BASIC LEASE INFORMATION
Lease Date: September 17, 1996
Tenant: Jayhawk Acceptance Corporation
Xxxxxx's Address: Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
Contact: X. X. 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 00000
Contact: Xxxx Xxxxxx
Telephone: 000-000-0000
Premises: Suite No. 600 in the office building (the
"Building")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: Nine months, commencing October 1, 1996 (the
"Commencement Date") and ending at 5:00 p.m.
June 30, 1997, subject to adjustment and earlier
termination as provided in the Lease.
Basic
Rental: $25,420.75 per month, which is based on an annual
Basic Rental of S11.50 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
Proportionate
Share: 2.4926%, which is the percentage obtained by
dividing (i) the 26,526 rentable square feet in the
Premises by (ii) the 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: TENANT:
BQUITABLE-CROW TOWER 2001, LTD., JAYHAWK ACCEPTANCE CORPORATION
a Texas limited partnership a Texas corporation
By: EQ/GP Southwest, Ltd., By: /s/ Xxxxxxx X. Xxxxxxxx
a Texas limited partnership Name: Xxxxxxx X. Xxxxxxxx
Title: Director of Human Resources
By: GP/EQ Southwest, Inc.,
a Texas corporation
its sole general partner
By: /s/Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title:Investment Officer
TABLE OF CONTENTS
DEFINITIONS AND BASIC PROVISIONS. . . . . . . . . . . . . 1
LEASE GRANT . . . . . . . . . . . . . . . . . . . . . 1
TERM. . . . . . . . . . . . . . . . . . . . . . . .. 1
RENT. . . . . . . . . . . . . . . . . . . . . . . . 1
a. Payment. . . . . . . . . . . . . . . . . . . . 1
b. Intentionally Deleted. . . . . . . . . . . . . 2
c. Electrical Costs . . . . . . . . . . . . . . . 2
d. Annual Cost Statement. . . . . . . . . . . . . 2
e. Adjustments to Electrical Costs. . . . . . . 2
DELINQUENT PAYMENT; HANDLING CHARGES. . . . . . . . 2
SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . 2
LANDLORD'S OBLIGATIONS. . . . . . . . . . . . . . . 3
a. Services 3
b. Excess Utility Use 4
c. Discontinuance 4
d. Restoration of Services; Abatement . . . . . . . . 4
IMPROVEMENTS;ALTERATIONS; REPAIRS; MAINTENANCE . . . . . 4
a. Improvements; Alterations. . . . . . . . . . . . 5
b. Repairs; Maintenance . . . . . . . . . . . . .. . .5
c. Performance of Work. . . . . . . . . . . . . . . .5
d. Mechanic's Liens . . . . . . . . . . . .. . . . . .5
USE . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ASSIGNMENT AND SUBLETTING 6
a. Transfers: Consent . . . . . . . . . . . . . . . 7
b. Cancellation 7
c. Additional Compensation. . .. . . . . . . . . 7
INSURANCE; XXXXXXX; SUBROGATION; INDEMNITY. . . . . . 7
a. Insurance. . . . . . . . . . . . . . . . . . . . . .7
b. Waiver of Negligence Claims: No Subrogation. . . . .7
c. Indemnity. . . . . . . . . . . . . . . . . . . . . .8
SUBORDINATION ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE. . 8
a. Subordination. . . . . . . . . . . . . . . . . . . . 8
b. Attornment. . . . . . . . . . . . . . . . . . . . . .8
c. Notice to Landlord's Morgagee . . . . . . . . . . . .8
RULES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . 9
CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . 9
a. Taking - Landlord's and Tenant's Rights . . . . . . 9
b. Taking - Landlord's Rights. . . . . . . . . . . . . 9
c. Award. . . . . . . . . . . . . . . . . . . . . . . . 9
FIRE OR OTHER CASUALTY. . . . . . . . . . . . . . . . . . . . 9
a. Repair Estimate. . . . . . . . . . . .. . . . . . . . 9
b. Landlord's and Tenant's Rights . . . . . . . . . . . 9
c. Landlord's Rights. . . . . . . . . . . .. . . .. . . 10
d. Repair Obligation. . . . . . . . . . . . . . . . . . 10
TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
PAYMENT BY TENANT; NON-WAIVER. . . . . . . . . . . . . . . . . 12
a. Payment by Tenant. . . . . . . . . . . . . . . . . . . 12
b. No Waiver. . . . . . . . . . . . . . . . . . . . . . . 12
LANDLORD'S LIEN . . . . . . . . . . . . . . . . . . . . . . . .12
SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . .13
HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . .13
CERTAIN RIGHTS RESERVED BY LANDLORD. . . . . . . . . . . . . . 13
SUBSTITUTION SPACES . . . . . . . . . . . . . . . . . . . . . .14
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . .15
a. Landlord Transfer. . . . . . . . . . . . . . . . . .. 15
b. Landlord's Liability . . . . . . . . . . . . . . .. . . 15
c. Force Majeure. . . . . . . . . . . . . . . . . . . . . 15
d. Brokeraqe. . . . . . . . . . . . . . . . . . . . . . . 15
e. Estoppel Certificates. . . . . . . . . . . . .. . . . . 16
f. Notices. . . . . . . . . . . . . . . . . . . . . . . . 16
g. Separability. . . . . . . . . . . . . . . . . . . . . 16
h. Amendments; and Xxxxxxx Effect . . . . . . . . . . . . 16
i. Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . 16
j. Joint and Several Liability. . . . . . . . . . . .. . . 16
k. Captions . . . . . . . . . . . . . . . . . . . . . . . 16
1. No Merger. . . . . . . . . . . . . . . . . . . . . . . 16
m. No Offer. . . . . . . . . . . . . . . . . . . . . . . 17
n. Tax Protest. . . . . . . . . . . . . . . . . . . . . . 17
o. Exhibits. . . . . . . . . . . . . . . . . . . . . . . .17
p. Entire Agreement. . . . . . . . . . . . . . . . . . . 18
LEASE
THIS LEASE AGREEMENT (this "Lease") is entered into as of _________,
1996, between EQUITABLE-CROW TOWER 2001,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 Landlord and Tenant
contemporaneously herewith are incorporated herein by reference for 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 Xxxxxxxx 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 Term. Basic Rental for any
fractional month at the beginning of 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.]
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 The 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 from the date
due until paid at the maximum lawful rate. Alternatively, Landlord may charge
Tenant a fee equal to 10% of the delinquent payment to reimburse Landlord for
its cost and inconvenience incurred as a consequence of Tenant's delinquency.
In no event, however, shall the charges permitted under this Section 5 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 the 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'sobligations. 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
non-standard 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 invites. 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 110 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 Landlord, at Xxxxxx's expense. Tenant
shall not install any electrical equipment requiring special wiring or
requiring voltage in excess of 110 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 Buidlling
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 costs 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 Buildings plumbing system) made in or
upon the Premises, either by Landlord or Tenant, shall be
Landlord's property at the end of the Term 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 th 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. Tenant shall maintain
the Premises in a clean, safe, operable, attractive
condition, 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 Landlords 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 has 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. Transfers: 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 that 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; WAIVERS; SUBROGATION; IDEMNITY
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
Xxxxxxxx's agent against all liability for injury to or death of a person of
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 Landlords 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 under any insurance
policy that covers the Building, the Premises, Landlord's or Tenant's
fixtures, personal property, leasehold improvements, or business, or, in the
case of 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, Landlords 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 ll.b, Tenant 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 Landlords
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 Landlords Mortqagee. 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 Landlords 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, care, 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 Tenant'e 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 shell 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 Tanant'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 Tenants 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 Landlords rights under Section 15.c)
Landlord shall repair the Building or the Premiere, 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 the 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. Such 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
l9.a., and (iii) an amount equal to (A) the total Rent that
Tenant would have been required to pay for the remainder of
the Term discounted to present value at a per annum rate
equal to the "Prime Rate" as published on the date this
Lease is terminated by th e 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 Xxxxxx'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 l9.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 period. Landlord shall
use reasonable efforts to relet the Premises on such terms
and conditions as Landlord in its sole discretion may
determine (including a term different from the 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
Xxxxxx's obligations hereunder be diminished because
of, Xxxxxxxx's failure to relet the Premises 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 Tenant'e 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 Landlords 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 attorneys'
fees and 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 The 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 end 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 Xxxxxx 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 such 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 Xxxxxx's 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 purchasers, 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 Term shall be one
year from the Substitution affective 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
Affective 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 Term 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 terms 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 Tenant'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
Tenants 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 any 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 Xxxxxxx 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 Term, 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.
1 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 Landlords
other rights and remedies, Tenant must pay or otherwise
reimburse Landlord for all costs, charges and expenses
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 a
result of Tenant's tax protest or appeal, the appraised
value for 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 TBNANT'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, SETOFF, DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD
OF ITS DUTIBS OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
DATED as of the date first above written.
LANDLORD: TENANT:
EQUITABLE-CROW TOWER 2001, LTD., JAYHAWK ACCEPTANCE CORPORATION,
a Texas limited partnership a Texas corporation
By: EQ/GP Southwest, Ltd., By: /s/ Xxxxxxx X. Xxxxxxxx
a Texas limited partnership Name: Xxxxxxx X. Xxxxxxxx
Title: Director HR & Admin
By: GP/EQ Southwest, Inc.,
a Texas corporation
its sole general partner
By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Investment Officer
