;
c. To change the name by which the
Building is designated; and
d. To enter the Premises at all reasonable
hours to show the Premises to prospective purchaser,
lenders, or tenants.
SUBSTITUTION SPACE 24. a. From time to time during the Term,
Landlord may substitute for the Premises other space
that has an area at least equal to that of the
Premises and is located in the Building or in any
other comparable building managed by Landlord or an
affiliate of Landlord (the "Substitution Space").
b. If Landlord exercises such right by
giving Tenant notice thereof ("Substitution Notice")
at least 60 days before the effective date of such
substitution, then (i) the description of the Premises
shall be replaced by the description of the
Substitution Space; and (ii) all of the terms and
conditions of this Lease shall apply to the
Substitution Space except that (A) if the then
unexpired balance of the Term shall be less than one
year, then the Term shall be extended so that the Tenn
shall be one year from the Substitution Effective Date
(defined below), and (B) if the Substitution Space
contains more square footage than the Premises, then
the Basic Rental then in effect shall be increased
proportionately (provided that such increase shall not
exceed 105% of the Basic Rental due for the Premises)
and shall be subject to adjustment as herein provided.
The effective date of such substitution (the
"Substitution Effective Date") shall be the date
specified in the Substitution Notice or, if Landlord
is required to perform tenant finish work to the
Substitution Space under Section
24.c, then the date on which Landlord substantially
completes such tenant finish work. If Landlord is
delayed in performing the tenant finish work by
Xxxxxx's actions (either by Xxxxxx's change in the
plans and specifications for such work or otherwise),
then the Substitution Effective Date shall not be
extended and Tenant shall pay Rent for the
Substitution Space beginning on the date specified in
the Substitution Notice.
c. Tenant may either accept possession of
the Substitution Space in its "as is" condition as of
the Substitution Effective Date or require Landlord to
alter the Substitution Space in the same manner as the
Premises were altered or were to be altered. Tenant
shall deliver to Landlord written notice of its
election within ten days after the Substitution Notice
has been delivered to Tenant. If Tenant fails to
timely deliver notice of its election or if an Event
of Default then exists, then Tenant shall be deemed to
have elected to accept possession of the substitution
Space in its "as is" condition. If Tenant timely
elects to require Landlord to alter the Substitution
Space, then (i) notwithstanding Section 24.b if the
then unexpired balance of the Tenn is less than three
years, then the Term shall be extended so that it
continues for three years from the Substitution
Effective Date, and (ii) Tenant shall continue to
occupy the Premises (upon all of the ten-ns of this
Lease) until the Substitution Effective Date.
d. Tenant shall move from the Premises
into the Substitution Space and shall surrender
possession of the Premises as provided in Section 21
by the Substitution Effective Date. If Tenant occupies
the Premises after the Substitution Effective Date,
then Xxxxxx's occupancy of the Premises shall be a
tenancy at will (and, without limiting all other
rights and remedies available to Landlord, including
instituting a forcible detainer suit), Tenant shall
pay Basic Rental for the Premises as provided in
Section 22 and all other Rent due therefor until such
occupancy ends; such amounts shall be in addition to
the Rent due for the Substitution Space.
e. If Landlord exercises its substitution
right, then Landlord shall reimburse Tenant for
Xxxxxx's reasonable out-of-pocket expenses for moving
Tenant's furniture, equipment, supplies and telephone
equipment from the Premises to the substitution space
and for reprinting Tenant's stationery of the same
quality and quantity of Tenant's stationery supply on
hand immediately prior to Landlord's notice to Tenant
of the exercise of this relocation right. If the
Substitution Space contains more square footage than
the Premises, and if the Premises were carpeted,
Landlord shall supply and install an equal amount of
carpeting of the same or equivalent quality and color.
MISCELLANEOUS 25. a. Landlord Transfer. Landlord may
transfer, in whole or in part, the Building and any of
its rights under this Lease. If Landlord assigns its
rights under this Lease, then Landlord shall thereby
be released from any further obligations hereunder.
b. Landlord's Liability. The liability of
Landlord to Tenant for any default by Landlord under
the terms of this Lease shall be limited to Tenant's
actual direct, but not consequential, damages therefor
and shall be recoverable from the interest of Landlord
in the Building and the Land, and Landlord shall not
be personally liable for any deficiency. This section
shall not be deemed to limit or deny any remedies
which Tenant may have in the event
of default by Landlord hereunder which do not involve
the personal liability OF Landlord.
c. Force Majeure. Other than for Tenant' s
monetary obligations under this Lease and obligations
which can be cured by the payment of money (e.g.,
maintaining insurance), whenever a period of time is
herein prescribed for action to be taken by either
party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the
computation for any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor
or materials, war, governmental laws, regulations, or
restrictions, or any other causes of any kind
whatsoever which are beyond the control of such party.
d. Brokerage. Landlord and Tenant each
warrant to the other that it has not dealt with any
broker or agent, other than Xxxxxxxx Xxxx Dallas/Fort
Worth, Inc., in connection with the negotiation or
execution of this Lease. Tenant and Landlord shall
each indemnify the other against all costs, expenses,
attorneys' fees, and other liability for commissions
or other compensation claimed by a broker or agent
claiming the same by, through, or under the
indemnifying party.
e. Estoppel Certificates. From time to
time, Tenant shall furnish to any party designated by
Landlord, within ten days after Landlord has made a
request therefor, a certificate signed by Tenant
confirming and containing such factual certifications
and representations as to this Lease as Landlord may
reasonably request.
f. Notices. All notices and other
communications given pursuant to this Lease shall be
in writing and shall be (i) mailed by first class,
United States Mail, postage prepaid, certified, with
return receipt requested, and addressed to the parties
hereto at the address specified in the Basic Lease
Information, (ii) hand delivered to the intended
address, or (iii) sent by prepaid telegram, cable,
facsimile transmission, or telex followed by a
confirmatory letter. Notice sent by certified mail,
postage prepaid, shall be effective three business
days after being deposited in the United States Mail;
all other notices shall be effective upon delivery to
the address of the addressee. The parties hereto may
change their addresses by giving notice thereof to the
other in conformity with this provision.
g. Separability. If any clause or
provision of this Lease is illegal, invalid, or
unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby
and in lieu of such clause or provision, there shall
be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible
and be legal, valid, and enforceable.
h. Amendments. and Binding Effect. This
Lease may not be amended except by instrument in
writing signed by Landlord and Xxxxxx. No provision of
this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing signed by
Landlord, and no custom or practice which may evolve
between the parties in the administration of the terms
hereof shall waive or diminish the right of Landlord
to insist upon the performance by Xxxxxx in strict
accordance with the terms hereof. The terms and
conditions contained in this Lease shall 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 herein expressly
provided. This Lease is for the sole benefit of
Landlord and Tenant, and, other than Landlord's
Mortgagee, no third party shall be deemed a third
party beneficiary hereof.
i. Quiet Enjoyment. Provided Tenant has
performed all of the terms and conditions of this
Lease to be performed by Xxxxxx, Tenant shall
peaceably and quietly hold and enjoy the Premises for
the Tenn, without hindrance from Landlord or any party
claiming by, through, or under Landlord, subject to
the terms and conditions of this Lease.
j. Joint and Several Liability. If there
is more than one Tenant, then the obligations
hereunder imposed upon Tenant shall be joint and
several. If there is a guarantor of Tenant's
obligations hereunder, then the obligations hereunder
imposed upon Tenant shall be the joint and several
obligations of Tenant and such guarantor, and Landlord
need not first proceed against Tenant before
proceeding against such guarantor nor shall any such
guarantor be released from its guaranty for any reason
whatsoever.
k. Captions. The captions contained in
this Lease are for convenience of reference only, and
do not limit or enlarge the terms and conditions of
this Lease.
l. No Merger. There shall be no merger of
the leasehold estate hereby created with the fee
estate in the Premises or any part thereof if the same
person acquires or holds, directly or indirectly, this
Lease or any interest in this Lease and the fee estate
in the leasehold Premises or any interest in such fee
estate.
m. No Offer. The submission of this Lease
to Tenant shall not be construed as an offer, nor
shall Tenant have any rights under this Lease unless
Landlord executes a copy of this Lease and delivers it
to Tenant.
n. Tax Protest. Tenant has no right to
protest the real estate tax rate assessed against the
project and/or the appraised value of the Project
determined by any appraisal review board or other
taxing entity with authority to determine tax rates
and/or appraised values (each a "Taxing Authority").
Tenant hereby knowingly, voluntarily and intentionally
waives and releases any right, whether created by law
or otherwise, to (a) file or otherwise protest before
any Taxing Authority any such rate or value
determination even though Landlord may elect not to
file any such protest; (b) receive, or otherwise
require Landlord to deliver, a copy of any reappraisal
notice received by Landlord from any Taxing Authority;
and (c) appeal any order of a Taxing Authority which
determines any such protest. The foregoing waiver and
release covers and includes any and all rights,
remedies and recourse of Tenant, now or at any time
hereafter, under Section 41.413 and Section 42.015 of
the Texas Tax Code (as currently enacted or hereafter
modified) together with any other or further laws,
rules or regulations covering the subject matter
thereof. Xxxxxx acknowledges and agrees that the
foregoing waiver and release was bargained for by
Landlord and Xxxxxxxx would not have agreed to enter
into this Lease in the absence of this waiver and
release. If, notwithstanding any such waiver and
release, Tenant files or otherwise appeals any such
protest, then Tenant will be in default under this
Lease and, in addition to Landlord's other rights and
remedies, Tenant must pay or otherwise reimburse
Landlord for all costs, charges and expense incurred
by, or otherwise asserted against, Landlord as a
result of any tax protest or appeal by Xxxxxx,
including, appraisal costs, tax consultant charges and
attorneys' fees (collectively, the "Tax Protest
Costs"). If, as result of Xxxxxx's tax
protest the Project is increased above that previously
determined by the Taxing Authority (such increase, the
"Value Increase") for the year covered by such tax
protest or appeal (such year, the "Protest Year"),
then Tenant must pay Landlord, in addition to all Tax
Protest Costs, an amount (the "Additional Taxes")
equal to the sum of the following: (i) the product of
the Value Increase multiplied by the tax rate in
effect for the Protest Year; plus (ii) the amount of
additional taxes payable during the five (5) year
period following the Protest Year, such amount to be
calculated based upon the Value Increase multiplied by
the tax rate estimated to be in effect for each year
during such five (5) year period. Tenant must pay all
Additional Taxes - even those in excess of Tenant's
proportionate share and which may relate to years
beyond the term of this Lease. The Additional Taxes
will be conclusively determined by a tax consultant
selected by Landlord, without regard to whether and to
what extent Landlord may be able in years following
the Protest Year to reduce or otherwise eliminate any
Value Increase. All Tax Protest Costs and Additional
Taxes must be paid by Tenant within five (5) days
following written demand by Landlord.
o. Exhibits. All exhibits and attachments
attached hereto are incorporated herein by this
reference.
Exhibit A -- Outline of Premises
Exhibit B -- Building Rules and Regulations
Exhibit C -- Operating Expense Escalator
Exhibit D -- Legal Description
Exhibit E -- Tenant Finish-Work: As-Is
Exhibit F -- Parking
p. Entire Agreement. This Lease
constitutes the entire agreement between Landlord and
Tenant regarding the subject matter hereof and
supersedes all oral statements and prior writings
relating thereto. Except for those set forth in this
Lease, no representations, warranties, or agreements
have been made by Landlord or Tenant to the other with
respect to this Lease or the obligations of Landlord
or Tenant in connection therewith.
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED
WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S
INTENDED COMMERCIAL PURPOSE, AND TENANT'S OBLIGATION
TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE
CONDITION OF THE PREMISES OR THE PERFORMANCE BY
LANDLORD OF ITS OBLIGATIONS, HEREUNDER, AND EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL
CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SET OFF,
DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF
ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS
OR IMPLIED.
DATED as of the date first above written.
LANDLORD:
--------
EQUITABLE- CROW TOWER 200 1, LTD.,
a Texas limited partnership
By: EQ/GP Southwest, Ltd.,
a Texas Limited partnership
By: GP/EQ Southwest, Inc., a Texas corporation
its sole general partner
By: /s/ Xxx X. Xxxxxx
---------------------
Name Xxx X. Xxxxxx
---------------------
Title: Investment Officer
---------------------
TENANT:
------
JAYHAWK ACCEPTANCE CORPORATION
a Texas corporation
By: /s/ X. Xxxx Xxxxxxx
----------------------
Name: X. Xxxx Xxxxxxx
----------------------
Title: Senior Vice President
----------------------
This lease agreement is subject to the entry of an order by the Bankruptcy Court
in Bankruptcy Case No. 397-31261-SAF-11, pending in the U.S. Bankruptcy Court of
the Northern District of Texas, Styled in Re: Jayhawk Acceptance Corporation
confirming the execution and delivery of this lease agreement by Tenant.
EXHIBIT B
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply to the Premises, the Building,
the parking garage associated therewith, the Land and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
other than ingress and egress to and from their respective-leased premises and
for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Damages resulting to any such
fixtures or appliances from misuse by a tenant or its agents, employees or
invitee, shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted or affixed on or
to any windows or doors or other part of the Building without the prior written
consent of Landlord. No nails, hooks or screws shall be driven or inserted in
any part of the Building except by Building maintenance personnel. No curtains
or other window treatments shall be placed between the glass and the Building
standard window treatments.
4. Landlord shall provide and maintain an alphabetical directory for all
tenants in the main lobby of the Building.
5. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof.
6. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material, merchandise or
materials which require use of elevators or stairways, or movement through the
Building entrances or lobby shall be conducted under Xxxxxxxx's supervision at
such times and in such a manner as Landlord may reasonably require. Each tenant
assumes all risks of and shall be liable for all 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 such tenant.
7. Landlord may prescribe weight limitations and determine the locations
for safes and other heavy equipment or items, which shall in all cases be placed
in the Building so as to distribute weight in a manner acceptable to Landlord
which may include the use of such supporting devices as Landlord may require.
All damages to the Building caused by the installation or removal of any
property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
8. Corridor doors, when not in use, shall be kept closed. Nothing shall
be swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals shall be brought into or kept in, on or about any tenant's
leased premises. No portion of any tenant's leased premises shall at any time
be used or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in keeping its leased
premises neat and clean. Tenants shall not employ any person for the purpose of
such cleaning other than the Building's cleaning and maintenance personnel.
10. To ensure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc. shall be delivered to any leased area except by
persons approved by Landlord.
11. Tenant 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.
12. No machinery of any kind (other than normal office equipment) shall be
operated by any tenant on its leased area without Landlord's prior written
consent, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance.
13. Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
14. No vending or dispensing machines of any kind may be maintained in any
leased premises without the prior written permission of Landlord.
15. All mail chutes located in the Building shall be available for use by
Landlord and all tenants of the Building according to the rules of the United
States Postal Service.
EXHIBIT C
OPERATING EXPENSE ESCALATOR
---------------------------
(a) Tenant shall pay an amount (per each rentable square foot in the
Premises) equal to the excess ("Excess") from time to time of actual Basic Cost
per rentable square foot in the Building over the actual Basic Cost per rental
square foot in the Building for the 1996 calendar year (the "Expense Stop").
Landlord may collect such amount in a lump sum, to be due within 30 days after
Landlord furnishes to Tenant the Annual Cost Statement. Alternatively, Landlord
may make a good faith estimate of the Excess to be due by Tenant for any
calendar year or part thereof during the Term, and, unless Landlord delivers to
Tenant a revision of the estimated Excess, Tenant shall pay to Landlord, on the
Commencement Date and on the first day of each calendar month thereafter, an
amount equal to the estimated Excess for such calendar year or part thereof
divided by the number of months in such calendar year during the Tenn. From
time to time during any calendar year, Xxxxxxxx may estimate and reestimate the
Excess to be due by Tenant for that calendar year and deliver a copy of the
estimate or re-estimate to Tenant. Thereafter, the monthly installments of
Excess payable by Tenant shall be appropriately adjusted in accordance with the
estimations so that, by the end of the calendar year in question, Tenant shall
have paid all of the Excess as estimated by Landlord. Any amounts paid based on
such an estimate shall be subject to adjustment pursuant to paragraph (c) of
this Exhibit when actual Basic Cost is available for each calendar year.
(b) For the purposes of this Exhibit, the term "Basic Cost" shall mean
all expenses and disbursements of every kind (subject to the limitations set
forth below) which Landlord incurs, pays or becomes obligated to pay in
connection with the ownership, operation, and maintenance of the Building
(including the associated parking facilities), determined in accordance with
generally accepted federal income tax basis accounting principles consistently
applied, including but not limited to the following:
(i) Wages and salaries (including management fees) of all employees
engaged in the operation, repair, replacement, maintenance, and security of
the Building, including taxes, insurance and benefits relating thereto;
(ii) All supplies and materials used in the operation, maintenance,
repair, repla cement, and security of the Building;
(iii) Annual cost of all capital improvements made to the Building which
although capital in nature can reasonably be expected to reduce the normal
operating costs of the Building, as well as all capital improvements made
in order to comply with any law hereafter promulgated by any governmental
authority, as amortized over the useful economic life of such improvements
as determined by Landlord in its reasonable discretion (without regard to
the period over which such improvements may be depreciated or amortized for
federal income tax purposes);
(iv) Cost of all utilities, other than the cost of utilities actually
reimbursed to Landlord by the Building's tenants (including Tenant under
Section 4.c of this Lease);
(v) Cost of any insurance or insurance related expense applicable to the
Building and Landlord's personal property used in connection therewith;
(vi) All taxes and assessments and governmental charges whether federal,
state, county, or municipal, and whether they be by taxing or management
districts or authorities presently taxing or by others, subsequently
created or otherwise, and any other taxes and assessments attributable to
the Building (or its operation), and the grounds, parking areas, driveways,
and alleys around the Building, excluding, however, federal and state taxes
on income (collectively, "Taxes"); if the present method of taxation
changes so that in lieu of the whole or any part of any taxes levied on the
land or building, there is levied on Landlord a capital tax directly on the
rents received therefrom or a franchise tax, assessment, or charge based,
in whole or in part, upon such rents for the Building, then all such taxes,
assessments, or charges, or the part thereof so based, shall be deemed to
be included within the ten-n "Taxes" for the purposes hereof,
(vii) Cost of repairs, replacements, and general maintenance of the
Building, other than repair, replacement, and general maintenance of the
roof, foundation and exterior walls of the Building;
(viii) Cost of service or maintenance contracts with independent
contractors for the operation, maintenance, repair, replacement, or
security of the Building (including, without limitation, alarm service,
window cleaning, and elevator maintenance); and
(ix) The amount of basic rent payable under and pursuant to any ground
lease pertaining to the land on which the building is located.
There are specifically excluded from the definition of the term "Basic Cost"
costs (1) for capital improvements made to the Building, other than capital
improvements described in subparagraph (iii) above and except for items which,
though capital for accounting purposes, are properly considered maintenance and
repair items, such as painting of common areas, replacement of carpet in
elevator lobbies, and the like; (2) for repair, replacements and general
maintenance paid by proceeds of insurance or by Tenant or other third parties,
and alterations attributable solely to tenants of the Building other than
Tenant; (3) for interest, amortization or other payments on loans to Landlord;
(4) for depreciation of the Building; (5) for leasing commissions; (6) for legal
expenses, other than those incurred for the general benefit of the Building's
tenants (e.g., tax disputes); (7) for renovating or otherwise improving space
for occupants of the Building or vacant space in the Building; (8) for
correcting defects in the construction of the Building; (9) for overtime or
other expenses of Landlord in curing defaults or performing work expressly
provided in this Lease to be home at Landlord's expense; and (IO) for federal
income taxes imposed on or measured by the income of Landlord from the operation
of the Building.
(c) The Annual Cost Statement shall include a statement of Landlord's
actual Basic Cost for the previous year adjusted as provided in paragraph (d) of
this Exhibit. If the Annual Cost Statement reveals that Xxxxxx paid more for
Basic Cost than the actual Excess in the year for which such statement was
prepared, then Landlord shall promptly credit or reimburse for Tenant for such
excess; likewise, if Tenant paid less than the actual Excess, then Tenant shall
promptly pay Landlord such deficiency.
(d) With respect to any calendar year or partial calendar year in which
the Building is not occupied to the extent of ninety-five percent (95%) of the
rentable area thereof, the Basic Cost for such period shall, for the purposes
hereof, be increased to the amount which would have been incurred had the
Building been occupied to the extent of ninety-five percent (95%) of the
rentable area thereof.
EXHIBIT D
---------
Legal Description
TRACT I - Xxxxx Tower Site (Fee Simple):
----------------------------------------
Being a tract of land out of the X. Xxxxxxx Survey, Abstract No. 495, also being
Block 247, Official City Block
Number, City of Dallas, Dallas County, Texas and being more particularly
described as follows:
BEGINNING at a "+" cut in concrete found at the point of intersection of the
Northwest right-of-way line of Xxxxx Street (70 foot right-of-way) and the
Northeast right-of-way line of Xxxxxxx Street (60 foot right-of-way);
THENCE, N 44(degrees) 48' 00" W, along the said Northeast right-of-way line of
Xxxxxxx Street, a distance of 163.00 feet to a "+" cut in concrete set for
xxxxx, said xxxxx being the point of intersection of the said Northeast right-
of-way line of Xxxxxxx Street and the Southeast right-of-way line of Federal
Street (variable width right-of-way);
THENCE, N 44(degrees) 52' 00" E, along the said Southeast right-of-way line of
Federal Street, a distance of 340.28 feet to a "+" cut in concrete set for
xxxxx, said xxxxx being the point of intersection of the said Southeast right-
of-way line of Federal Street and the Southwest right-of-way line of Olive
Street (60 foot right-of-way);
THENCE, S 44(degrees) 48' 00" E, along the said Southwest right-of-way line of
Olive Street, a distance of 80.00 feet to a "+" cut in concrete found for xxxxx;
THENCE, S(degrees) 32 49' 00" E, continuing along the said Southwest right-of-
way line of Olive Street, a distance of 83.32 feet to a "+" cut in concrete
found for xxxxx, said xxxxx being the point of intersection of the said
Southwest right-of-way line of Olive Street and the said Northwest right-of-way
line of Xxxxx Street;
THENCE, S 44(degrees) 35' 00" W, along the said Northwest right-of-way line of
Xxxxx Street, a distance of 323.00 feet to the POINT OF BEGINNING and containing
54,475.320 square feet or 1.251 acres of land, more or less.
SAVE AND EXCEPT THAT CERTAIN 331 square foot portion of land situated in the
Xxxx Xxxxxxx Survey, Abstract No. 495, in Dallas City Block No. 247, being a
portion of the land labeled Tract 1 and conveyed to Tower 2001 Limited
Partnership by deed recorded in Volume 88169, Page 0028, Deed Records, Dallas
County, Texas and being more particularly described as follows:
COMMENCING at an "X" cut in a concrete walk found at the intersection of the
southwesterly right-of-way line of Olive Street (66.5 foot right-of-way) and the
southeasterly right-of-way line of Federal Street (variable width right- of-
way), the same being the most northerly xxxxx of said Tower 2001 Limited
Partnership Tract (Tract 1);
THENCE, along said southwesterly line of Federal Street and along the
northwesterly line of said Tower 2001 Limited Partnership Tract (Tract 1), S.
44(degrees) 54' 17" W., a distance of 290.25 feet to an "X" cut in a brick walk
found for the POINT OF BEGINNING, said xxxxx being on a non-tangent circular
curve to the right, with a radius of 286.50 feet and whose chord bears S.
31(degrees) 50' 13" W., a distance of 51.45 feet;
THENCE, in a southwesterly direction, departing said southeasterly line of
Federal Street and departing said northwesterly line of said Tower 2001 Limited
Partnership Tract (Tract 1) and along said curve through a central angle of
10(degrees) 18' 1 1 ", an arc distance of 51.52 feet to a 1/2" iron rod with
A.B. and A. cap found for xxxxx in the southwesterly line of said Tower 2001
Limited Partnership Tract (Tract 1), said xxxxx being the northeasterly right-
of-way line of North Xxxxxxx Street (60 foot right-of-way);
THENCE, along said southwesterly line of said Tower 2001 Limited Partnership
Tract (Tract 1) and along said northeasterly line of North Xxxxxxx Street, N.
44(degrees) 47' 16" W., a distance of 11.63 feet to the intersection of said
northeasterly line of North Xxxxxxx Street and said southeasterly line of
Federal Street, said corner being the most westerly corner of said Tower 2001
Limited Partnership Tract (Tract 1);
THENCE, along said southeasterly line of Federal Street and along the
northwesterly line of said Tower 2001 Limited Partnership Tract (Tract 1), N.
44(degrees) 54' 17" E., a distance of 50.05 feet to the POINT OF BEGINNING and
containing 331 square feet of land, more or less.
TRACT II - Olive Street Pedestrian Bridge (Fee Simple):
-------------------------------------------------------
Being all that certain air space abandoned and vacated to 2001 Xxxxx Street by
the City of Dallas pursuant to Ordinance No. 16552 passed by the City Council of
the City of Dallas on April 30, 1980, as amended by Ordinance No. 16692 passed
by the City Council of the City of Dallas on September 17, 1980, said air space
being from the horizontal plane described in said Ordinance, as a-mended, to 20
feet above such horizontal plane located above that certain lot, tract or parcel
of land lying and being situated in the City and County of Dallas, Texas, and
being a part of Olive Street between Blocks 247 and 253, official City of Dallas
numbers, and being more particularly described as follows:
COMMENCING at the intersection of the Northwest right-of-way line of Xxxxx
Street (70 foot right-of-way) and the Southwest right-of-way line of Olive
Street variable width right-of-way at this point);
THENCE, N 32(degrees) 49' 00" W, along said Southwest line of Olive Street, a
distance of 83.32 feet to a "+" cut in concrete found for xxxxx;
THENCE, N 44(degrees) 48' 00" W, along said Southwest right-of-way line of Olive
Street, a distance of 29.70 feet to the POINT OF BEGINNING; said POINT OF
BEGINNING being the centerline of a pedestrian bridge;
THENCE, N 44(degrees) 48' 00" W, continuing along said Southwest right-of-way
line of Olive Street, a distance of 10.50 feet to a point;
THENCE, N 45(degrees) 00" 12" E, and in a Northeasterly direction, crossing said
Olive Street, a distance of 33.17 feet to a point in the centerline of said
Olive Street;
THENCE, S 44(degrees) 48' 00" E, along said centerline of said Olive Street,
passing at 10-50 feet the centerline of said pedestrian bridge and continuing
for a total distance of 2 1.00 feet to a point;
THENCE, S 45(degrees) 00' 12" W, departing said centerline of Olive Street in a
Southwesterly direction and crossing said Olive Street, a distance of 33.17 feet
to a point in the Southwest right-of-way line of Olive Street;
THENCE, N 44(degrees) 48 00" W, and in a Northwesterly direction along said
Southwest right-of-way line of Olive Street; a distance of 10.50 feet to the
POINT OF BEGINNING and containing 696 square feet or 0.016 acres of land, more
or less.
TRACT III - Xxxxxxx Leasehold Tract (Leasehold):
------------------------------------------------
Being a tract of land out of the X. Xxxxxxx Survey, Abstract No. 495, and also
being part of Block 246, Official City Block Number, City of Dallas, Dallas
County, Texas, also being that certain tract of land which is subject to a lease
agreement dated October 13, 1970, between Xxxxxxx Realty Corporation, as
Landlord, and Xxxxxxxx Xxxx, as Tenant, a memorandum of which is recorded in
Volume 70206, Page 699 of the Deed Records of Dallas County, Texas, as amended
by amendment to memorandum of lease agreement recorded in Volume 8004 1, Page 5
81 of the Deed Records of Dallas County, Texas, as further amended by second
amendment to memorandum of lease agreement recorded in Volume 80191, Page 350 of
the Deed Records of Dallas County, Texas, and as further
amended by that certain Fourth Addendum to Lease Agreement by and between
Xxxxxxx Realty Corporation and Tower 2001 Limited Partnership, a memorandum of
which is recorded in the Deed Records, Dallas County, Texas and being more
particularly described as follows:
BEGINNING at a "+" cut in concrete sidewalk set at the South point of a xxxxx
clip at the intersection of the Northeast right-of-way line of Xxxxxxx Street
(60 foot right-of-way) and the Southeast right-of-way line of San Jacinto Street
75 foot right-of-way);
THENCE, N 00(degrees) 06' 00" E, along said xxxxx clip, a distance of 14.17 feet
to a "+" cut in concrete found for corner on the Southeast right-of-way line of
San Jacinto Street;
THENCE, N 45(degrees) 00' 00" E, along said Southeast right-of-way line of San
Jacinto Street, a distance of 325.29 feet to a 1/2-inch iron rod set for xxxxx,
said xxxxx also being the West point of a xxxxx clip at the intersection of the
said Southeast right-of-way line of San Jacinto Street and the Southwest right-
of-way line of Olive Street (60 foot right- of-way);
THENCE, S 89(degrees) 49' 45" E, along said xxxxx clip, a distance of 7.05 feet
to a "+" cut in concrete found for xxxxx, said xxxxx being the East point of
said xxxxx clip.
THENCE, S 44(degrees) 48' 00" E, along the said Southwest right-of-way line of
Olive Street, a distance of 279.23 feet to a "+" cut in concrete found for
xxxxx;
THENCE, S 45(degrees) 10" 20', W, a distance of 140.00 feet to a 1/2-inch rod
found for xxxxx;
THENCE, S 44(degrees) 48' 00" E, a distance of 190.00 feet to a "+" cut in
concrete set for xxxxx, said xxxxx lying on the Northwest right-of-way line of
Federal Street (variable width right-of-way);
THENCE, S 45(degrees) 10' 20" W, along the said Northwest right-of-way line of
Federal Street, a distance of 72.2 8 feet to a P.K. nail found for xxxxx;
THENCE, N 44(degrees) 48' 00" W, a distance of 199.15 feet to a P.K. nail set
for xxxxx;
THENCE, S 44(degrees) 26' 00" W, a distance of 128.01 feet to a "+" cut in
concrete found for xxxxx, said xxxxx lying on the said Northeast right-of-way
line of Xxxxxxx Street;
THENCE, N 44(degrees) 48' 00" W, along the said Northeast right-of-way line of
Xxxxxxx Street, a distance of 265.71 feet to the POINT OF BEGINNING and
containing 109,148.142 square feet or 2.506 acres of land, more or less.
SAVE AND EXCEPT THAT CERTAIN 3,772 square foot portion of land situated in the
Xxxx Xxxxxxx Survey, Abstract No. 495, in Dallas City Block No. 246, being a
portion of the land conveyed to Tower 2001 Limited Partnership by deed recorded
in Volume 88169, Page 0028, Deed Records, Dallas County, Texas and being more
particularly described as follows:
BEGINNING at a P.K. xxxx found for the most southerly xxxxx of said Tower 2001
Limited Partnership Tract and
the easternmost xxxxx of that certain Citizen's National Bank of Dallas Tract as
evidenced by deed recorded in
Volume 79108, Page 1627, Deed Records, Dallas County, Texas, said point also
being in the northwesterly line of Federal Street (variable width right-of-way);
THENCE, along the southwesterly line of said Tower 2001 Limited Partnership
Tract N. 44(degrees) 47' 10" W., a distance of 49.36 feet to a 60 nail found for
xxxxx;
THENCE, northeasterly departing the southwesterly line of said Tower 2001
Limited Partnership Tract, along a non-tangent curve to the right having a
radius of 286.50 feet through a central angle of 14(degrees) 30' 15", an arc
distance of 72.53 feet (chord bears N. 43 10' 02" E., a distance of 72.33 feet)
to a one-half inch iron rod with cap marked AB &
A found in the common boundary line between said Tower 2001 Limited Partnership
Tract and that certain tract of land conveyed to Xxxx X. Xxxx, Xx. and Xxxxxxxx
Xxxx Xxxxxxx as evidenced by deed recorded in Volume 70147, Page 0522, Deed
Records, Dallas County, Texas;
THENCE, along said common boundary line, S. 44(degrees) 47' 10" E., a distance
of 51.93 feet to an "X" found in the northwesterly line of said Federal Street,
said point being the most southeasterly xxxxx of said Tower 2001 Limited
Partnership Tract and the most southerly xxxxx of said Xxxx and Rozelle Tract;
THENCE, along the southeasterly line of said Tower 2001 Limited Partnership
Tract and the northwesterly line of Federal Street, S. 45(degrees) 12' 12" W., a
distance of 72.29 feet to the POINT OF BEGINNING and containing 3,772 square
feet of land, more or less.
TRACT IV - Xxxxxxx Street
-------------------------
Being all of that certain air space above the vertical clearance height of
approximately 23.0 feet over the crown of a portion of the 1200 square foot
parcel of Xxxxxxx Street quit claimed and abandoned by the City of Dallas
pursuant to Ordinance No. 16680 passed by the City Council of the City of
Dallas, on September 10, 1980, and also being part of that certain tract of land
which is e agreement dated October 13, 1970, between Xxxxxxx Realty Corporation,
as Landlord, and Xxxxxxx Xxxx, as tenant a memorandum of which is recorded in
Volume 70206, Page 699 of the Deed Records of Dallas County, Texas, as endment
to memorandum of lease agreement recorded in Volume 8004 1, Page 581 of the Deed
Records of Dallas County, Texas, as further amended by second amendment to
memorandum of lease agreement recorded in Volume 8011, Page 110 350 of the Deed
Records of Dallas County, Texas, and as further amended by that certain Fourth
Addendum to Lease Agreement by and between Xxxxxxx Realty Corporation and Tower
2001 Limited Partnership, a memorandum of which is recorded in the Deed Records,
Dallas County, Texas and being more particularly described as follows:
COMMENCING at the point of intersection of the Northwest right-of-way line of
Wenchell Lane (16 foot right-of-way) and the Southwest right-of-way line of
Xxxxxxx Street (60 foot right-of-way);
THENCE, N 44(degrees) 48' 00 " W, along the said Southwest right-of-way line of
Xxxxxxx Street, a distance of 71.60 feet to a point for xxxxx;
THENCE, N 43(degrees) 47' 49" E, a distance of 30.01 feet to the POINT OF
BEGINNING, said point lying on the centerline of said Xxxxxxx Street;
THENCE, N 44(degrees) 48' 00" W, along the said centerline of Xxxxxxx Street, a
distance of 20.00 feet to a point for xxxxx;
THENCE, N 43(degrees) 47' 49" E, a distance of 30.01 feet to a point for corner:
said corner lying on the Northeast right-of-way line of said Xxxxxxx Street;
THENCE, S 44(degrees) 48' 00" E, along the said Northeast right-of-way line of
Xxxxxxx Street, a distance of 20.00 feet to a point for corner;
THENCE, S 43(degrees) 47' 49" W, a distance of 30.01 feet to the POINT OF
BEGINNING and containing 600.020 square feet or 0.014 acres of land, more or
less.
TRACT V - Federal Street Tract (Tract A - Leasehold); (Tract B - Fee Simple):
-------------------------------------------------------------------
Being a 5,038 square foot portion of Federal Street abandoned by City of Dallas
Ordinance No. 21487, recorded in Deed Records, Dallas County, Texas, situated in
the Xxxx Xxxxxxx Survey, Abstract No. 495, between X. Xxxxxxx
Street and Olive Street, and also lying between Dallas City Block Nos. 246 and
247, and 5,038 square foot portion being more particularly described as follows:
COMMENCING at the intersection of the southeast line of Federal Street (variable
right-of-way at this point) with the southwest line of Olive Street (66.5 foot
right-of-way), said point also being the north xxxxx of a called 54,475.320
square foot tract of land described as Tract I in a deed to Tower 2001 Limited
Partnership recorded in Volume 88169 Page 0028, Deed Records, Dallas County,
Texas, an "X" cut in a concrete walk found for xxxxx;
THENCE, along the southeast line of Federal Street and the northwest line of
said Tower 2001 Tract, S. 44(degrees) 54' 17 W., a distance of 26.56 feet to the
POINT OF BEGINNING, a 60d nail found on a vent grate for xxxxx, with reference
notches cut on all four sides of the grate found;
THENCE, continuing along the southeast line of Federal Street and the northwest
line of said Tower 2001 Tract, S. 44(degrees) 54' 17" W., a distance of 263.69
feet to an "X" cut found in a brick wall found for xxxxx;
THENCE, northeasterly along a non-tangent curve to the left which has a chord
that bears N. 23(degrees) 43' 19' E., for a distance of 29.63 feet, a central
angel of 05(degrees) 55' 38" and a radius of 286.50 feet for an arc distance of
29.64 feet to the end of said curve and the beginning of a reverse curve to the
right, a PK nail found for xxxxx;
THENCE, northeasterly along the curve to the right which has a chord that bears
N. 43(degrees) 24' 25" E. for a distance of 179.83 feet, a central angle of
45(degrees) 17' 49" and a radius of 233.50 feet for an arc distance of 184.60
feet to the end of said curve and the beginning of a reverse curve to the left,
a PK nail found for xxxxx;
THENCE, northeasterly along the curve to the left which has a chord that bears
N. 60(degrees) 12' 3 3 " E. for a distance of 58.36 feet, a central angle of 11
41'32" and a radius of 286.50 feet for an arc distance of 58.47 feet to the
POINT OF BEGINNING and containing 5,038 square feet of land, more or less.
Said Federal Street Tract also being comprised of two tracts of land identified
as Tract A: Federal Street Xxxxxxx Leasehold Tract and Tract B: Federal Street
Fee Tract and said tracts are more particularly described as follows:
Tract A: Federal Street Xxxxxxx Leasehold Tract
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Being a 0.0484 acre portion of Federal Street situated in the Xxxx Xxxxxxx
Survey, Abstract No. 495, between X. Xxxxxxx Street and Olive Street, and also
lying between Dallas City Block Nos. 246 and 247, said tract of land being
abandoned by City of Dallas Ordinance No. 21487 as filed for record with the
City Secretary, and also being part of that certain tract of land which is
subject to a lease agreement dated October 13, 1970, between Xxxxxxx Realty
Corporation, as Landlord, and Xxxxxxxx Xxxx, as Tenant, a memorandum of which is
recorded in Volume 70206, Page 699 of the Deed Records of Dallas County, Texas,
as amended by amendment to memorandum of lease agreement recorded in Volume
80041, Page 581 of the Deed Records of Dallas County, Texas, as further amended
by second amendment to memorandum of lease agreement recorded in Volume 80191,
Page 350 of the Deed Records of Dallas County, Texas, and as further amended by
that certain Fourth Addendum to Lease Agreement by and between Xxxxxxx Realty
Corporation and Tower 2001 Limited Partnership, a memorandum of which is
recorded in the Deed Records, Dallas County, Texas said 0.0484 acre portion
being more particularly described as follows:
COMMENCING at an "X" cut in a concrete walk found for the intersection of the
southeasterly right-of-way line of Federal Street (variable width right-of-way
at this point) with the southwest line of Olive Street (66.5 foot right-of-
way), said "X" also being the most northerly xxxxx of a called 54,475.320 square
foot tract of land described as Tract I in a deed to Tower 2001 Limited
Partnership recorded in Volume 88169, Page 0028, Deed Records, Dallas County,
Texas;
THENCE, along said southeasterly line of Federal Street and the northwesterly
line of said Tower 2001 Limited Partnership Tract, S. 44(degrees) 54' 17" W.,
passing a 60d nail found for the most xxxxxxxx xxxxx of said Federal Street
abandonment at 26.56 feet, in all a total distance of 178.92 feet to an "X" cut
found for the POINT OF BEGINNING;
THENCE, continuing along the southeasterly line of said Federal Street
Abandonment and said northwesterly line of the Tower 2001 Limited Partnership
Tract, S. 44(degrees) 54' 17" W., a distance of 11 1.33 feet to an "X" in a
brick walk found for the most westerly xxxxx of said Federal Street Abandonment,
the same being the point of curvature of a non-tangent circular Curve to the
left whose radius is 286.50 feet and whose chord bears N. 23(degrees) 43' 19"
E., a distance of 29.63 feet;
THENCE, in a northeasterly direction, along the northwesterly line of said
Federal Street Abandonment and along said curve through a central angle of
05(degrees) 55' 38", an arc distance of 29.64 feet to a PK nail found for the
point of reverse curvature of a circular curve to the right whose radius is
233.50 feet and whose chord bears N. 31(degrees) 22' 55" E., a distance of 86.09
feet;
THENCE, continuing in a northeasterly direction, along the northwesterly line of
said Federal Street Abandonment and along said curve through a central angle of
21(degrees) 14' 50", an arc distance of 86.59 feet to an "X" cut found for
xxxxx;
THENCE, S. 45(degrees) 05' 43" E., a distance of 30.84 feet to the POINT OF
BEGINNING and containing 2,109 square feet or 0.0484 acres of land, more or
less.
Tract B: Federal Street Fee Tract
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Being a 0.0672 acre portion of Federal Street situated in the Xxxx Xxxxxxx
Survey, Abstract No. 495, between X. Xxxxxxx Street and Olive Street, and also
lying between Dallas City Block Nos. 246 and 247, said tract of land being
abandoned by City of Dallas Ordinance No. 21487 as filed for record with the
City Secretary, said 0.0672 acre portion being more particularly described as
follows:
COMMENCING at the intersection of the southeast line of Federal Street (variable
width right-of-way at this point) with the southwest line of Olive Street (66.5
foot right-of-way), said point also being the north xxxxx of a called 54,475.320
square foot tract of land described as Tract I in a deed to Tower 2001 Limited
Partnership recorded in Volume 88169, Page 0028, Deed Records, Dallas County,
Texas, an "X" cut in a concrete walk found for xxxxx;
THENCE, along the southeast line of Federal Street and the northwest line of
said Tower 2001 Tract, S. 44(degrees) 54' 17" W., a distance of 26.56 feet to
the POINT OF BEGINNING, a 60d nail found on a vent grate for xxxxx, with
reference notches cut on all four sides of the grate found;
THENCE, continuing along the southeast line of Federal Street and the northwest
line of the Tower 2001 Tract, S. 44(degrees) 54' 17" W., a distance of 152.36
feet to an "X" cut found on a concrete walk for xxxxx;
THENCE, N. 45(degrees) 05' 43" W., a distance of 30.84 feet; to an "X" cut found
for xxxxx, same being the beginning of a curve to the right whose radius is
233.50 feet and whose chord bears N. 54(degrees) 01' 49" E., a distance of 97.29
feet;
THENCE, northeasterly along said curve through a central angle of 24(degrees)
02' 59" for an arc distance of 98.01 feet to a PK nail found at the end of said
curve and the beginning of a curve to the left having a radius of 286.50 feet
and a chord bearing and distance of N. 60(degrees) 12' 33 " E., 58.3 6 feet;
THENCE, northeasterly along said curve to the left through a central angle of
11(degrees) 41' 32 " for an arc distance of 5 8.47 feet to the POINT OF
BEGINNING and containing 2,929 square feet or 0.0672 acres of land, more or
less.
EXHIBIT E
TENANT FINISH-WORK: AS-IS
Tenant hereby accepts the Premises in their "AS-IS" condition, and Landlord
shall have no obligation to perform any work therein (including, without
limitation, demolition of any improvements existing therein or construction of
any tenant finish-work or other improvements therein), and shall not be
obligated to reimburse Tenant or provide an allowance for any costs related to
the demolition or construction of improvements therein. Before Tenant may
occupy the Premises to conduct its business therein, Tenant shall, at its
expense, obtain and deliver to Landlord a certificate of occupancy from the
appropriate governmental authority for the Premises.
EXHIBIT F
PARKING
Tenant shall be permitted to use eighteen (I 8) undesignated vehicular parking
spaces in the parking garage associated with the Building (the "Parking Garage")
during the initial Term at a rate of $75.00 (plus applicable taxes) per parking
space per month and subject to such terms, conditions and regulations as are
from time to time charged or applicable to patrons of the Parking Garage. If,
for any reason, Landlord fails or is unable to provide, or Tenant is not
permitted to use, all or any portion of the parking spaces to which it is
entitled hereunder, then Tenant's obligation to pay for such spaces shall be
abated for so long as Tenant does not have the use thereof-, this abatement
shall be in full settlement of all claims that Tenant might otherwise have
against Landlord because of Landlord's failure or inability to provide Tenant
with such parking spaces. If Tenant sublets any portion of the Premises or
assigns any of its interest in this Lease, then the parking spaces allocated to
Tenant hereunder shall be reduced to the extent the ratio between the rentable
square feet of the Premises and the parking spaces granted to Tenant hereunder
exceeds the Building standard ratio of parking space per rentable square foot as
established by Landlord from time to time.
