OFFICE LEASE
BASIC DEFINITIONS AND LEASE PROVISIONS
COMMERCE PLAZA HILLCREST
A. The following list sets out certain defined terms and certain
financial and other information pertaining to the lease:
1. "Date of Lease": September 8, 1999
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2. "Landlord": AETNA LIFE INSURANCE COMPANY, C/O ALLEGIS REALTY
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INVESTORS, L.L.C.
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3. Landlord's address: 00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000,
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Dallas, TX 75243-3735
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Contact: Asset Management
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Telephone: 000-000-0000 Facsimile: 000-000-0000
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4. "Tenant": PHYMED, INC., a Texas Corporation
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5. Tenant's address: 00000 Xxxxxxxxx Xxxx, Xxxxx X000
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Dallas, Texas 75230
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Contact: Mr. Xxxxxx Xxxxxx
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Telephone: Facsimile:
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6. Tenant's trade name: PHYMED Diagnostic Imaging, Inc.
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7. "Building": Landlord's property located in the City of Dallas,
Dallas County, Texas, which property is described or shown on Exhibit "A",
attached to the Lease. -----------
8. "Premises": A unit in the Building containing approximately 8,472
square feet in rentable area (measured by calculating lengths and widths to the
exterior of outside walls and to the center of interior walls, without decuction
for any columns or projections necessary to the building, and, if applicable, a
proportionate share of any common areas located on the floor(s) on which the
Premises is located and a proportionate share of any of the Building's public
areas, management office, engineer's office, and mechanical spaces, e.g.,
service areas housing communications, HVAC, plumbing, fire protection and
elevator equipment), being known as Suite E100 and being described or shown on
Exhibit "B", attached to the Lease. With regard to Exhibit "B", the parties
agree that the exhibit is attached solely for the purpose of locating the
Building and the Premises within the Building and that no representation,
warranty, or covenant is to be implied by any other information shown on the
exhibit (i.e., any information as to buildings, tenants or prospective tenants,
etc. is subject to change at any time). Should a party desire to measure the
square footage of the Premises, it must do so at the time of construction of any
leasehold improvements prior to the Commencement Date, or if no leasehold
improvements are to be constructed, then prior to the Commencement Date. If such
measurement reflects a different number, then, subject to the other party's
verification of the number, the parties agree to make adjustments based on such
measurement. In the event of a dispute regarding the method of calculation, the
parties agree that the standards for measurement set by the Building Owners and
Managers Association ("BOMA") shall govern and control. If no measurement is
made prior to the Commencement Date, then the parties to this Lease will be
deemed to have accepted the number contained herein as the square footage of
rentable area of the Premises throughout the Lease Term, subject to adjustment
only for any subsequent additions or deletions of space.
9. "Commencement Date": September 1, 1999, subject to extension for
any delay other than a Tenant Delay (as defined in Exhibit "E").
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10. "Lease Term": Commencing on the Commencement Date and continuing
for Sixty (60) months after the Commencement Date; provided that if the
Commencement Date is a date other than the first day of a calendar month, then
the Lease Term shall be extended so that it expires at the end of the calendar
month following the expiration of the months noted herein.
11. "Base Rental": The total Base Rental for the Lease Term is $
826,020.00 , payable as follows:
Month(s) Amount per s.f. Amount per year Amount per month
1-60 $19.50 $165,204.00 $13,767.00
12. "Base Expense Stop": 1999 Base Year
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13. "Tenant's Pro Rata Share":3.68 %, which is the percentage obtained
by dividing (a) the square footage of rentable area of the Premises by (b) the
square footage of rentable area of the Building.
14. "Prepaid Rental": $ N/A , being an estimate of the Base Rental,
for the N/A month(s) of the Lease Term, such prepaid rental being due and
payable upon execution of this Lease.
15. "Security Deposit": $ 55,068.00 , such Security Deposit being due
and payable upon execution of this Lease. If at the end of the 57th month of the
term of the Lease, Tenant is not, and has never been in default of the Lease,
then $41,301.00 of the Security Deposit shall be credited toward the 58th, 59th,
and 60th months' Base Rental as herein defined.
16. "Permitted Use": Imaging Center only and for no other use or
purpose. Tenant acknowledges that the above specification of a "Permitted Use"
means only that Landlord has no objection to the specified use and does not
include any representation or warranty by Landlord that such specified use
complies with applicable laws and/or requires special governmental permits.
17. "Rent" or "rental": All amounts due from Tenant to Landlord under
Section 4.5 of the Lease), are deemed to be "rent" or "rental".
18. "Brokers": Xxxxxxx-Xxxxxx Properties of Texas, Ltd.
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B. The foregoing Basic Lease Information is incorporated into and made
a part of the lease. If any conflict exists between any Basic Lease Information
and the Lease, then the Lease shall control.
IN WITNESS WHEREOF, Xxxxxxxx and Tenant have entered into and executed
this Lease on the Date of the Lease written above.
LANDLORD: TENANT:
AETNA LIFE INSURANCE COMPANY PHYMED, INC., a Texas Corporation
By: Allegis Realty Investors, LLC, By:
Its Investment Advisor and Agent
Printed Name: Xxxxxx Xxxxxx
By: Title: President
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Name: Xxxxx X. Xxxxxx
Title: Vice President
LEASE AGREEMENT
(Office)
This LEASE AGREEMENT (the "Lease") is entered into as of the Date of
Lease between AETNA LIFE INSURANCE COMPANY ("Landlord") and PHYMED, INC., a
Texas Corporation ("Tenant").
ARTICLE 1
BASIC DEFINITIONS AND LEASE PROVISIONS
1.1 The definitions and basic provisions set forth in the Basic
Definitions and Lease Provisions executed by Landlord and Tenant, and attached
hereto, are incorporated herein by reference for all purposes.
ARTICLE 2
LEASE GRANT
2.1 Subject to the terms and conditions of this Lease, Landlord leases
to Tenant, and Tenant leases from Landlord, the Premises for the Lease Term.
2.2 In addition, Tenant is granted the non-exclusive right to use in
common with the other tenants and occupants the parking and other common areas
of the Building, as such may be modified from time to time by Landlord. The
grant herein provided shall not include any easement for light or air.
ARTICLE 3
DELIVERY OF THE PREMISES; LEASE TERM
3.1 The Lease Term shall be for the period of time specified in the
Basic Definitions and Lease Provisions, beginning on the Commencement Date, as
such date may be adjusted herein, and expiring on the Expiration Date. If this
Lease is executed before the Premises become vacant, or otherwise available, or
if any present tenant or occupant of the Premises holds over, and Landlord
cannot acquire possession of the Premises to deliver to Tenant, or if Landlord
is obligated to construct leasehold improvements in the Premises under the
provisions of Exhibit "E", but is unable to complete the leasehold improvements
by the Commencement Date due to an unavoidable delay, as defined in Exhibit "E",
then Landlord shall not be deemed to be in default hereunder, and Xxxxxx agrees
to accept possession on such date as Landlord is able to deliver possession and
the Commencement Date shall be postponed accordingly. Thereafter, this Lease
shall continue for the full number of months set forth in the Lease Term. Except
for a postponement of the Commencement Date, this Lease shall not be affected by
any failure to deliver possession as a result of an event noted above and Tenant
shall have no claim for damages against Landlord as a result thereof, all of
which claims are hereby waived and released by Xxxxxx.
3.2 If Tenant takes possession of the Premises prior to the
Commencement Date for any reason, then such possession shall be subject to all
the terms and conditions of the Lease and Tenant shall pay Base Rental and other
rent to Landlord on a per diem basis for each day of occupancy prior to the
Commencement Date at the rate payable for the first month of the Lease Term.
Tenant shall not, however, be obligated to pay Base Rental and other rent to
Landlord prior to the Commencement Date if such early occupancy is only for the
purpose of constructing leasehold improvements if Tenant is required to do so
under the provisions of Exhibit "E".
3.3 By taking possession of the Premises, it shall be conclusive
evidence that Tenant has inspected the Premises (and has sufficient knowledge
and expertise to make such inspection or has caused the Premises to be inspected
on its behalf by one or more persons with such knowledge and expertise), that
Xxxxxx has accepted the Premises and Building as being in good and satisfactory
condition, suitable for the purposes herein intended and that the same comply
fully with Landlord's covenants and obligations under the Lease with respect to
the construction of leasehold improvements, except for any punchlist items
agreed to in writing by Landlord and Tenant, if Xxxxxxxx performed the
construction of leasehold improvements. Tenant acknowledges and agrees that
Landlord has made no representation or warranty, express or implied, as to the
habitability, suitability, quality, condition or fitness of the Premises or
Building, and Tenant waives, to the extent permitted by applicable law, any
defects in the Premises or Building and any claims arising therefrom, save and
except those arising from any construction or repair obligations of Landlord
expressly provided for in the Lease.
3.4 Following the Commencement Date, Landlord shall prepare a
Commencement Date Letter in the form attached hereto as Exhibit "F" setting
forth the Commencement Date, Expiration Date, and confirming Tenant's acceptance
of the Premises and that Landlord has performed all of its obligations with
respect to delivery of the Premises, except as to any punchlist items previously
specified in writing and related to any construction performed by Landlord.
Tenant shall execute and deliver the Commencement Date Letter to Landlord within
ten (10) days after delivery by Landlord.
ARTICLE 4
RENT
4.1 Tenant promises and agrees to pay Landlord at Landlord's address
set forth in the Lease, or such other address as Landlord may provide to Tenant,
the Base Rental and all other rent charged under this Lease without deduction or
set off, for each month of the entire Lease Term. The first monthly installment
of Base Rental shall be payable by Tenant to Landlord contemporaneously with the
execution of the Lease, and thereafter, a monthly installment of Base Rental, as
may be adjusted in accordance with the provisions of the Lease, shall be due and
payable, in advance, without notice or demand on or before the first day of each
succeeding calendar month during the Lease Term. The Base Rental for any
fractional month at the beginning or end of the Lease Term shall be prorated.
4.2 The Base Rental is determined, in part, on Landlord's estimate of
Basic Costs incurred by Landlord each year in connection with its ownership,
operation and management of the Building. In the event that the Basic Costs
increase, or are estimated by Landlord to increase, above the levels charged to
Landlord on the Date of the Lease, Landlord shall charge to Tenant and Tenant
agrees to pay as additional rental Tenant's Pro Rata Share of any such increases
in Basic Costs in accordance with the provisions of Exhibit "C".
4.3 The Security Deposit shall be paid to Landlord contemporaneously
with the execution of the Lease. Landlord shall hold the Security Deposit
without liability for interest and as security for the performance by Tenant of
Tenant's covenants and obligations under the Lease, it being expressly
understood that such deposit shall not be considered an advance payment of
rental or a measure of Landlord's damages in case of default by Xxxxxx. Upon the
occurrence of any Event of Default by Xxxxxx, Landlord may, from time to time,
without prejudice to any other remedy, use the Security Deposit to the extent
necessary to make good any arrearage of rent and any other damage, injury,
expense or liability caused to Landlord by such Event of Default. 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. If Tenant is not then in default of this Lease, any remaining balance of
the Security Deposit shall be returned by Landlord to Tenant upon termination of
the Lease. If Landlord transfers its interest in the Premises during the Lease
Term, Landlord may assign the Security Deposit to the transferee and thereafter
shall have no further liability for the return of the Security Deposit.
4.4 Tenant hereby acknowledges that late payment to Landlord of rent
due hereunder will cause Landlord to incur costs and inconvenience not
contemplated by the Lease, the exact amount of which will be extremely difficult
to ascertain. If any rent due from Tenant is not received by Landlord or
Landlord's designated agent within ten (10) days after its due date, then Tenant
shall pay to Landlord as a late charge ten percent (10%) of such overdue amount,
plus any attorney's fees incurred by Landlord by reason of Tenant's failure to
pay rent when due hereunder. The parties hereby agree that such late charges
represent a fair and reasonable estimate of the cost that Landlord will incur by
reason of Tenant's late payment. Xxxxxxxx's acceptance of such late charges
shall not constitute a waiver of Xxxxxx's default with respect to such overdue
amount or estop Landlord from exercising any of the other rights and remedies
granted hereunder.
4.5 All payments required of Tenant under the Lease shall bear
interest, beginning on the day after the due date until paid at the lesser of
twelve percent ( 12 %) per annum or the maximum lawful rate ("Default
Interest"). In no event, however, shall the charges permitted under this
paragraph or elsewhere in the Lease, to the extent the same are considered to be
interest under applicable law, exceed the maximum lawful rate of interest.
4.6 No payment by Tenant or receipt by Landlord of a lesser amount than
the rent due under this lease shall be deemed to be other than on account of the
earliest rent due hereunder, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or to pursue any other
remedy provided in this lease or at law or in equity.
ARTICLE 5
SERVICES
5.1 Provided no Event of Default exists, Landlord shall use all
reasonable efforts to furnish to Tenant the following services: (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 ("HVAC") as appropriate,
during Normal Business Hours (which shall be on generally accepted business days
from 6:30am to 8:30pm , Monday through Friday and 8:00am to 4:00pm on
Saturdays), and at such temperatures and in such amounts as are reasonably
considered by Landlord to be standard; (iii) janitorial service comparable to
that provided in other office buildingson business days (if Tenant's use or
floor covering or other leasehold improvements require special services, then
Tenant shall, at Landlord's option, either retain another cleaning contractor to
perform such services [with Landlord's approval] or pay the additional cost
reasonably determined by Landlord attributable to the special services, as
additional rent) and such window washing as may from time to time in Landlord's
judgment be reasonably required; (iv) if a multi-floor building, then 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 in operation at times other than during customary business hours and
on holidays; (v) replacement of Building-standard light bulbs and fluorescent
tubes; and (vi) electrical current other than for lighting or equipment
requiring more than 110 volts, or other than for lighting or equipment with
electrical energy consumption that exceeds normal office usage as reasonably
determined by Landlord. If Tenant desires any HVAC service after Normal Business
Hours, such service shall be supplied to Tenant upon the written request of
Tenant delivered to Landlord before 3 p.m. on the business day before the
service is to be provided, and Tenant shall pay to Landlord the cost of such
service with the next due installment of monthly rent after Landlord has
delivered to Tenant an invoice therefor.
5.2 Tenant shall not install any electrical equipment requiring special
wiring or voltage in excess of 110 volts or otherwise exceeding Building
capacity unless approved in advance by Landlord. If approved, Landlord shall use
reasonable efforts to furnish electrical current for such lighting or equipment
through the then-existing feeders and risers serving the Building and the
Premises, and Tenant shall pay to Landlord the cost of such service with the
next due installment(s) of monthly rent after Xxxxxxxx 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
Tenant's potential usage of electricity and that 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 Tenant's expense. In no
event will the use of electricity in the Premises exceed the capacity of
existing feeders and risers to or wiring in the Premises. If additional risers
or wiring are required to meet Tenant's excess electrical requirements,
Landlord, in it sole and absolute judgment, may elect to permit same at the sole
cost and expense of Tenant, provided such additional feeders, risers or wirings
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 in the
Premises which affect the standard temperature otherwise maintained by the air
conditioning system, 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 with the next due installment of rent after Landlord has
delivered to Tenant an invoice therefor.
5.3 Landlord's obligation to furnish services under Section 5.1 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 thirty (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.
5.4 Failure to any extent to furnish any service described above or
any stoppage or interruption of those services resulting from any cause shall
not render Landlord liable in any respect for damages, nor be construed as an
eviction of Tenant or work an abatement of rent, nor relieve Xxxxxx from
fulfillment of any covenant or agreement contained in the Lease.
ARTICLE 6
USE
6.1 Tenant shall use the Premises only for the Permitted Use. Tenant
will not occupy or use the Premises, or permit any portion of the Premises to be
occupied or used, for any business or purpose other than the Permitted Use or
for any use or purpose which is unlawful or deemed to be disreputable in any
manner, or dangerous to life, limb or property, or extrahazardous on account of
fire, nor permit anything to be done which will in any way increase the premiums
for insurance coverage on the Building or contents therein, or invalidate any
insurance coverage on the Building. Tenant will conduct its business and control
its agents, employees and invitees in such a manner as not to create any
nuisance, nor interfere with, annoy or disturb other tenants or Landlord, in the
management of the Building. Tenant will not commit waste and will maintain the
Premises in a clean, healthful and safe condition and will comply with all laws,
ordinances, orders, rules and regulations (state, federal, municipal, insurance
and other agencies or bodies having any jurisdiction thereof) with reference to
the use, condition or occupancy of the Premises, including, without limitation,
all environmental, health and safety laws and the Americans with Disabilities
Act. Tenant will secure at its own expense all permits and licenses required for
the transaction of business from the Premises in accordance with the Permitted
Use. Tenant will receive or take delivery of goods or merchandise and will
remove all garbage and trash only in the manner and areas prescribed by Landlord
from time to time. Tenant will not display or sell merchandise outside the
exterior walls and doorways of the Premises and may not use such areas for
storage. Tenant will not keep any substance or carry on or permit any operation
which might emit offensive odors or conditions into other parts of the Building
or use any apparatus which might make undue noise or vibrations in the Building.
Tenant further agrees not to install any exterior lighting, amplifiers or
similar devices or use in or about the Premises an advertising medium which may
be heard or seen outside the Premises, such as flashing lights, searchlights,
loudspeakers, phonographs or radio broadcasts.
6.2 Tenant will, and will cause all its employees, agents, contractors
and invitees to, comply fully with all rules and regulations of the Building
adopted by Landlord from time to time. A copy of the rules and regulations for
the Building, existing on the Date of the Lease, are attached hereto as Exhibit
"D". Landlord shall at all times have the right to change such rules and
regulations or to promulgate other rules and regulations in such reasonable
manner as may be deemed advisable for the safety, care, or cleanliness of the
Building or Premises, and for the preservation of good order therein, all of
which rules and regulations, changes and amendments will be forwarded to Tenant
in writing and shall be carried out and observed by Tenant.
ARTICLE 7
SIGNAGE
7.1 Tenant shall not install any signs, window or door lettering or
advertising media of any type in, on or about the Premises or any part thereof,
except for such tenant identification information as Landlord permits to be
included or shown on any directory maintained in the front lobby of the Building
and adjacent to the access door or doors to the Premises or such other items as
Landlord approves. Should Landlord agree in writing to any of the foregoing
items, Xxxxxx agrees to maintain same in good condition and repair at all times.
ARTICLE 8
COMMON AREAS
8.1 The use and occupation by Tenant of the Premises shall include the
use in common with others entitled thereto of the common areas. The term "common
areas" shall mean those portions of the Building intended for the common use of
all tenants including, among other facilities, the parking areas, service roads,
loading facilities, sidewalks, and such other facilities as may be designated by
Landlord from time to time as common areas, subject, however, to the terms and
conditions of this Lease and to the rules and regulations governing the use of
the common areas as prescribed from time to time by Landlord. Landlord shall
have the right from time to time to change the area, level, location and
arrangement of the common areas.
8.2 The common areas shall at all times be subject to the exclusive
control and management of Landlord. Landlord shall police the common areas and
maintain them in good condition and repair throughout the Lease Term.
8.3 All common areas and facilities, which Tenant may be permitted to
use are to be used under a revocable license, and if such areas are diminished,
Landlord shall not be subject to any liability nor shall Tenant be entitled to
any compensation or diminution or abatement of rent, nor shall the diminution of
such areas be deemed constructive or actual eviction.
8.4 Tenant shall have the right to park in the parking areas in common
with other tenants of the Building upon such terms and conditions established by
Landlord at any time during the Lease Term, including the imposition of a
reasonable parking charge if required by governmental authority or as otherwise
provided for in the Lease. Xxxxxx agrees not to overburden the parking areas and
agrees to cooperate with Landlord and the other tenants in use of the parking
areas. Landlord reserves the right in its absolute discretion to determine
whether the parking areas are becoming overburdened and to allocate and assign
parking spaces among Tenant and other tenants, and to reconfigure the parking
areas and modify the existing ingress to and egress from the parking areas as
Landlord shall deem appropriate.
ARTICLE 9
ALTERATIONS
9.1 Any leasehold improvements to the Premises contemplated by Landlord
and Tenant to be made prior to the commencement of the Lease Term shall be
performed in accordance with the provisions of Exhibit "E".
9.2 Other than any leasehold improvements to be made under Section 9.1,
Tenant shall not make, or allow to be made, any alterations, additions or
improvements to the Premises without the prior written approval of Landlord. All
alterations, additions or improvements installed on the Premises by either
party, including, without limitation, fixtures, but excluding readily movable
trade fixtures, shall become the property of Landlord at the expiration of the
Lease Term, unless Landlord requests their removal, in which event, Tenant shall
remove any such alterations, additions or improvements and restore the Premises
to its original condition at Tenant's expense.
9.3 Prior to commencing any construction work on the Premises, Tenant
must furnish to Landlord adequate plans and specifications for the written
approval of Landlord. Once approved, Tenant shall not modify the plans and
specifications without, again, obtaining the written approval of Landlord.
Landlord's approval of the plans and specifications shall not be deemed to be a
representation by Landlord that such plans and specifications comply with
applicable insurance requirements, building codes, ordinances, laws or
regulations.
9.4 All construction work shall be performed only by Landlord or by
contractors and subcontractors approved in writing by Landlord. If Landlord does
not perform the construction work, then Tenant shall cause all of its
contractors and subcontractors to procure and maintain insurance coverage
against such risks and in such amounts as Landlord may reasonably require and
with such companies as Landlord may reasonably approve. Landlord may also
require Tenant to furnish a payment and performance bond, reasonably
satisfactory to Landlord in an amount covering the cost of the construction
work, and/or require Tenant to obtain a waiver and release of liens from all
contractors and subcontractors prior to commencement of the construction work.
Xxxxxx agrees to indemnify Landlord and hold Landlord harmless against any loss,
liability or damage resulting from any such construction work performed by
Xxxxxx or on Xxxxxx's behalf.
9.5 All construction work by, or on behalf of, Tenant must be performed
in a good and workmanlike manner in accordance with the approved plans and
specifications, lien-free, and in compliance with all governmental laws and
requirements. Tenant shall only utilize new materials of a quality that is equal
or better than the quality of those materials already on the Premises.
9.6 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, including, but not limited
to, any work performed, materials furnished, or obligations incurred by or at
the request of Tenant for construction performed under the provisions of Exhibit
"E". If such a lien is filed, then Tenant shall, within ten (10) days after
Landlord has delivered notice of the filing to Tenant, either pay the amount of
the lien or diligently contest such lien, in which event, Tenant shall deliver
to Landlord a bond or other security reasonably satisfactory to Landlord. If
Tenant fails to timely take either such action, then Landlord may, at its
election, pay the lien claim without inquiry as to the validity thereof, and any
amounts so paid, plus Landlord's expenses and an administrative fee equal to
fifteen percent (15%) of the amount paid, shall be paid by Tenant to Landlord as
additional rental within ten (10) days after Landlord has delivered to Tenant an
invoice therefor. No work which Landlord permits Tenant to perform in the
Premises shall be deemed to be for the immediate use or benefit of Landlord so
that no mechanics or other lien shall be allowed against the estate of Landlord
by reason of its consent to such work.
ARTICLE 10
REPAIRS
10.1 Landlord shall not be required to make any repairs or replacements
of any kind or character on the Premises during the Lease Term except repairs to
the exterior walls, corridors, window, roof and other structural elements and
equipment of the Building, except when such repairs are caused by fire or other
casualty, in which event, the provisions of Article 13 shall govern and control.
Landlord shall not be responsible for termite, or other insect, or vermin
eradication. Subject to the provisions of any waiver contained in Section 12.2,
Landlord shall not be required to make any repairs occasioned by the acts or
negligence of Tenant, its agents, employees, contractors and invitees. Tenant
shall give immediate written notice to Landlord of the need for repairs or
corrections and Landlord shall have a reasonable time to make such repairs or
corrections. Xxxxxxxx's liability hereunder shall be limited to the cost of such
repairs or corrections. Tenant waives the provisions of any law permitting
Tenant the right to make repairs and deduct the expense of such repairs from the
rent due under the lease.
10.2 Landlord may, at its option and at the cost and expense of Tenant,
repair or replace any damage or injury done to the Building or any part thereof,
caused by Tenant, its agents, employees, contractors or invitees. Tenant shall
pay such costs, plus an administrative fee equal to fifteen percent (15%) of the
costs, to Landlord on the next date an installment of Base Rental is due
following notice from Landlord of the costs. Xxxxxx further agrees throughout
the Lease Term to maintain and keep the interior of the Premises in good repair
and condition at Tenant's expense.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
11.1 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 Sections 11.1(ii) through 11.1(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 obligations of Tenant hereunder;
however, any transferee of less than all of the space in the Premises shall be
liable only for the 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 Base Rental and other amounts due under this
Lease. Tenant authorizes its transferees to make payments of rent directly to
Landlord upon receipt of notice from Landlord to do so.
11.2 Landlord may, within thirty (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 Base Rental and other amounts 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.
11.3 Tenant shall pay to Landlord, immediately upon receipt thereof,
all compensation received by Tenant for a Transfer that exceeds the Base Rental
and other amounts due under the Lease, excluding any amount due under this
Section 11.3 and allocable to the portion of the Premises covered thereby.
11.4 Landlord may sell, transfer, assign or convey all or any part of
its interest in the Building and the Lease and, in the event Landlord assigns
its interest in this Lease, Landlord shall be released from any further
obligation and liabilities hereunder, and Xxxxxx agrees to attorn and look
solely to Xxxxxxxx's successor-in-interest for performance of such obligation.
ARTICLE 12
INSURANCE; WAIVERS; SUBROGATION; INDEMNITY
12.1 Tenant shall at its expense procure and maintain throughout the
Lease Term the following insurance policies: (i) commercial general liability
insurance in amounts of not less than $1,000,000 per occurrence, combined single
limit, 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)
casualty insurance, including "all risks" and fire and extended coverage
insurance covering the full value of Tenant's leasehold improvements, personal
property and other property (including the property of others), located in or on
the Premises, (iv) xxxxxxx'x compensation insurance, containing a waiver of
subrogation endorsement reasonably acceptable to Landlord, (v) comprehensive
automobile liability insurance, insuring Tenant, Landlord and Landlord's agents,
(vi) business interruption insurance, and (vii) such other insurance and in such
amounts as Landlord may reasonably require from time to time. 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
insurance and such other evidence satisfactory to Landlord of the maintenance of
all insurance coverages required hereunder prior to the Commencement Date, and
Tenant shall obtain a written obligation on the part of each insurance company
to notify Landlord at least thirty (30) days before cancellation or a material
change of any such insurance. All such insurance policies shall name Landlord as
additional insured or loss payee, as applicable, and otherwise shall be in form,
and issued by companies, reasonably satisfactory to Landlord and with
deductibles reasonably satisfactory to Landlord. Tenant's failure to maintain
any insurance hereunder shall constitute an Event of Default without any written
notice required of Landlord and, in such event, Landlord shall have the right,
but not the obligation, to purchase any insurance that has lapsed. Should
Landlord elect to purchase insurance on behalf of Tenant, then Tenant shall
reimburse to Landlord the cost of such insurance and an administrative fee of
fifteen percent (15%) of the amount of the premium within ten (10) days of the
date of the notice from Landlord seeking the reimbursement. The policy limits of
any insurance required to be carried by Tenant shall not limit the liability of
Tenant under this Lease.
12.2 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 waive any claim each 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 covered under any insurance policy that covers the
Building, the Premises, Xxxxxxxx'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 of the Lease, regardless that the
negligence or fault of the other party caused such loss; however, the waiver
shall not apply to the portion of any damage which is not reimbursed by the
damaged party's insurance by reason of the deductible in such party's insurance
coverage, 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.
12.3 Subject to the provisions of Section 12.2, Tenant shall defend,
indemnify, and hold harmless Landlord and its employees and agents from and
against all claims, demands, liabilities, causes of action, suits, judgments,
and expenses (including attorneys' fees) for any Loss arising from an occurrence
on the Premises or caused by or resulting from the condition of the Premises, or
from the acts or omissions of Tenant or Tenant's employees, agents, contractors
or invitees, or from Tenant's failure to perform any of its obligations under
this Lease (other than a Loss arising from the gross negligence or willful
misconduct of Landlord or its employees or agents), even though caused or
alleged to be caused by the joint, comparative, or concurrent negligence or
fault of Landlord or its employees and 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 employees and agents, provided that this indemnity
shall not apply to the gross negligence or willful misconduct of Landlord or its
employees or agents. This indemnity provision is intended to indemnify Landlord
and its employees and agents against the consequences of their own negligence or
fault (but not the gross negligence or willful misconduct of Landlord or its
employees or agents) as provided above when Landlord or its employees and agents
are jointly, comparatively, or concurrently negligent with Tenant.
12.4 Tenant shall not use, and shall not permit any subtenant,
licensee, concessionaire, employee, agent or invitee (hereinafter collectively
"Tenant's Representatives") to use, any portion of the Premises or Building, for
the placement, storage, manufacture, disposal or handling of any hazardous
materials (hereinafter defined) unless Tenant complies with all applicable
environmental laws (federal, state or local), including, but not limited to
those for obtaining proper permits. In the event Tenant or Tenant's
Representatives desire to use or place hazardous materials on the Premises it
shall notify Landlord in writing thirty (30) days prior to such proposed use or
placement, and provide the names of the hazardous materials, procedures to
insure compliance with the applicable environmental law and such other
information as Landlord may reasonably request.
In the event Tenant or Tenant's Representatives places, releases or
discovers any hazardous materials on the Premises or Building in violation of
applicable environmental laws, Tenant shall immediately notify Landlord of such
fact in writing within twenty-four (24) hours of the placement, release or
discovery. Tenant shall not attempt any removal, abatement or remediation of
those hazardous materials on the Premises in violation of applicable
environmental laws, without obtaining the additional written consent of
Landlord, which consent may be specifically conditioned on Landlord's right to
approve the scope, timing and techniques of any such work and the appointment of
all contractors, engineers, inspectors and consultants in connection with any
such work. Tenant shall be responsible for the cost of any removal, abatement
and remediation work of any hazardous materials placed, stored, manufactured,
disposed of or handled by Tenant or Tenant's Representatives on the Premises or
any other portion of the Building and for the cost of any removal, abatement or
remediation of any hazardous materials which might be disturbed or released as a
result of any remodeling or construction in the Premises by Tenant or Tenant's
Representatives. Such costs shall include, without limitation, the cost of any
supervision by Landlord, its employees or agents, in connection with such work.
Tenant shall comply with all environmental laws in connection with any such
removal.
Tenant shall indemnify Landlord, its shareholders, directors, officers,
employees and agents and hold them harmless, from and against any loss, damage
(including, without limitation, a loss in value of the Building or damages due
to restrictions on marketing contaminated space), cost, liability or expense
(including reasonable attorneys' fees and expenses and court costs) arising out
of the placement, storage, use, manufacture, disposal, handling, removal,
abatement or remediation of any hazardous materials by Tenant or Tenant's
Representatives on the Premises or Building, or any removal, abatement or
remediation of any hazardous materials required hereunder to be performed or
paid for by Xxxxxx, with respect to any portion of the Premises or the Building,
or arising out of any breach by Tenant of its obligations under this paragraph.
The term "hazardous materials" as used herein shall mean (i) any
"hazardous waste" as defined by the Resource Conservation and Recovery Act of
1976 (42 U.S.C. Section 6901 et seq.), as amended from time to time, and
regulations promulgated thereunder; (ii) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Section 9601, et seq.), as amended from time to time, and regulations
promulgated thereunder; (iii) asbestos or polychlorinated biphenyls; (iv) any
substance the presence of which on the Building or on the Premises is prohibited
or regulated by any federal, state or local law, regulation, code or rule; and
(v) any other substance which requires special handling or notification of any
federal, state or local governmental entity in its collection, storage,
treatment, or disposal.
12.5 The indemnification provisions contained in Article 12 shall
survive the termination of this Lease.
ARTICLE 13
FIRE AND CASUALTY
13.1 If the Premises or or Building or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord and Landlord may, at its option, terminate this Lease by
notifying Tenant in writing of such termination within sixty (60) days after the
date of such damage, in which event the rent hereunder shall be abated as of the
date of such damage. If Landlord does not elect to terminate this Lease,
Landlord shall as soon as reasonably practical after the date of such damage
commence to repair and restore the Building with reasonable diligence (except
that Landlord shall not be responsible for delays outside its control) to
substantially the same condition in which it was immediately prior to the
happening of the casualty, except that Landlord shall not be required to
rebuild, repair or replace any part of Tenant's leasehold improvements (except
to the extent originally paid by Landlord), furniture, furnishings or fixtures
and equipment removable by Tenant under the provisions of this Lease, and the
Lease Term will be extended by the period of time equal to the time to repair
and restore the damage. Xxxxxx agrees to rebuild and restore any leasehold
improvements to the extent not required of Landlord. Tenant shall commence any
such work upon written notice from Landlord. Any insurance which may be carried
by Landlord or Tenant against loss or damage to the Building or to the Premises
shall be for the sole benefit of the party carrying such insurance and under its
sole control.
13.2 Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
or the repair thereof. Subject to the provisions of the remainder of this
paragragh, Landlord shall allow Tenant a fair diminution of rent during the time
and to the extent the Premises are unfit for occupancy. The diminution of rent
shall expire on the date Landlord delivers the Premises to Tenant ready for
occupancy (if Landlord originally provided the leasehold improvements) or (ii)
on the date following an equivalent time allowed Tenant for the construction of
leasehold improvements after Landlord delivered the Premises to Tenant ready for
Tenant to rebuild its leasehold improvements, as contemplated in Exhibit "E" (if
Tenant originally provided the leasehold improvements). If the Premises or any
other portion of the Building is damaged by fire or other casualty resulting
from the fault or negligence of Tenant or any of Tenant's agents, employees or
invitees, the rent hereunder shall not be diminished during the repair of such
damage and Tenant shall be liable to Landlord for the cost and expense of the
repair and restoration of the Building caused thereby to the extent such costs
and expenses are not covered by insurance proceeds.
ARTICLE 14
CONDEMNATION
14.1 If all of the Building should be taken for any public or
quasi-public use under any governmental law, ordinance or regulation or by right
of eminent domain or by private purchase in lieu thereof, this Lease shall
terminate and the rent shall be abated during the unexpired portion of the Lease
Term, effective on the date physical possession is taken by the condemning
authority, and Tenant shall have no claim against Landlord for the value of any
unexpired Lease Term.
14.2 In the event a portion but not all of the Building shall be taken
for any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain, by private sale in lieu thereof and
the partial taking or condemnation shall render the Building unsuitable for
continued operation, then Landlord shall have the option, in its sole
discretion, of terminating this Lease or, at Xxxxxxxx's sole risk and expense,
restoring and reconstructing the Building to the extent necessary to make same
reasonably tenantable. Should Landlord not elect to terminate this Lease, then
Landlord shall restore the Premises and the Lease shall continue in full force
and effect with the rent payable during the unexpired portion of this Lease
being adjusted to such an extent as may be fair and reasonable under the
circumstances, and Tenant shall have no claim against Landlord for the value of
any interrupted portion of this Lease.
14.3 Landlord shall be entitled to receive all of the compensation
awarded upon a condemnation (or the proceeds of a private sale in lieu thereof)
of all or any part of the Building or the Premises, including any award for the
value of any unexpired Lease Term, and Tenant hereby assigns to Landlord and
expressly waives all claim to any such compensation. However, Tenant reserves
for itself any separate award made for relocation cost or loss of any of
Tenant's trade fixtures, provided no such award shall diminish the amount that
would otherwise be awarded to Landlord.
ARTICLE 15
SUBORDINATION, ATTORNMENT, ESTOPPEL
15.1 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"), including any
modifications, renewals or extensions of such Mortgage or Primary Lease.
Notwithstanding the foregoing, Xxxxxx agrees that any such Landlord's Mortgagee
shall have the right at any time to subordinate such Mortgage or Primary Lease
to this Lease on such terms and subject to such conditions as Landlord's
Mortgagee may deem appropriate in its discretion. Xxxxxx agrees upon demand to
execute such further instruments subordinating this Lease or attorning to the
Landlord's Mortgagee as Landlord may request. In the event that Xxxxxx should
fail to execute any subordination or other agreement required by this paragraph,
promptly as requested, Tenant hereby irrevocably constitutes Landlord as its
attorney in fact to execute such instrument in Tenant's name, place and stead,
it being agreed that such power is one coupled with an interest.
15.2 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.
15.3 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 Xxxxxxxx's Mortgagee a reasonable opportunity to perform
Landlord's obligations hereunder.
15.4 Tenant agrees that, within ten (10) days of written request by
Xxxxxxxx, it will execute and deliver to such persons as Landlord shall request
a statement in recordable form certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as so modified), stating the dates to which rent and other
charges payable under this Lease have been paid, stating that Landlord is not in
default hereunder (or if Tenant alleges a default stating the nature of such
alleged default) and further stating such other matters as Landlord shall
reasonably require.
ARTICLE 16
EVENTS OF DEFAULT
16.1 The following shall be deemed to be Events of Default by Tenant
under this Lease:
(a) Tenant shall fail to pay any installment of Base Rental or any
other rent or monetary sum when due under the provisions of the Lease.
(b) Tenant shall fail to comply with any term, provision or covenant of
this lease, other than the payment of a monetary sum, and such failure shall not
be cured within ten (10) days after written notice thereof to Tenant.
(c) Tenant or any guarantor of Tenant's obligations under this Lease
shall become insolvent, or shall make a transfer in fraud of creditors, or shall
make an assignment for the benefit of creditors.
(d) Tenant or any guarantor of Tenant's obligations under this Lease
shall file a petition under any state or federal bankruptcy or other insolvency
statutes or Tenant or any guarantor of Tenant's obligations under this Lease
shall be adjudged bankrupt or insolvent in proceeding filed against Tenant or
guarantor thereunder and such adjudication shall not be vacated or set aside
within thirty (30) days.
(e) A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any guarantor of the obligations of Tenant under
this Lease and such receivership shall not be terminated or stayed within thirty
(30) days.
(f) Tenant shall do or permit to be done anything which creates a lien
upon the Premises or upon all or any part of the Building.
(g) Tenant shall desert or vacate any substantial portion of the
premises.
ARTICLE 17
REMEDIES
17.1 Upon the occurrence of an Event of Default, Landlord shall have
the option to pursue any one or more of the following remedies without any
notice or demand whatsoever, except if required by applicable law:
(a) Terminate this Lease in which event Xxxxxx shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
damages, enter upon and take possession and expel or remove Tenant and any other
person who may be occupying said Premises or any part thereof without being
liable for prosecution or any claim for damages therefor, and Xxxxxx agrees to
pay to Landlord, as hereinafter set forth in Section 17.2, on demand the amount
of all loss and damage which Landlord may suffer by reason of such termination,
whether through inability to relet the Premises on satisfactory terms or
otherwise.
(b) Terminate Xxxxxx's right to possession of the Premises, but not the
Lease, in which event Xxxxxx shall immediately surrender the Premises to
Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any
other remedy which it may have for possession or damages, enter upon and take
possession of the Premises and expel or remove Tenant and any other person who
may be occupying the Premises or any part thereof without being liable for
prosecution or any claim for damages therefor and Xxxxxx agrees to pay to
Landlord, as hereinafter set forth in Section 17.2, on demand the amount of all
loss and damage which Landlord may suffer by reason of such termination, whether
through inability to relet the Premises on satisfactory terms or otherwise.
(c) Enter upon the Premises, without terminating the Lease or Xxxxxx's
right to possession and without being liable for prosecution or any claim for
damages therefor, and do whatever Tenant is obligated to do under the provisions
of this Lease, and Xxxxxx agrees to reimburse Landlord on demand for any
expenses which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease, plus an administrative fee equal to fifteen
percent (15%) of any expenses incurred by Landlord, and Xxxxxx further agrees
that Landlord shall not be liable for any damages resulting to the Tenant for
such action.
(d) Not to re-enter the Premises or terminate the Lease, but to allow
Tenant to remain in possession of the Premises, and bring suit against Tenant to
collect the monthly rents and other charges provided in this Lease as they
accrue. Landlord shall have a right to allow such deficiencies of monthly rents
and other charges provided in this Lease to accumulate and to bring an action on
several or all of the accrued deficiencies at one time. Any such suit shall not
prejudice in any way the right of Landlord to bring a similar action for any
subsequent deficiency or deficiencies.
Tenant agrees that any re-entry into the Premises under the provisions
of subpart (b) of this Section shall not be deemed a termination of the Lease or
an acceptance of the surrender thereof, unless Landlord shall have notified
Tenant in writing that it has so elected to terminate the Lease. Xxxxxx also
agrees that any notice pursuant to an action for forcible detainer or eviction
shall not be deemed to be a termination of the Lease unless Landlord shall have
also notified Tenant in writing that it has so elected to terminate the Lease.
Any election of the remedy provided in subpart (b) of this Section shall not
preclude the subsequent election by Landlord of the remedy under subpart (a) of
this Section.
Should Landlord elect to re-enter the Premises under the provisions of
subparts (a) or (b), Landlord shall make reasonable efforts to relet the
Premises. Nothing herein, however, shall prohibit Landlord from leasing any
other vacant space in the Building before leasing the Premises, or from using
its business judgment in respect to the releasing of the Premises. In this
regard, Landlord shall not be required to relet the Premises in part, rather
than a whole, or for a rental rate less than the rental rate then being offered
to prospective tenants for other space in the Building.
17.2 Should Landlord at any time terminate this Lease or Tenant's right
to possession for an Event of Default, Landlord shall recover from Tenant, and
Tenant shall be liable and pay to Landlord, as damages a sum equal to the
following:
(i) the unpaid monthly rents and other charges provided in this Lease
and which accrued prior to the date of termination;
(ii) an amount equal to the following:
(A) Until Landlord is able, through reasonable efforts, to relet the
Premises under terms satisfactory to Landlord, in its sole discretion, Tenant
shall pay to Landlord on or before the first day of each calendar month, the
monthly rentals and other charges provided in this Lease. If and after the
Premises have been relet by Landlord, Tenant shall pay to Landlord on the
twentieth (20th) day of each calendar month the difference between the monthly
rentals and other charges provided in this Lease for such calendar month and
that actually collected by Landlord for such month. If it is necessary for
Landlord to bring suit in order to collect any deficiency, Landlord shall have a
right to allow such deficiencies to accumulate and to bring an action on several
or all of the accrued deficiencies at one time. Any such suit shall not
prejudice in any way the right of Landlord to bring a similar action for any
subsequent deficiency or deficiencies. Any amount collected by Landlord from
subsequent tenants for any calendar month in excess of the monthly rentals and
other charges provided in this Lease, shall be credited to Xxxxxx, first, in
reduction of Tenant's liability for any calendar month for which the amount
collected by Landlord will be less than the monthly rentals and other charges
provided in this Lease and, then, against Xxxxxx's liability for any other
damages of Landlord hereunder, and Xxxxxx shall have no right to any excess
other than the above-described credits; and
(B) When Landlord desires, Landlord may demand a final settlement, in
which event, Landlord shall have a right to, and Tenant hereby agrees to pay,
the difference between (1) the total monthly rents and other charges provided in
this Lease for the remainder of the Lease Term, and (2) the fair rental value of
the Premises for such period (determined as of the time of the final settlement)
such difference discounted to present value using the prime rate published in
the Wall Street Journal for the region in which the Building is located on the
date of the final settlement; and
(iii) all other damages which Landlord may demonstrate it incurred,
including, without limitation, any and all costs of retaking the Premises,
costs of maintaining and preserving the Premises after such retaking, and
costs of reletting the Premises, such as costs to repair or remodel the
Premises and to pay leasing commissions.
If Landlord elects to exercise the remedy prescribed in Section
17.2(ii) (A) above, this election shall not prejudice Landlord's right at any
time thereafter to cancel said election in favor of the remedy prescribed in
Section 17.2 (ii) (B) above.
As used in Article 17, the phrase "the monthly rentals and other
charges provided in this Lease" shall mean the monthly amount of Base Rental
plus the monthly amount of Tenant's Pro Rata Share of Excess Basic Costs. If
Landlord demands a final settlement, then Landlord shall have the right to
estimate Tenant's Pro Rata share of Excess Basic Costs for the remainder of the
Lease Term.
Any past due monthly rents and other charges provided in this Lease
shall bear interest at the Default Interest rate, defined elsewhere in the
Lease.
17.3 Upon the occurrence of an Event of Default, Landlord may alter all
locks and security devices at the Premises and will not be obligated to return
the key to Tenant if Landlord has elected either to terminate this Lease under
Section 17.1(a) or permanently repossess the Premises under Section 17.1(b). If
Landlord alters all locks and security devices at the Premises because of an
Event of Default without electing either to terminate this Lease or permanently
repossess the Premises, then Landlord shall return the key to Tenant only during
the regular business hours of Landlord's property manager and only in the event
Tenant has paid the rent or otherwise performed the obligations necessary to
cure the Event of Default and, further, Tenant provides reasonable assurances to
Landlord evidencing Tenant's ability to perform its remaining obligations under
this Lease. In the event Landlord alters the locks and the keys are not returned
to Tenant, then, upon the prior written request of Tenant accompanied by such
releases and waivers as Landlord may require, Landlord, at its option, may (i)
escort Tenant to the Premises to retrieve personal belongings and other property
not subject to Landlord's lien and security interest, or (ii) obtain from Tenant
a list of such personal belongings and personal property and advise Tenant of a
time and place where such items will be made available to Tenant. If Landlord
elects the latter option, then Tenant shall reimburse to Landlord the cost of
moving and/or storing the items prior to Landlord's making same available to
Tenant.
17.4 Should Landlord re-enter and take possession of the Premises,
Landlord may, with respect to any and all furniture, fixtures, equipment and
other personal property located on the Premises, exercise one or more of the
following rights: (i) sell the personal property pursuant to any lien retained
by Landlord; (ii) remove the personal property from the Premises (without the
necessity of obtaining a distress warrant, writ of sequestration or other legal
process) and place same in storage and, in such event, Tenant shall be liable to
Landlord for costs incurred by Landlord in connection with such removal and
storage and shall indemnify and hold Landlord harmless from all loss, damage,
cost, expense and liability in connection with such removal and storage; or
(iii) dispose of any of the personal property. Should Landlord elect to dispose
of any of the personal property, whether or not such personal property was first
placed in storage, Landlord shall give Tenant written notice at Tenant's last
known address advising Tenant that Landlord will dispose of the personal
property unless Tenant retrieves same within five (5) days from the date of the
notice and pays to Landlord any costs incurred for storage and/or removal.
Landlord shall also have the right to relinquish possession of all or any
portion of such personal property to any person claiming to be entitled to
possession thereof who presents to Landlord a copy of any instrument represented
to Landlord by such person to grant such person the right to take possession of
such personal property, without the necessity on the part of Landlord to inquire
into the authenticity of the copy of the instrument or of Tenant's or Xxxxxx's
predecessor's signature thereon and without the necessity of Landlord's making
any nature of investigation or inquiry as to the validity of the factual or
legal basis upon which such person purports to act; and Xxxxxx agrees to
indemnify and hold Landlord harmless from all cost, expense, loss, damage and
liability incident to Xxxxxxxx's relinquishment of possession of all or any
portion of such furniture, fixtures, equipment of other personal property to the
person. The rights of Landlord herein stated shall be in addition to any and all
other rights which Landlord has or may hereafter have a law or in equity, and
Tenant stipulates and agrees that the rights herein granted Landlord are
commercially reasonable. Tenant knowingly and irrevocably waives any claims it
may have against Landlord arising from Landlord's removal and storage of
Tenant's personal property in accordance with the provisions of this paragraph.
17.5 No re-entry or taking possession of the Premises by Landlord shall
be construed as an election on its part to terminate this Lease, unless a
written notice of such intention shall be given to Tenant. Notwithstanding any
such re-entry or taking possession of the Premises, Landlord may at any time
thereafter elect to terminate this Lease by reason of the Event of Default.
Pursuit of any of the remedies set forth in Article 17 shall not preclude
pursuit of any of the other remedies in Article 17 or any others provided in
this Lease or any other remedies provided by law or in equity. The specific
remedies to which Landlord may resort under this Lease are cumulative and are
not intended to be exclusive of any other remedies to which Landlord may be
lawfully entitled in case of a breach or threatened breach of the Lease. In
addition to any other remedies provided in the Lease, Landlord shall be entitled
to seek injunctive relief to restrain any violation or threatened violation of
the covenants, conditions or provisions of this lease or to compel specific
performance. The pursuit of any remedy provided in this Lease shall not
constitute a forfeiture or waiver of any rent due to Landlord under this Lease
or of any damages accruing to Landlord by reason of the violation of any of the
terms, provisions and covenants contained in this Lease. Xxxxxxxx's acceptance
of rent following an Event of Default hereunder shall not be construed as
Landlord's waiver of such Event of Default unless such waiver is expressly
stated in writing signed by Landlord. No waiver by Landlord of any violation or
breach of the terms, provisions, and covenants of the Lease shall be deemed or
construed to constitute a waiver of any other violation or breach of any of the
terms, provisions, and covenants of the Lease. No consent by Landlord to any act
of Tenant under this Lease shall be deemed to waive or render unnecessary
consent to any subsequent or similar act. Forbearance by Landlord to enforce one
or more of the remedies herein provided upon an Event of Default shall not be
deemed or construed to constitute a waiver of any other violation or Event of
Default.
17.6 Landlord and Tenant hereby irrevocably waive, to the extent
permitted by law, any right to trial by jury in any lawsuit, action, proceeding,
or counterclaim brought by either party hereto against the other on any matter
arising out of or connected with this Lease, the acts or omissions of Landlord
or Tenant in connection with this Lease, or Xxxxxx's occupancy and use of the
Premises and the Building.
17.7 Tenant shall not for any reason withhold or reduce Tenant's
required payments of rent and other charges provided in this Lease, it being
agreed that the obligations of Landlord under this Lease are independent of
Tenant's obligations except as may be otherwise expressly provided. The
immediately preceding sentence shall not be deemed to deny Tenant the pursuit of
all rights granted it under this Lease or at law; however, at the direction of
Landlord, Xxxxxx's claims in this regard shall be litigated in proceedings
different from any litigation involving rent claims or other claims by Landlord
against Xxxxxx (i.e., each party may proceed to a separate judgment without
consideration, counterclaim or offset as to the claims asserted by the other
party).
17.8 In the event of any default described in subsection (d) of Section
16.1 of this Lease, any assumption and assignment must conform with the
requirements of the Bankruptcy Code which provides, in part, that the Landlord
must be provided with adequate assurance of the following: (i) that the proposed
assignee has sources to pay monthly rents and any other charges due under this
Lease; (ii) that the financial condition and operating performance of any
proposed assignee and its guarantors, if any, shall be similar to the financial
condition and operating performance of Tenant and its guarantors, if any, as of
the date of execution of this Lease; (iii) that any percentage rent due under
this Lease will not decline substantially; (iv) that any assumption or
assignment is subject to all of the provisions of this Lease (including, but not
limited to, restrictions as to use) and will not breach any such provision
contained in any other Lease, financing agreement or other agreement relating to
the Building; and (v) that any assumption or assignment will not disrupt any
tenant mix or balance in the Building.
(a) In order to provide Landlord with the assurance contemplated by the
Bankruptcy Code, Tenant must fulfill the following obligations, in addition to
any other reasonable obligations that Landlord may require, before any
assumption of this Lease is effective: (i) all defaults under subsection (a) of
Section 16.1 of this Lease must be cured within ten (10) days after the date of
assumption; (ii) all other defaults under Section 16.1 of this Lease other than
under subsection (d) of Section 16.1 must be cured within ten (10) days after
the date of assumption; (iii) all actual monetary losses incurred by Landlord
(including, but not limited to, reasonable attorneys' fees) must be paid to
Landlord within ten (10) days after the date of assumption; and (iv) Landlord
must receive within ten (10) days after the date of assumption a Security
Deposit in the amount of six (6) months Base Rental (using the Base Rental in
effect for the first full month immediately following the assumption) and an
advance prepayment of Base Rental in the amount of three (3) months Base Rental
(using the Base Rental in effect for the first full month immediately following
the assumption), both sums to be held by Landlord in accordance with the other
provisions of this Lease, including, without limitation, Section 4.3, and deemed
to be rent under this Lease for the purposes of the Bankruptcy Code as amended
and from time to time in effect.
(b) In the event this Lease is assumed in accordance with the
requirements of the Bankruptcy Code and this Lease, and is subsequently
assigned, then, in addition to any other reasonable obligations that Landlord
may require and in order to provide Landlord with the assurances contemplated by
the Bankruptcy Code, Landlord shall be provided with the following: (i) a
financial statement of the proposed assignee prepared in accordance with
generally accepted accounting principles consistently applied, though on a cash
basis, which reveals a net worth in an amount sufficient, in Landlord's
reasonable judgment, to assure the future performance by the proposed assignee
of Tenant's obligations under this Lease; or (ii) a written guaranty by one or
more guarantors with financial ability sufficient to assure the future
performance of Tenant's obligations under this lease, such guaranty to be in
form and content satisfactory to Landlord and to cover the performance of all of
Tenant's obligations under this Lease.
ARTICLE 18
LANDLORD'S DEFAULT
18.1 Landlord shall be in default under the Lease if Landlord has not
begun and pursued with reasonable diligence the cure of any failure of Landlord
to meet its obligations under the Lease within thirty (30) days of the receipt
by Landlord of written notice from Tenant of the alleged failure to perform.
Tenant hereby waives any right to terminate or rescind this Lease as a result of
Xxxxxxxx's default as to any covenant or agreement contained in this Lease or as
a result of the breach of any promise or inducement hereof, whether in this
Lease or elsewhere and Tenant hereby agrees that Xxxxxx's sole remedies for
default hereunder and for breach of any promise or inducement shall be limited
to a suit for damages and/or injunctive relief. In addition, Tenant hereby
covenants that, prior to the exercise of any such remedies, it will give the
mortgagees holding mortgages on the project notice and a reasonable time to cure
any default by Landlord.
18.2 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. Xxxxxx agrees to look solely to the estate
and interest of Landlord in the Building for the collection of any judgment or
other judicial process requiring the payment of money by Landlord in the event
of a default or breach by Landlord with respect to this Lease, and no other
assets of Landlord shall be subject to levy of execution or other procedures for
the satisfaction of Xxxxxx's rights. 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.
ARTICLE 19
LANDLORD'S CONTRACTUAL LIEN
19.1 Landlord shall have, at all times, a valid security interest in
and upon the present and future receivables of Tenant and all goods, wares,
equipment, fixtures, furniture, improvements and other personal property of
Tenant presently or which may hereafter be situated on the Premises, and all
proceeds therefrom, and such property shall not be removed therefrom without the
consent of Landlord until all arrearage in rent as well as any and all other
sums of money then due to Landlord hereunder shall first have been paid and
discharged and all the covenants, agreements and conditions hereof have been
fully complied with and performed by Xxxxxx. This contractual lien is in
addition to any and all liens in favor of Landlord and arising under law or
otherwise and is given to secure payment of all rent and other sums of money
becoming due under the Lease from Tenant and to secure payment of any damages or
loss which Landlord may suffer by reason of the breach by Tenant of any
covenant, agreement or condition contained herein and shall survive any
termination of this Lease by reason of a default by Xxxxxx. Upon the occurrence
of any Event of Default by Tenant, Landlord may, in addition to any other
remedies provided herein, enter upon the Premises and take possession of any and
all goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant situated on the Premises, without liability for
trespass or conversion, store same (on or off the Premises or Project) and sell
the same at public or private sale, with or without having such property at the
sale, after giving Tenant reasonable notice of the time and place of any public
sale or of the time after which any private sale is to be made, at which sale
the Landlord or its assigns may purchase unless otherwise prohibited by law.
Without intending to exclude any other manner of giving Tenant reasonable
notice, the requirement of reasonable notice shall be met if such notice is
given in the manner prescribed in this Lease at least five (5) days before the
time of sale unless otherwise required by law. The proceeds from any such
disposition, less any and all expenses connected with the taking of possession,
holding and selling of the property (including reasonable attorneys' fees and
other expenses), shall be applied as a credit against the indebtedness secured
by the security interest granted in this section. Any surplus shall be paid to
Tenant or as otherwise required by law; and the Tenant shall pay any
deficiencies forthwith. Upon request by Xxxxxxxx, Xxxxxx agrees to execute and
deliver to Landlord within ten (10) days of such request a financing statement
in form sufficient to perfect the security interest of Landlord in the
aforementioned property and proceeds thereof under the provisions of the Uniform
Commercial Code in force in the State of Texas. Landlord may also file a copy of
this Lease to perfect its interest in the personal property of Xxxxxx described
above.
ARTICLE 20
SURRENDER OF PREMISES; HOLDING OVER
20.1 No act by Xxxxxxxx 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 "broom-clean" and 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 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 at any time, thereafter,
without notice to Tenant and without any obligation to account for such items.
If Landlord incurs any cost in the storage or removal of any such items, Tenant
shall pay to Landlord on demand any and all such charges. The provisions of this
paragraph shall survive the expiration or termination of the Lease.
20.2 If Tenant, or any party under Tenant claiming rights to the Lease,
fails to vacate the Premises at the end of the Lease Term, then such possession
shall be an unlawful detainer (Landlord reserving the right to seek an eviction
or removal), no tenancy shall be created, and Tenant shall pay each day during
any holdover period a daily Base Rental equal to the greater of (a) one
thirtieth (1/30th) of one hundred fifty percent (150%) of the monthly Base
Rental payable during the last month of the Lease Term, or (b) the prevailing
rental rate for similar space in the Building, plus, Tenant shall pay any
additional rental due under the other provisions of this Lease during any such
holdover period. In addition to payment of rent, Tenant shall pay to Landlord
all other damages to which Landlord may be entitled as a result of Xxxxxx's
holding over.
ARTICLE 21
RIGHT OF ACCESS
21.1 Landlord or Landlord's representatives shall have the right to
enter into and upon the Premises at any and all reasonable times (i) to inspect,
clean or make repairs or alterations or additions to the Premises as Landlord
may deem necessary (but without any obligation to do so, except as expressly
provided elsewhere in the Lease), or (ii) to show the Premises to prospective
tenants, purchasers or lenders; and Tenant shall not be entitled to any
abatement or reduction of rent by reason thereof, nor shall any such entry be
deemed to be an actual or constructive eviction.
ARTICLE 22
SUBSTITUTION SPACE
22.1 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").
22.2 If Landlord exercises such right by giving Tenant notice thereof
("Substitution Notice") at least sixty (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 Lease Term shall be less than one (1) year,
then the Lease Term shall be extended so that it shall be one (1) year from the
Substitution Commencement Date (defined below), and (B) if the Substitution
Space contains more square footage than the Premises, then the Base Rental then
in effect shall be increased proportionately (provided that such increase shall
not exceed 105% of the Base Rental due for the Premises) and shall be subject to
adjustment as herein provided. The effective date of such substitution (the
"Substitution Commencement 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 this Article, 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 Commencement Date shall not be extended and Tenant shall pay rent
for the Substitution Space beginning on the date specified in the Substitution
Notice.
22.3 Tenant may either accept possession of the Substitution Space in
its "as is" condition as of the Substitution Commencement 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 (10) 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 22.2, if the then unexpired balance of the Term is
less than three (3) years, then the Term shall be extended so that it continues
for three (3) years from the Substitution Commencement Date, and (ii) Tenant
shall continue to occupy the Premises (upon all of the terms of this Lease)
until the Substitution Commencement Date.
22.4 Tenant shall move from the Premises into the Substitution Space
and shall surrender possession of the Premises as provided in Section 20.1 by
the Substitution Commencement Date. If Tenant occupies the Premises after the
Substitution Commencement Date, then Tenant'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
Base Rental for the Premises as provided in Section 20.2 and all other rent due
therefor until such occupancy ends; such amounts shall be in addition to the
rent due for the Substitution Space.
22.5 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 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 and equal amount
of carpeting of the same or equivalent quality and color.
ARTICLE 23
MISCELLANEOUS
23.1 Attorneys' Fees. In case it should be necessary or proper for one
party to bring an action under this Lease against the other , then the party
which does not prevail agrees in each and any such case to pay to the party
which prevails its reasonable attorneys' fees. Furthermore, should it be
necessary for Landlord to consult an attorney for the enforcement of any of
Landlord's rights hereunder (including seeking payment of any amounts due under
the Lease) without the necessity of bringing an action, then Tenant,
nonetheless, agrees in such event to pay to Landlord its reasonable attorneys'
fees.
23.2 Taxes. 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.
23.3 Name. Tenant shall not, without the written consent of Landlord,
use the name of the Building for any purpose other than as the address of the
business to be conducted by Tenant in the Premises. In no event shall Tenant
acquire any rights in or to such name and Landlord reserves the right from time
to time and at any time to change the name of the Building.
23.4 Financial Statements. Prior to the execution of this Lease, Xxxxxx
has delivered financial statements to Landlord, prepared by a certified public
accountant and certified to be true and correct in all material aspects. Xxxxxx
further agrees to deliver to Landlord updated financial statements from time to
time within ten (10) days of Landlord's written request, each financial
statement certified to be true and correct in all material aspects by an
authorized person on behalf of Tenant.
23.5 Brokerage. Landlord and Tenant each warrant to the other that it
has not dealt with any broker or agent in connection with the negotiation or
execution of this Lease, other than the person(s) listed in the Basic
Definitions and Lease Provisions of this Lease (the "Broker(s)"). Except for any
Broker(s) who shall be compensated in accordance with the provisions of a
separate agreement, Landlord and Tenant each agree to indemnify the other
against all costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any other broker or agent claiming
the same by, through, or under the indemnifying party.
23.6 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.
23.7 Force Majeure. 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, 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. The
foregoing shall not excuse, however, the timely payment of rent by Tenant under
the provisions of this Lease.
23.8 Notices. All notices and other communications given by one party
to the other under the provisions of this Lease shall be in writing, addressed
to the party at the address provided in the Basic Definitions and Lease
Provisions, and shall be by one of the following: (i) mailed by first class,
United States Mail, postage prepaid, certified, with return receipt requested,
(ii) hand delivered by courier 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 shall be effective three (3) 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.
23.9 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.
23.10 Severability. 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 of provision
as similar in terms to such illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid, and enforceable.
23.11 Amendments; Construction 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 thereof 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 or a successor thereto, no third party shall be deemed a beneficiary
hereof.
23.12 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.
23.13 Recording. Tenant shall not record or permit to be recorded in
the official records of the county where the Premises are located the Lease or
any memorandum of lease or other document giving notice of the existence of the
Lease.
23.14 Time of Essence. Except as otherwise expressly provided in this
Lease, time is of the essence.
23.15 Governing Law; Venue. The laws of the state in which the Building
is located shall govern the interpretation, validity, performance and
enforcement of this Lease. Venue for any action under this Lease shall be the
county in which rentals are due.
23.16 Authority. If Tenant is a corporation or partnership, the person
executing the Lease on behalf of Tenant hereby represents and warrants that (i)
he is duly authorized and empowered to execute the Lease on behalf of Tenant,
(ii) Tenant has full right and authority to enter into this Lease, and (iii)
upon full execution, this Lease constitutes a valid and binding obligation of
Tenant.
23.17 Approval. Any approval of Landlord required under the provisions
of this Lease must be in writing or it shall not be deemed to be effective and,
if not in writing, then in the making of proof thereof, Landlord shall be
presumed not to have given its approval.
23.18 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 Premises or any interest in
such fee estate.
23.19 No Partnership. Nothing in this Lease shall be deemed or
construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of computation of rent, nor any other provision contained herein, nor any
acts of the parties hereto, shall be deemed to create any relationship between
the parties hereto other than the relationship of landlord and tenant.
23.20 No Offer. The submission of this Lease by Landlord to Tenant for
examination shall not be construed as an offer to lease or a reservation of an
option to lease. Further, it is the intention of the parties that Landlord shall
not be bound and Tenant shall not have any rights under this Lease unless and
until Landlord executes a copy of this Lease and delivers it to Tenant.
23.21 Exhibits. All exhibits and attachments attached hereto are
incorporated herein by this reference.
Exhibit A - Legal Description
Exhibit B - Outline of Premises
Exhibit C - Operating Expense Reimbursement
Exhibit D - Building Rules and Regulations
Exhibit E - Work Letter
Exhibit F - Commencement Date Letter
Exhibit M - Special Conditions
23.22 Entire Agreement. This Lease, including all exhibits attached
hereto, 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, Landlord's agent or
Tenant, anyone of the foregoing to the other with respect to this Lease or the
obligations to Landlord or Tenant in connection therewith.
EXECUTED to be effective on the day and date first written above.
LANDLORD:
AETNA LIFE INSURANCE COMPANY
By: Allegis Realty Investors LLC,
Its Investment Advisor and Agent
By:
-----------------------------
Printed Name: Xxxxx X. Xxxxxx
Title: Vice President
ATTEST: TENANT:
PHYMED, INC., a Texas Corporation
By:
--------------------------- -----------------------------
(Title) Printed Name: Xxxxxx Xxxxxx
Title: President
EXHIBIT "A"
LEGAL DESCRIPTION
COMMERCE PLAZA HILLCREST
BEING block A/7467, Hillcrest 635 Addition, an Addition to the City of Dallas,
Dallas County, Texas, as recorded in Volume 71021, Page 2073-2080, Map Records,
Dallas County, Texas, and being out of the XXXXX XXXXXXX SURVEY, Abstract No.
1568:
BEGINNING at a point for a corner in the East right of way line of Hillcrest
Road with its intersection with the Southerly right of way line of Interstate
Highway 635;
THENCE South 82 degrees 15' 12" East, along the said Southerly Line of
Interstate Highway 635, 1136.34 feet to a point to a corner;
THENCE South 17 degrees 29' 31" East along the encroachment limit line on the
West side of White Rock Creek, 340.62 feet to a point for a corner in the South
Line of City of Dallas Block No. 7467 and in the North Line of City of Dallas
Block 7466;
THENCE North 89 degrees 00' 00" West, along the North Line of City of Dallas
Block No. 7466,1249.71 feet to a point for a corner in the East right of way
line of Hillcrest Road, said right of way being 60.00 feet in width;
THENCE North 00 degrees 09' 18" East, along said East Line of Hillcrest Road,
378.08 feet to a point for a corner;
THENCE South 89 degrees 57' 07" East, continuing along the East Line of
Hillcrest Road, 20.00 feet to a point for a corner;
THENCE North 00 degrees 06' 33" East, continuing along the East Line of
Hillcrest Road 78.18 feet to the POINT OF BEGINNING and containing 463,313.34
square feet or 10.636 acres of land, more or less.
And now known as Block A/7467, Hillcrest 635 Addition, an Addition to the City
of Dallas, Texas, according to the map thereof recorded in Volume 71021, Page
2073, Map Records of Dallas County, Texas
Exhibit "B"
EXHIBIT "C"
OPERATING EXPENSE REIMBURSEMENT
This Exhibit is attached to and made a part of the Lease by and between
AETNA LIFE INSURANCE COMPANY ("Landlord") and PHYMED, INC., a Texas Corporation
("Tenant").
A. Tenant shall pay Tenant's Pro-Rata Share of the excess ("Excess")
of actual Basic Costs for a calendar year over the actual Basic Costs for the
calendar year of 1999 , (the "Expense Stop"). Landlord may make a good faith
estimate of the Excess for any calendar year or part thereof during the Lease
Term, and, Tenant shall pay to Landlord as additional rent along with each
monthly payment of Base Rental 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 Lease Term. From time to time during any calendar year, Landlord
may revise its estimate of the Excess and deliver a copy of the revised estimate
to Tenant. Thereafter, the monthly installments of Excess payable by Tenant
shall be appropriately adjusted. In no event will the provisions of Exhibit "C"
serve to reduce the monthly Base Rental.
X. Xxxxxxxx will maintain books and records of all Basic Costs in
accordance with generally accepted accounting for similar types of properties,
applied on a consistent basis. After the end of every calendar year Landlord
will deliver to Tenant a statement ("Annual Cost Statement") setting forth the
actual Basic Costs for the prior calendar year, the actual amount of any Excess
for the prior calendar year, and Xxxxxx's Pro Rata Share. If Tenant owes an
additional amount of Excess over the estimated payments made during the prior
calendar year, this will also be noted in the Annual Cost Statement and Tenant
will pay such amount, as additional rent, with the next due installment of Base
Rental. If the Annual Statement reflects an overpayment, then Landlord will
credit the amount of the overpayment against the next due installments of
additional rent payable under the provisions of this Exhibit "C", or if the
Lease Term has expired, Landlord will refund the difference to Tenant.
Notwithstanding any expiration or earlier termination of this Lease,
Xxxxxx's obligation to pay Tenant's Pro Rata Share of any Excess shall survive
any expiration or termination of this Lease.
C. The term "Basic Costs" 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,
management, repair and maintenance (including replacement thereof) of the
Project, including, but not limited to, the following:
(a) Wages and salaries of all employees engaged in the operation,
repair, replacement, and maintenance of the Project, including taxes, insurance
and benefits relating thereto;
(b) All supplies and materials used in the operation,
maintenance, repair, replacement, and security of the Project;
(c) Annual cost of all capital improvements made to the Project
which although capital in nature can reasonably be expected to reduce the normal
operating costs of the Project, as well as all capital improvements made to
comply with any legal requirements, insurance requirements or environmental laws
which become effective after the date of this Lease, or to benefit or increase
the safety and security of the Project, 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), and the amortized portion, together
with interest on the unamortized portion of such improvements or expenditures at
an interest rate equal to two percent (2%) over the interest rate payable on
United States Treasury securities having a maturity comparable to the period of
the amortization at the time Landlord incurred the cost, shall be included in
operating expenses in the year in which the costs are incurred and in any
subsequent years;
(d) Cost of all utilities, other than the cost of utilities
actually reimbursed to Landlord by individual tenants ;
(e) Cost of any insurance or insurance related expense applicable
to the Project and Landlord's personal property used in connection therewith,
including without limitation, the premiums for public liability coverage, fire
and extended coverage, and rental loss coverage;
(f) All taxes and assessments and governmental charges whether
federal, state, county or municipal, and whether they be by taxing districts or
authorities presently taxing or by others, subsequently created or otherwise,
and any other taxes and assessments attributable to the Project (or its
operation), and the grounds, parking areas, driveways, and alleys around the
Project, 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 Landlord or Project, 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
Project, then all such taxes, assessments, or charges, or the part thereof so
based, shall be deemed to be included within the term "Taxes" for the purposes
hereof;
(g) Cost of repairs, replacements, and general maintenance of the
Project; and
(h) Cost of service or maintenance contracts with independent
contractors for the operation, maintenance, repair, replacement, or security of
the Project (including, without limitation, alarm service, window cleaning, and
elevator maintenance) (Nothing herein is intended to obligate Landlord to
provide any security for the Project.).
There are specifically excluded from the definition of the term "Basic Cost"
costs for the following:
(1) Capital improvements made to the Project, other than capital
improvements described above in this Exhibit "C" 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) 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 Project other than Tenant;
(3) Debt service on loans to Landlord;
(4) Depreciation of the Project;
(5) Leasing commissions;
(6) Legal expenses, other than those incurred for the general
benefit of the Building's tenants (e.g., tax disputes);
(7) Wages and salaries and benefits of employees above the level
of Project manager;
(8) renovating or otherwise installing tenant improvements for
occupants of the Project; and
(9) correcting defects in the construction of the Project.
D. With respect to any calendar year or partial calendar year in which
the Project is not occupied to the extent of 100% of the rentable area thereof,
the Basic Costs for such period shall, for the purposes hereof, be increased to
the amount which would have been incurred had the Project been occupied to the
extent of 100% of the rentable area.
EXHIBIT "D"
RULES AND REGULATIONS
This Exhibit is attached to and made a part of the Lease by and between
AETNA LIFE INSURANCE COMPANY ("Landlord") and PHYMED, INC, a Texas Corporation
("Tenant").
A. The following rules and regulations shall apply to the Building,
including, without limitation the Premises:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by Tenant or used by any Tenant for purposes other
than ingress and egress to and from its Premises. No rubbish, litter, trash, or
material of any nature shall be placed, emptied, or thrown in those areas. At no
time shall Tenant permit Tenant's employees to loiter in common areas or
elsewhere in or about 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. Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, 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 personnel of Landlord or retained
by Landlord. No curtains or other window treatments shall be placed on the
glass, without Landlord's prior approval. No lighting which may be visible from
the exterior of the Premises may be utilized without Landlord's prior approval.
4. Landlord may provide and maintain an alphabetical directory for all
tenants in the main lobby of the Building.
5. Landlord shall provide all door locks in Tenant's Premises, at the
cost of Tenant, and Tenant shall not place any additional door locks in its
Premises without Landlord's prior written consent. Landlord shall furnish to
Tenant a reasonable number of keys to the door lock's in Tenant's Premises free
of cost and additional keys, at Tenant's cost. Tenant shall not make a duplicate
of any key. All keys are to be returned to Landlord at the expiration or earlier
termination of this Lease.
6. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by Tenant of any merchandise or materials which require
use of elevators or stairways, common area loading docks 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. At the time
of seeking Landlord's approval, Tenant shall provide to Landlord, in writing, a
detailed listing of the activity. Tenant assumes all risks of and shall be
liable for all damage to articles moved and injury to persons resulting from
such activity. If any equipment, property and personnel of Landlord are damaged
or injured as a result of acts in connection with this activity, then Tenant
shall be solely liable for any and all damage or loss resulting therefrom.
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 which will
avoid damage to the Building, which may include the use of such supporting
devices as Landlord may require, and which may not in any case exceed the
acceptable floor loading and weight distribution for the Building. 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.
9. No birds or animals (except seeing eye dogs) shall be brought into
or kept in, on or about the Premises. No portion of the Premises shall at any
time be used or occupied as sleeping or lodging quarters or for any immoral or
illegal purposes or for any purpose which would tend to injure the reputation of
the Building or impair the value of the Building.
10. Tenant shall not commit waste and shall keep its Premises neat and
clean. All trash and debris must be placed in receptacles provided therefor.
11. Tenant shall not make or permit any improper, objectionable or
unpleasant noises or odors to emanate from the Premises to other parts of the
Building or otherwise interfere in any way with other tenants or persons having
business with them, shall not solicit business or distribute, or cause to be
distributed, in any portion of the Building any handbills, promotional materials
or other advertising, and shall not conduct or permit any other activities in
the Building that might constitute a nuisance. Tenant shall not do any cooking
or operate a restaurant or food service business from the Premises (other than a
microwave oven for use by its employees or a beverage service that is free or of
nominal charge for use by employees and invitees).
12. No machinery of any kind (other than normal office equipment) shall
be operated by Tenant on its Premises without Landlord's prior written
reasonable consent.
13. No flammable, explosive or dangerous fluid or substance shall be
used or kept by Tenant in the Premises.
14. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from the Premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
15. No coin, vending or dispensing machines of any kind may be
maintained in any Premises, except that Tenant may from time to time maintain
soft drink machines for use by its employees and invitees on a no-charge or
nominal charge basis.
16. 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.
17. Neither Tenant nor any agent, contractor or employee of Tenant
shall have any right of access to the roof of the Premises or the Building and
neither shall install, repair, place or replace any aerial, fan, air conditioner
or other device on the roof of the Premises or the Building without the prior
written consent of Landlord. Such consent may be expressly conditioned upon
Xxxxxxxx's supervision of access to the roof and upon such other reasonable
restrictions as Landlord may advise Tenant. Any aerial, fan, air conditioner or
device installed without such written consent shall be subject to removal, at
Tenant's expense, without notice, at any time. Tenant shall be liable for all
damages resulting from the installation or removal of any aerial, fan, air
conditioner or other device.
18. Tenant will refer to Landlord for Landlord's supervision, approval
and control all contractors, contractor representatives, and installation
technicians rendering any service to Tenant, before performance of any
contractual service. Such supervisory action by Landlord shall not render
Landlord responsible for any work performed for Tenant. This provision shall
apply to all work performed in the Building, including, without limitation, the
installation of telephones, computer wiring, cabling, electrical devices,
attachments and installations of any nature. Tenant shall be solely responsible
for complying with all applicable laws, codes and ordinances pursuant to which
such work shall be performed.
19. Landlord may from time to time (without any obligation to do so or
liability for not doing so) adopt appropriate systems and procedures for the
security or safety of the Building, its occupants, entry and use, or its
contents and Tenant, its employees, contractors, agents and invitees shall
comply therewith.
20. Canvassing, soliciting, and peddling in or about the Building is
prohibited and Tenant shall cooperate and use reasonable efforts to prevent
same.
21. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, quests, or invitees smoke in any common area of the Building,
unless such common area has been declared a designated smoking area by Landlord.
22. Tenant accepts any and all liability for damages and injuries to
persons and property resulting from the serving and sales of alcoholic beverages
from the Premises. Nothing contained herein shall be construed as the consent of
Landlord to permit the serving or sale of alcoholic beverages on the Premises.
B. The Landlord reserves the right to rescind any of these rules and
make such other and further rules and regulations as in the judgment of Landlord
shall from time to time be needed for the safety, protection, care and
cleanliness of the Building, the operation thereof, the preservation of good
order therein, and the protection and comfort of its tenants, their agents,
employees and invitees, which rules when made and notice thereof given to Tenant
shall be binding upon him in like manner as if originally herein prescribed.
EXHIBIT "E"
WORK LETTER
This Exhibit is attached to made a part of the Lease by and between
AETNA LIFE INSURANCE COMPANY ("Landlord") and PHYMED, INC., a Texas Corporation
("Tenant").
A. Definitions. Each term used in this Work Letter shall have the
meaning hereinafter set forth:
1. "Architect" shall mean the architect selected by Landlord and responsible for
the drafting of the Plans and Specifications and shall coordinate and supervise
with the Contractor the construction of the leasehold improvements.
2. "Construction Costs" shall mean all costs incurred in the construction of the
leasehold improvements in accordance with the Plans and Specifications, as
modified from time to time in accordance with the provisions of this Work
Letter. Such costs shall include all hard costs and soft costs to complete the
improvements. Hard costs shall include such costs as labor and materials. Soft
costs shall include such cost as architectural and engineering fees, but shall
exclude any interest incurred on funds expended during the course of the
construction. The cost of signage shall not be part of Construction Costs,
unless this blank is checked x .
3. "Contractor" shall mean the contractor selected by Landlord and responsible
for the construction of leasehold improvements.
4. "Plans and Specifications" shall mean the final plans and specifications for
the construction of leasehold improvements mutually agreed upon by Landlord and
Tenant, in accordance with the provisions of Section B. 1 of this Work Letter.
5. "Tenant Delay" shall mean any delay in the construction of the Work caused by
Tenant for any reason whatsoever. In the event of a Tenant Delay, the
Commencement Date shall be accelerated one (1) day for every day of delay caused
by Tenant.
6. "Tenant Improvement Allowance" shall mean the sum of $ N/A (or $ 0.00 per
square foot of rentable area times N/A square feet of rentable area) which
Landlord agrees to pay towards the Construction Costs.
7. "Work" shall mean the construction of leasehold improvements on the Premises
in accordance with the Plans and Specifications.
B. Construction of Premises. Landlord shall cause the Work to be
constructed substantially in accordance with the Plans and Specifications.
Tenant shall cooperate at all stages to promote the efficient and expeditious
completion of the Work. Upon approval of the Plans and Specifications and
payment of any excess, as hereinafter described, Landlord shall enter into a
construction contract with the Contractor. Landlord makes no representations or
warranties as to the Work and shall have no liability therefor; Landlord's sole
obligation shall be to enforce any warranty from the Contractor with respect to
the Work.
1. Plans and Specifications Approval. Upon execution of the Lease, Tenant shall
furnish to Landlord and the Architect preliminary space plans for the
construction of the Work which the Architect shall use to prepare and submit to
Landlord within the next N/A (___) days the proposed plans and specifications
for the Work. Landlord shall thereafter have N/A (___) days within which to
approve the proposed plans and specifications or disapprove, in which event,
Landlord shall advise Tenant and the Architect, in writing, of the reasons for
its disapproval. The Architect shall have N/A (___) days from the date of
written disapproval from Landlord to make the adjustments required by Landlord,
and resubmit the revised plans and specifications to Landlord and Tenant.
Thereafter, Landlord shall again have N/A (___) days to approve or disapprove
the revised plans and specifications. If Tenant fails to submit the preliminary
space plans on a timely basis, it shall constitute a Tenant Delay. The approval
of the Plans and Specifications by Landlord shall not be construed as any
representation or warranty by Landlord with respect to the accuracy of the Plans
and Specifications or their compliance with applicable laws, including, without
limitation, compliance with the Americans With Disabilities Act, for which it
shall be the sole responsibility of the Tenant to insure the Premises are in
compliance therewith.
2. Tenant's Share of Costs. Tenant shall be liable and pay for all Construction
Costs except to the extent of the Tenant Improvement Allowance which shall be
paid by Landlord. Upon approval of the Plans and Specifications, Landlord shall
obtain estimates of the Construction Costs from the Contractor and furnish
copies to Tenant. In the event such estimates exceed the Tenant Improvement
Allowance, Tenant shall pay the excess to Landlord within N/A (___) days of the
notice from Landlord of the estimate costs and, in any event, before the
commencement of construction. If Tenant fails to tender the excess timely,
Landlord shall not proceed with construction, and such delay shall constitute a
Tenant Delay for each day until the excess is paid. Upon receipt of the excess,
Landlord shall cause the Contractor to commence construction. Upon completion of
the construction, Landlord shall provide to Tenant an accounting of the final
costs, crediting Tenant for the Tenant Improvement Allowance and any excess
previously paid to Landlord. If any additional amounts are due and owing for
payment of Construction Costs beyond those amounts previously tendered to
Landlord, Tenant shall pay same to Landlord within N/A (___) days after the date
such accounting was provided to Tenant.
3. Construction of the Work. Following approval of the Plans and Specifications
and payment of any excess by Tenant, either the Landlord or the Contractor, as
appropriate, shall apply for a building permit, and the Contractor shall
commence construction of the Work immediately upon receipt of the permit and
proceed with all due diligence until substantial completion. The Work shall be
deemed to be substantially complete upon (i) Landlord's obtaining a certificate
of occupancy or its equivalent from the appropriate governmental authority and
(ii) the Work is sufficiently complete in accordance with the Plans and
Specifications so that Tenant may occupy the Premises, subject to any punchlist
items.
4. Unavoidable Delays. Tenant and Landlord acknowledge that there may be
unavoidable delays in the construction of the Work. The term "unavoidable
delays" shall mean events beyond the control of Landlord or the Contractor,
including, without limitation, acts of God, war, civil commotion, strikes, fire,
flood, earthquake or other casualty, governmental regulation or restriction and
adverse weather conditions or continued possession by prior tenants or
occupants.
5. Changes. If Tenant requests a change, alteration or addition after the final
Plans and Specifications have been approved, Tenant shall submit same in writing
to Landlord and to the Architect. If Landlord approves such change, Landlord
shall obtain from the Contractor and provide Tenant with an estimate of the cost
of such change. Tenant shall notify Landlord within one (1) business day if
Tenant elects to proceed with the change, in which event, Landlord shall
incorporate the change into the Plans and Specifications. The cost of such
change shall also be incorporated in the calculation of the Construction Costs.
If Landlord disapproves of such change, it shall immediately notify Tenant in
writing specifying the reasons for such disapproval and the construction shall
proceed in accordance with the previously approved, final Plans and
Specifications. Any delay in construction time (determined in accordance with he
next sentence) caused by such changes shall constitute a Tenant Delay. The
Architect, in his sole discretion, shall determine whether such change
necessitates a delay in construction and the length of such delay.
6. Governmental Regulations. Tenant shall be solely responsible for causing the
design and construction of the Work to conform to any and all requirements of
applicable building, plumbing, electrical and fire codes and the requirements of
any authority having jurisdiction over the Work, as such codes and requirements
may from time to time be amended or supplemented.
7. Entry by Xxxxxx. During the course of construction of the Work, Tenant may
enter the Premises for purposes of inspecting the Work, installing trade
fixtures, erecting signs, stocking merchandise and such other Work as may be
necessary or desirable to prepare to occupy and conduct its business from the
Premises, provided that (i) Tenant assumes the risk of injury to person and
damage to its property, (ii) any entry shall be subject to the provisions of
this Lease, except that the Lease Term shall not commence and rent shall not be
due, and (iii) Tenant shall not unreasonably interfere with the construction of
the Work on the Premises. Tenant shall also provide evidence of insurance prior
to any such entry. If such entry shall interfere with the construction of the
Work, then Tenant shall immediately leave upon the request of Landlord.
C. Delivery of the Premises. Subject to unavoidable delays, the Work is
estimated to be substantially completed for delivery of the Premises to Tenant
by the Commencement Date. If an unavoidable delay will prevent the substantial
completion of the Work prior to the scheduled Commencement Date, then Landlord
will notify Tenant in writing. Upon substantial completion of the Work, Xxxxxxxx
will notify Tenant in writing and afford Tenant an opportunity to inspect the
Premises prior to delivery. At the inspection, Landlord and Xxxxxx will prepare
and agree upon a punchlist of any items that remain to be completed.
If the Work is substantially completed to permit delivery of the
Premises prior to the Commencement Date, Landlord shall notify Tenant in writing
and, should Tenant elects to take occupancy early, then Tenant may inspect the
Premises and prepare, with Landlord, a punchlist prior to delivery.
D. Limitation. This Exhibit shall not be deemed applicable to any
additional space added to the original Premises or, in the event of a renewal of
the Lease Term, to the original Premises, itself, during the renewal term,
unless expressly so provided in the Lease or any amendment thereto.
EXHIBIT "F"
COMMENCEMENT DATE LETTER
This Exhibit is attached to and made a part of the Lease by and between
AETNA LIFE INSURANCE COMPANY ("Landlord") PHYMED, INC., a Texas Corporation
("Tenant").
1. The Lease Term commenced on September 1, 1999.
2. The Lease Term will expire on August 31, 2004 , unless renewed or
extended.
3. Tenant acknowledges that the Work has been completed in
accordance with the Plans and Specifications and accepts such Work, subject to
any punch list items being completed.
4. Tenant, further, acknowledges that any tenant improvement
allowance owed to Tenant or other obligations of Landlord to Tenant in
connection with the Work and all other conditions precedent to the commencement
of the Lease Term have occurred and that the Lease is in full force and effect.
5. There are no existing defenses or offsets which, as of the date
hereof, Tenant has against the enforcement of the Lease by Landlord.
EXECUTED on the ____ day of ____________, 19__.
LANDLORD:
AETNA LIFE INSURANCE COMPANY
By: Allegis Realty Investors LLC,
Its Investment Advisor and Agent
By:
----------------------------
Printed Name: Xxxxx X. Xxxxxx
Title: Vice President
ATTEST: TENANT:
PHYMED, INC., a Texas Corporation
By:
------------------------------------- ----------------------------
(Title)
Printed Name: Xxxxxx Xxxxxx
Title: President
EXHIBIT "M"
SPECIAL CONDITIONS
This Exhibit is attached to and made a part of the Lease by and between
AETNA LIFE INSURANCE COMPANY ("Landlord") and PHYMED, INC., a Texas Corporation
("Tenant").
SPECIAL ALTERATIONS AND ADDITIONS BY TENANT
Tenant acknowledges that the Premises presently contain a Magnetic Resonance
Imager (MRI) and related equipment, including but not limited to lead shielding
and other Leasehold improvements. Should Tenant repair, replace or in any manner
alter the MRI or other related equipment in any manner that alters the Project,
Building or Premises (specifically including but not limited to the exterior of
the Building, the windows, parking areas and landscaping), Tenant will be
required to receive landlord's prior written consent to begin such alterations
and such consent shall be conditioned upon Landlord's approval of the following:
(i) Tenant's contractor(s); (ii) detailed plans and work specifications of
Tenant Alterations; and (iii) certificates of insurance from Tenant's
contractor(s) as listed in Paragraph 9 of the Lease. In addition, Tenant must
obtain all approvals and permits required by any and all governmental
authorities and provide same to Landlord prior to commencement of any work, and
after work commences must comply with all conditions of such approvals and
permits to perform work in a prompt and expeditious manner with good and
sufficient materials. Upon completion of each alteration or upon the demand of
Landlord, Tenant shall immediately commence to make any and all repairs to the
Project, Building and Premises and return them to their original condition prior
to the commencement of the alterations, all at Tenant's sole cost and to
Landlord's satisfaction. If Tenant does not commence to make the required
repairs or the repairs are not made to Landlord's satisfaction, Landlord may
immediately commence to do so, at Tenant's sole cost plus a construction fee of
fifteen percent (15%).
MAGNETIC RESONANCE IMAGERS
Notwithstanding anything contained within the Lease to the contrary, Landlord
hereby agrees to allow Xxxxxx to assemble and operate Magnetic Resonance Imaging
(MRI) machines within the Leased Premises and to vent the machine's waste gases
to the exterior of the building. Tenant agrees to shield the aforementioned MRI
machine with a steel enclosure and conform to all applicable governmental
standards, guidelines and codes. Design and location of venting machines must be
approved by Landlord.
SERVICE BY LANDLORD
Separate meters are currently installed and future meters may be installed at
Landlord's option, to measure Tenant's use of electric, water and other utility
services as a result of independent janitorial services or the increased use of
such metered utility by Tenant. Tenant will be required to pay all such fees
associated with installation of submetering and actual submetering, upon demand,
with full documentation regarding the method of computation.
D.
Tenant herein agrees that in return for Xxxxxxxx's permission to allow Tenant to
utilize its MRI units within the Leased Premises that Tenant will guarantee to
accommodate Landlord or any other effected Tenants in the project as a result of
the gauss line emissions or any other type of emissions as a result of its use
of its MRI units or any other equipment in the Lease Premises including, but not
limited to, the following:
1. Tenant agrees that it will provide, at its sole cost and expense, whatever
shielding or other protection is necessary to prevent interference with any
electrical or electric equipment of other Tenants within the project that may
result from Tenant's use of its MRI units or other equipment within the Leased
Premises.
2. If Tenant is not able or willing to provide the necessary shielding or other
protections to these suites, Tenant agrees to lease said suites, or, at
Landlord's sole discretion, the affected portion of said suite, provided that
the unleased portion is in a leasable configuration, (Landlord's sole option),
on the same terms and conditions of this Lease except that the rate shall be at
the then market rate unless the market rate is less than the rate then in effect
on Tenant's Premises in which case the higher rate shall prevail. Additionally,
Xxxxxx agrees to pay all cost of relocation (including, but not limited to,
Tenant improvements, relocation of phone systems, reprinting of stationary,
moving costs, etc.) of the Tenants of the effected suites and any loss income of
any nature to the Landlord (including Landlord's inability to find suitable
space for such Tenants within the project and its resulting additional lost
income therefrom) as a result of the unwillingness or inability of Tenant to
provide the necessary shielding or protection as indicated herein.
3. If Tenant fails to provide the necessary shielding or protection as indicated
herein, or in the alternative, fails to pay all costs associated with relocating
any Tenants in effected suites, such failure shall constitute an event of
default under this Lease and in addition to any other rights and remedies
Landlord may have hereunder or at law, Landlord shall have the right, at its
sole option to (1) provide whatever shielding or other protection is necessary
to prevent interference with any electrical or electric equipment of other
Tenants within the project that may result from Tenant's use of its MRI units or
other equipment within the Leased Premises, or (2) as provided in subparagraph 2
above.
E.
Tenant herein agrees that it will be responsible for any and all submetering or
other electrical alterations, additions, or deletions to the Premises or the
project in general as a result of its use of its suite or suites past, present
or future. Xxxxxx agrees that upon termination of this Lease for any reason,
Tenant shall at its sole cost and at Landlord's option return the electrical
system to its condition prior to Tenant's use of the Premises. Additionally,
Xxxxxx agrees that it will pay all costs of electrical usage and water usage as
a result of after hours and above normal use in its Premises.
F.
Tenant herein agrees and understands that all construction plans for the Leased
Premises or future Premises are subject to review and express written approval
and supervision of the architects and engineers of Landlord.
G.
In addition to Tenant's obligation set forth in Paragraph D of this Exhibit, at
the termination of this Lease, Tenant shall, at its sole cost, and at Landlord's
option, remove any improvements made to the Leased Premises by Tenant or
Tenant's equipment, including, without limitation, any alterations or additions
made to the Leased Premises to accommodate the MRI units or other equipment and
restore the Leased Premises to the existing condition as of September 1, 1999,
at Tenant's sole cost and expense.
END OF SPECIAL PROVISIONS
