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EXHIBIT 10.5
1700 PACIFIC AVENUE
OFFICE LEASE
BY AND BETWEEN
F/P/D MASTER LEASE, INC.
AS LANDLORD,
AND
SERVICE ASSET MANAGEMENT COMPANY
AS TENANT
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TABLE OF CONTENTS
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1. Definitions and Basic Lease Provisions .................................................................1
2. Leased Premises ........................................................................................4
3. Lease Term .............................................................................................4
4. Acceptance of Leased Premises ..........................................................................5
5. Rent Payments ..........................................................................................5
6. Electricity ............................................................................................6
7. Services by Landlord ...................................................................................8
8. Service Interruptions ..................................................................................9
9. Operating Costs .......................................................................................10
10. Security Deposit ......................................................................................12
11. Assignment and Subletting .............................................................................12
12. Repair and Maintenance by Tenant ......................................................................15
13. Alterations and Additions by Tenant ...................................................................16
14. Use and Occupancy .....................................................................................18
15. Mechanics' Liens - Tenant's Obligations ...............................................................20
16. Limitations on Liability of Landlord; Waiver ..........................................................21
17. Tenant's Indemnification of Landlord: Assumption: Employees' Claims ...................................22
18. Tenant's Insurance ....................................................................................23
19. Landlord's Insurance ..................................................................................24
20. Rights Reserved by Landlord ...........................................................................25
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21. Fire or Other Casualty ................................................................................27
22. Condemnation ..........................................................................................27
23. Taxes on Tenant's Property ............................................................................28
24. Waiver of Subrogation .................................................................................29
25. Surrender Upon Termination or Expiration; Holdover ....................................................29
26. Removal of Tenant's Property ..........................................................................30
27. Events of Default .....................................................................................31
28. Landlord's Remedies ...................................................................................32
29. No Implied Waiver .....................................................................................34
30. Waiver by Tenant ......................................................................................35
31. Attorneys' Fees and Legal Expenses ....................................................................35
32. Subordination .........................................................................................35
33. Quiet Enjoyment .......................................................................................36
34. Notice of Landlord's Default ..........................................................................37
35. Rules and Regulations .................................................................................37
36. Estoppel Certificate ..................................................................................37
37. Notices ...............................................................................................37
38. Hazardous Materials ...................................................................................38
39. Business Purpose ......................................................................................39
40. Severability ..........................................................................................39
41. No Merger .............................................................................................39
42. Force Majeure .........................................................................................40
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43. Brokerage; Mutual Indemnities .......................................................................40
44. Gender ..............................................................................................40
45. Joint and Several Liability .........................................................................41
46. No Representations ..................................................................................41
47. Entire Agreement; Amendments ........................................................................41
48. Paragraph Headings ..................................................................................41
49. Binding Effect ......................................................................................41
50. Exhibits ............................................................................................41
51. Counterparts ........................................................................................42
52. Rental Tax ..........................................................................................42
53. Parking .............................................................................................42
54. Tenant's Service Providers ..........................................................................43
55. Security Disclaimer .................................................................................43
56. Intentionally Deleted ...............................................................................44
57. Relocation of the Leased Premises ...................................................................44
58. Limitation of Actions ...............................................................................46
59. Execution and Approval of Lease .....................................................................46
60. Right of First Notice ...............................................................................46
61. Option to Extend Lease Term .........................................................................47
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OFFICE LEASE
This Office Lease (this LEASE) is entered into as of May 20, 1998 (the
DATE OF THIS LEASE), by F/P/D Master Lease, Inc., a Texas corporation
(LANDLORD), and Service Asset Management Company, a North Carolina corporation
(TENANT).
1. DEFINITIONS AND BASIC LEASE PROVISIONS.
Some of the basic provisions and defined terms of this Lease are as
follows:
PROJECT: 1700 Pacific Avenue, Dallas, Texas,
including the LAND described on
EXHIBIT B, the Building, the On-Site
Garage, the concourse, lobbies,
plazas, walkways, open spaces,
landscaped areas, and similar public
areas located on, above, beneath or
immediately adjacent to the Land, and
any truck accessways, loading docks,
or similar facilities which serve the
Building, the Off-Site Garage, and the
Building's interest in pedestrian
tunnels, skybridges or parking garages
now or hereafter connecting the
Building to any building or garage
that may be located on any other block
adjacent to or nearby the block in
which the Building is located.
BUILDING: The building located on the Land,
known as 1700 Pacific Avenue, located
at 1700 Pacific Avenue, Dallas, Texas
75201.
LEASED PREMISES: 31,478 Rentable Square Feet as shown
on EXHIBIT A. Suite 1400 on Floor 14
of the Building and Suite 1500 on
Floor 15 of the Building.
TENANT'S PROPORTIONATE SHARE: 2.348%, determined by dividing the
number of Rentable Square Feet
contained in the Leased Premises by
the Total Building Area. The Tenant's
Proportionate Share shall change if
the size of the Leased Premises
changes as a result of expansions,
reductions, or otherwise.
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TOTAL BUILDING AREA: 1,340,481 Rentable Square Feet.
MINIMUM RENT: $ 0.00 per month for months 1 through 6
$ 39,347.50 per month for months 7
through 42
$ 44,593.83 per month for months 43
through 66
$ 47,217.00 per month for months 67
through 90
$ 52,463.33 per month for months 91
through 126
RENT: The Minimum Rent and all other amounts
payable by Tenant to Landlord under
this Lease, including Tenant's
Proportionate Share of Total
Electricity Costs for the Project and
Excess Operating Costs.
COMMENCEMENT DATE: June 1, 1998. (See Paragraph 3)
EXPIRATION DATE: November 30, 2008. (See Paragraph 3)
LEASE TERM: 126 Months, ending on the Expiration
Date.
BASE YEAR FOR OPERATING COSTS: Calendar year 1998.
TENANT'S BROKER: Trinity Advisory Group, Inc.
LANDLORD'S BROKER: Faison-Stone, Inc., a Texas
corporation.
SECURITY DEPOSIT: $ N/A
OFF-SITE GARAGE: The approximately 1400 space parking
garage on the western end of the block
bounded by Harwood, Pearl, Main, and
Elm Streets in Dallas, Texas.
ON-SITE GARAGE: The approximately 300 space parking
garage that is part of the Building.
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PARKING: 4 spaces (Reserved or Unreserved) in
the On-Site Garage, 27 Unreserved
spaces in the Off-Site Garage, and,
subject to availability up to 60
additional unreserved spaces in the
Off-Site Garage on a month-to-month
basis. (See Paragraph 53)
PERMITTED USE: General business offices.
TENANT PARTY(IES): Tenant and its directors,
shareholders, partners, trustees,
members, agents, contractors,
subcontractors, employees, licensees,
servants, and invitees and all persons
and entities claiming through any of
these persons or entities.
Addresses for notices under this Lease:
LANDLORD: F/P/D Master Lease, Inc.
c/o Faison-Stone, Inc.
1700 Pacific Avenue, Suite 4500
Dallas, Texas 75201
Attention: M. Scott Ozymy
Fax: (214)969-0384
TENANT: Service Asset Management Company
1700 Pacific Avenue, Suite 1400
Dallas, Texas 75201
Attention: William D. Gross
Fax: (214)___-______
with a copy to:
Service Asset Management Company
6907 Capital of Texas Highway #230
Austin, Texas 78755-0800
Attention: Roger J. Engemoen, Jr.
Fax: (512)231-8526
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2. LEASED PREMISES.
Landlord, in consideration of the Rent and the obligations of Tenant
under this Lease, leases the Leased Premises to Tenant and Tenant
leases the Leased Premises from Landlord, subject to the terms of this
Lease. The number of RENTABLE SQUARE FEET in the Leased Premises and
the Project is the square footage of the applicable portion of the
Project, is stipulated for all purposes to be the number of Rentable
Square Feet set forth in Section 1 and is binding on Landlord and
Tenant subject to changes in the size of the Leased Premises.
3. LEASE TERM.
(a) The Lease Term begins on the earliest to occur of: (1) the
date Tenant occupies any part of the Leased Premises; (2) the
Commencement Date; or (3) the Ready for Occupancy Date
(defined below); and ends on the Expiration Date.
Notwithstanding the foregoing, if the Ready for Occupancy Date
occurs before May 22, 1998, then the Lease Term shall begin on
the earlier of (i) the date Tenant occupies any part of the
Lease Premises or May 25, 1998, and if the Ready for Occupancy
Date occurs on or after May 25, 1998 and before July 3, 1998,
then the Lease Term shall begin on the earlier of (i) the date
Tenant occupies any part of the Lease Premises, or (ii) July
3, 1998.
(b) Subject to Paragraph 3(c) below, if the Ready for Occupancy
Date does not occur by the Commencement Date for any reason
other than omission, delay, or default by any Tenant Party,
Tenant's obligation to pay Rent does not commence until the
Ready For Occupancy Date occurs and the Expiration Date is
extended for a period of time equal to the time period
beginning on the Commencement Date and ending on the day
before the Ready for Occupancy Date. This abatement of Rent is
Tenant's sole and exclusive remedy and is full settlement of
all claims that Tenant has against Landlord by reason of the
Leased Premises not being ready for occupancy by Tenant on the
Commencement Date.
(c) If Tenant occupies any part of the Leased Premises before the
Commencement Date or the Ready for Occupancy Date, as
applicable, the Lease Term and Tenant's obligation to pay Rent
commence on the date Tenant occupies the Leased Premises and
the Expiration Date is 126 months after the date on which
Tenant's occupancy commences. Tenant is deemed to OCCUPY the
Leased Premises when Tenant takes possession of any part of
the Leased Premises for any purpose, including placing
furniture and installing Tenant's equipment in the Leased
Premises.
(d) When the first day of the Lease Term is established pursuant
to this Paragraph 3, Landlord shall prepare and Landlord and
Tenant shall exchange a letter acknowledging that date and, if
the Expiration Date changes under this Paragraph, the
Expiration Date.
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(e) The READY FOR OCCUPANCY DATE is the earlier to occur of:
(1) the date that Landlord notifies Tenant that the City
of Dallas has approved the Leased Premises for
occupancy; or
(2) the date the City of Dallas would have approved the
Leased Premises for occupancy but for delays caused
by any Tenant Party;
provided, if Landlord performs any Additional Work (defined in
EXHIBIT F), the Ready for Occupancy Date is deemed accelerated
by the number of days in the Additional Work Period (defined
in EXHIBIT F).
4. ACCEPTANCE OF LEASED PREMISES.
Tenant's occupancy of the Leased Premises is conclusive evidence that
Tenant: (A) accepts the Leased Premises as suitable for the purposes
for which they are leased; (B) accepts the Leased Premises and the
Project as being in a good and satisfactory condition; and (C) waives
any defects in the Leased Premises and the Project; provided, however,
that by occupying the Lease Premises, Tenant shall not be deemed to
have accepted or waived any defect therein about Tenant, in the
exercise of reasonable care, could not have learned prior to occupying
the Leased Premises.
5. RENT PAYMENTS.
(a) The installment of Minimum Rent due for the seventh (7th)
month of the Lease Term is payable by Tenant when this Lease
is executed. Subsequent installments of Minimum Rent are
payable by Tenant in advance on the first day of each calendar
month during the Lease Term beginning on the first day of the
eighth full calendar month after the Commencement Date (or the
Ready for Occupancy Date, if applicable). Minimum Rent for any
partial calendar month is prorated on a per diem basis.
(b) All Rent is payable by Tenant at the times and in the amounts
specified in this Lease in legal tender of the United States
of America to Landlord at the following address or to any
other person or at any other address as Landlord may from time
to time designate by notice to Tenant:
F/P/D Master Lease, Inc.
P.O. Box 844792
Dallas, Texas 75284-4792
(c) Rent is payable by Tenant without notice, demand, abatement,
deduction, or set off. Tenant's obligation to pay Rent is
independent of any obligation of Landlord under
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this Lease. If any installment of Rent is not paid within 5
days after it is due, Tenant shall pay a late charge in an
amount equal to 10% of the delinquent installment of Rent when
it pays the delinquent installment. In addition, any Rent not
paid when due (and which represents amounts not already
specified as bearing interest under other provisions of this
Lease) bears interest from the due date until the date paid at
a rate (the INTEREST RATE) equal to the lesser of the highest
rate allowable under applicable law or 18% per annum.
6. ELECTRICITY.
(a) Landlord, subject to payment by Tenant as specified below,
shall furnish electricity as follows:
o up to 2 watts per Rentable Square Foot in the Leased
Premises at 277 volts for lighting; and
o up to 1.25 watts per Rentable Square Foot in the
Leased Premises at 120 volts for office machines.
If Tenant wants to use any office equipment or lighting that
will cause Tenant's electricity requirements to exceed the
specified levels or that will generate, excess heat, Tenant
must give Landlord prior notice specifying Tenant's excess
electricity requirements and the specific equipment that
generates excess heat. If the excess electricity requirements
can be supplied without, in Landlord's sole opinion,
overloading the existing Building systems, or if the
additional equipment necessary to supply Tenant's excess
electricity requirements can be installed without, in
Landlord's sole opinion, creating a dangerous condition in the
Building, Landlord shall supply Tenant's excess electricity
requirements and Tenant shall pay Landlord the cost of
supplying the excess electricity requirements, including all
installation costs, on demand as additional Rent.
(b) If Tenant's electricity use exceeds the specified limits,
Landlord may, at its sole option, either:
o install separate submeter(s) for all or any part of
the Leased Premises and Tenant shall pay Landlord the
installation cost and the cost of the excess
electricity as metered on demand as additional Rent;
or
o if Landlord does not elect to install separate
submeter(s), cause Landlord's engineer to determine
the amount of excess electricity to be allocated to
Tenant based on the power requirements of the
equipment or lighting and Tenant shall pay Landlord
the cost of the excess electricity as reasonably
determined by Landlord's engineer on demand as
additional Rent.
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(c) If Tenant's electricity use exceeds the specified limits or
any of Tenant's equipment generates excess heat, Landlord may
also, at its sole option and without any obligation to do so,
install supplemental air conditioning units in the Leased
Premises to offset the heat-generating effect of Tenant's
excess electricity usage and Tenant's equipment and Tenant
shall pay Landlord the installation cost and the cost of
operation, use, repair, and replacement of the supplemental
air conditioning units on demand as additional Rent.
(d) The obligation of Landlord to furnish electricity is subject
to the rules and regulations of the supplier of electricity
and of any municipal or other governmental authority
regulating the business of providing electricity. Landlord is
not liable to any Tenant Party for any failure or defect in
the supply or character of electricity furnished to the Leased
Premises due to any requirement, act, or omission of the
entity supplying electricity to the Project.
(e) Tenant shall pay to Landlord, without any set off or
deduction, beginning on the Commencement Date, Tenant's
Proportionate Share of Total Electricity Costs for the Project
(defined below) incurred in the use, occupancy, and operation
of the Project and all related improvements and appurtenances,
including electricity used for heating and air-conditioning
and perimeter lighting for the Project, net of Submetered
Power (defined below).
(f) The term TOTAL ELECTRICITY COSTS FOR THE PROJECT means the
total electricity cost charged to Landlord by the entity
supplying electricity to the Building, and the Building's
share of electricity costs charged for other portions of the
Project, including taxes, but may not include any
administrative fee or charge by Landlord. The term SUBMETERED
POWER means all supplemental electricity that is separately
submetered by Landlord and paid by tenants in the Building or
that is separately tracked and calculated by Landlord's
engineer and paid by tenants in the Building.
(g) If Landlord at any time elects to install submeters measuring
electricity used in the Building or the Leased Premises, which
may include submeters measuring electricity used for heating
and cooling the Building or Leased Premises, then Tenant's
Proportionate Share of those actual costs will be based on
actual use as measured by the submeters, but, with any areas
sharing a submeter being prorated on the basis that the area
of the Leased Premises bears to the total area covered by the
submeters.
(h) Landlord shall bill Tenant for Tenant's electricity charges
under this Paragraph monthly and Tenant shall pay its
electricity charges within 10 business days after receipt of
each bill. Landlord shall bill Tenant for Tenant's electricity
charge for the last full or partial month of the Lease Term as
soon as practicable after the termination or expiration of
this Lease and Tenant shall pay the bill within 10
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business days after receipt. Tenant's obligation to pay the
bill survives the termination or expiration of the Lease.
7. SERVICES BY LANDLORD.
Landlord shall maintain the Building, the On-Site Garage, the Off-Site
Garage and all common areas (exclusive of those portions of the Lease
Premises Tenant is obligated to maintain hereunder) in accordance with
standards customarily followed in the maintenance of first-class
buildings comparable to the Building in the downtown Dallas central
business district. Landlord, subject to payment by Tenant as specified
below, shall furnish the following services for the Leased Premises:
o air conditioning, both heating and cooling (as required by the
seasons), from 8:00 a.m. to 6:00 p.m. on weekdays and on
Saturdays from 8:00 a.m. to 1:00 p.m., except on Holidays (as
defined below) (the HVAC Standard Hours) amounts as are in the
sole judgment of Landlord reasonably required for comfortable
use and occupancy under normal business operations.
Circulating air is not available other than through the
Building's HVAC system. If Tenant requires HVAC services at
any time other than HVAC Standard Hours, Landlord shall
furnish after-hours HVAC service for the times specified in a
request by Tenant received by the Project manager before 2:00
p.m. on the business day the extra usage is required. Requests
received after that deadline will be handled in accordance
with Landlord's Building Policies in effect at the time.
Tenant acknowledges receipt of a copy of the current Building
Policies. Landlord may make changes in the Building Policies
and the changes become effective when a copy of the revised
Building Policies is delivered to Tenant. Tenant shall pay
Landlord as additional Rent for extra service within 5 days
after receipt of a bill therefor the greater of (A) the actual
cost of the extra service [if more than one tenant has
requested and is furnished after-hours HVAC service for the
same hour(s) the charge will be prorated if reasonably
possible], or (B) $50 per hour per floor (whole or partial) of
after-hours HVAC service. HOLIDAYS are New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving, and
Christmas. BUSINESS DAYS are weekdays other than Holidays.
o cold water (at the normal temperature of the water supply to
the Building) for lavatory and toilet purposes, water for
drinking purposes, and hot water (from the regular Building
supply at prevailing temperatures) for lavatory purposes to
restrooms located in the core area of the Building only, all
water service to be at supply points provided for general use
of tenants of the Building through fixtures installed by
Landlord, or by Tenant with Landlord's prior consent;
o janitor and maid service to the Leased Premises in accordance
with Exhibit G on days other than Fridays, Saturdays, and
Holidays;
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o window washing and wall cleaning as determined by Landlord in
its reasonable discretion;
o operator-less passenger elevators for ingress and egress to
and from the floor(s) on which the Leased Premises are located
(provided, Landlord may reasonably limit the number of
elevators to be in operation on Saturdays, Sundays, and
Holidays) and freight elevator service in common with other
tenants but only when scheduled through the Project manager;
o common area rest room facilities; and
o electric lighting for all common areas and special service
areas of the Building in the manner and to the extent deemed
by Landlord to be reasonable and standard, including
replacement of fluorescent light tubes in Building standard
light fixtures.
BUILDING STANDARD HOURS are weekdays, excluding Holidays, from 8:00
a.m. to 6:00 p.m. Landlord may lock the Buildings at all times other
than during Building Standard Hours; provided, however, that Tenant
shall at all times have access to the Leased Premises by keys, magnetic
cards, or other access device provided by Landlord in accordance with
this Lease, subject to reasonable access control measures instituted by
Landlord after Building Standard Hours.
8. SERVICE INTERRUPTIONS.
(a) Landlord does not warrant that the services provided by
Landlord will be free from any slow-down, interruption, or
stoppage by governmental bodies, regulatory agencies, utility
companies, and others supplying services or caused by the
maintenance, repair, replacement, or improvement of any
equipment involved in the furnishing of the services or caused
by changes of services, alterations, strikes, lockouts, labor
controversies, fuel shortages, accidents, acts of God, the
elements, or other causes beyond the reasonable control of
Landlord. Landlord shall use due diligence to resume the
service upon any slowdown, interruption, or stoppage.
(b) No slow-down, interruption, or stoppage of the services may be
construed as an eviction, actual or constructive, of Tenant or
cause an abatement of Rent or in any manner or for any purpose
relieve Tenant from its obligations under this Lease. Landlord
is not liable for damage to persons or property, or in default
under this Lease, as a result of any slow-down, interruption,
or stoppage.
(c) Notwithstanding the foregoing, if there occurs an interruption
in HVAC, electricity, water or elevator services ("ESSENTIAL
SERVICES"), such interruption is not caused by Tenant or a
Tenant Party, such interruption renders at least 50% of the
Leased Premises untenantable, and such interruption continues
to render at least 50% of the
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Lease Premises untenantable for (i) 5 consecutive business
days if caused by Landlord's negligence or willful misconduct,
or (ii) 30 consecutive days if not caused by Landlord's
negligence or willful misconduct, then Rent shall abate as to
that portion of the Leased Premises rendered untenantable from
the 6th consecutive business day or the 31st day, as the case
may be, of such interruption and for as long as such
interruption continues thereafter. The foregoing remedies
shall be Tenant's sole and exclusive remedies with respect to
interruption of services.
9. OPERATING COSTS.
(a) The term OPERATING COSTS means those expenses (other than
expenses for electricity) directly incurred in the management,
operation, maintenance, repair, and security of the Project,
including but not limited to the cost of all utilities,
building supplies, janitorial service, maintenance, repairs,
fire and extended coverage, public liability, and other
insurance costs, all labor and employee benefit costs
(including wages, salaries, and fees of all personnel engaged
in the management, operation, maintenance, repair, and
security of the Project), ad valorem taxes and assessments
(both regular and special), costs that reduce operating
expenses or are required to meet Applicable Laws [defined in
Paragraph 14(a)], management fees, consulting fees, legal
fees, accounting fees, the Building's share of fees, charges,
taxes, expenses and other amounts due in connection with
pedestrian tunnels, pedestrian skybridges, parking garages,
City of Dallas property required to be maintained or operated
by Landlord, and other elements of the Project or other
facilities that benefit the Building, and the fair market
rental of the Project managers' offices, together with
payments or credits Landlord makes to any tenant or tenants in
the Project in lieu of Landlord providing any of the services
or paying for any of the costs. If for any time period in
question the Project is less than 95% occupied, Landlord shall
increase Operating Costs as though the Project were 95%
occupied.
(b) The term EXCESS OPERATING COSTS means the amount by which the
Operating Costs for any calendar year after the Base Year
exceed the Operating Costs for the Base Year. Landlord shall
calculate Operating Costs and Excess Operating Costs on a
Rentable Square Foot basis by dividing the aggregate costs by
the Total Building Area. If the amount of ad valorem taxes and
assessments for the Base Year is subsequently modified, the
modified amount is deemed to be the ad valorem taxes and
assessments for the Base Year and is substituted for the
original amount of taxes and assessments in the calculation of
Operating Costs for the Base Year.
(c) If there are Excess Operating Costs for any calendar year,
Tenant shall pay to Landlord as additional Rent an amount
equal to the product of the Excess Operating Costs (on a
Rentable Square Foot basis) multiplied by the number of
Rentable Square Feet in the Leased Premises. If the amount of
ad valorem taxes and assessments for the Base Year is reduced
under subparagraph (b), Tenant shall pay to Landlord as
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additional Rent any underpayment in Excess Operating Costs
resulting from the recalculation of the Operating Costs for
the Base Year within 30 days after delivery of any invoice
therefor.
(d) On or before December 1 of the Base Year and each subsequent
calendar year, Landlord shall deliver to Tenant Landlord's
reasonable estimate of the Excess Operating Costs for the next
calendar year. Tenant shall pay to Landlord monthly as
additional Rent, in advance on or before the first day in each
succeeding calendar month, an amount equal to one twelfth
(1/12th) of the product of the number of Rentable Square Feet
in the Leased Premises times Landlord's estimated Excess
Operating Costs for the applicable calendar year. Landlord may
adjust its estimate by notice to Tenant at any time during the
applicable calendar year if actual Excess Operating Costs are
substantially different from the estimate, and thereafter
payments by Tenant under this Paragraph adjust accordingly.
The term CALENDAR YEAR includes partial calendar years.
(e) No later than July 1 of each calendar year, Landlord shall
deliver to Tenant a statement (EXCESS OPERATING COSTS
STATEMENT) certified by an authorized representative of
Landlord setting out in reasonable detail the actual Excess
Operating Costs for the prior calendar year. If the estimated
payments made by Tenant during the prior calendar year exceed
Tenant's share of actual Excess Operating Costs for that year,
Landlord shall credit the difference against the next ensuing
installments of estimated payments by Tenant under this
Paragraph. If the estimated payments made by Tenant during the
prior calendar year under this Paragraph are less than
Tenant's share of the actual Excess Operating Costs for that
year, Tenant shall pay the amount of the difference to
Landlord in cash within 30 days after delivery of any invoice
therefor by Landlord accompanied by a statement of the actual
Excess Operating Costs for that year as additional Rent.
(f) Notwithstanding the foregoing, Operating Costs that are
controllable (which excludes electricity, taxes, utilities and
insurance) shall not increase, on a cumulative compounded
basis by more than eight percent (8%) per year during the
Lease Term.
(g) If Operating Costs for any calendar year (other than taxes,
utility or insurance) increase by more than 5%, Tenant, at its
expense, may inspect, audit, and copy Landlord's books and
records concerning the applicable Excess Operating Costs
Statement at Landlord's Project Manager's offices during
normal office hours within 6 months after the date of the
Excess Operating Costs Statement by giving Landlord at least
30 days' prior notice. Tenant may not be in Landlord's Project
Manager's offices for more than a total of 5 business days.
Tenant shall make reasonable efforts to minimize any
disruption to Landlord's business while in Landlord's project
manager's offices. Landlord will use reasonable efforts to
cooperate with the conduct
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of such audit. Tenant shall deliver to Landlord a copy of the
audit within 10 days after it is finalized.
o If Tenant disputes any Excess Operating Costs
Statement as a result of its audit and Landlord does
not contest the accuracy of Tenant's dispute, within
10 business days after demand, Landlord shall
reimburse Tenant the amount of any overpayment or
Tenant shall pay Landlord the amount of any
underpayment, together with interest thereon from the
date due until paid at the Interest Rate. If Landlord
contests the results of Tenant's audit, Landlord and
Tenant shall use reasonable efforts to resolve their
differences. If Landlord and Tenant are unable to
resolve their differences after using reasonable
efforts, then, prior to the institution of legal
action, Landlord and Tenant agree to attempt to
resolve such dispute by participating in nonbinding
mediation. If Tenant retains a third party (AUDITOR)
to audit any Excess Operating Costs Statement, the
Auditor must be a nationally recognized accounting
firm that is not being compensated by Tenant on a
contingency fee basis. Prior to conducting an audit,
Tenant and any Auditor shall execute Landlord's
standard form of confidentiality agreement relating
to the audit.
o Tenant may not conduct an audit of any Excess
Operating Costs Statement if Tenant is in default
under this Lease at the time Tenant delivers its
notice to Landlord requesting the audit or at the
time the audit would be conducted. Except for
Affiliate, as hereinafter defined, sublessees or
assignees, no subtenant may conduct an audit and no
assignee may conduct an audit for any period during
which the assignee was not in possession of the
Leased Premises.
10. SECURITY DEPOSIT. Intentionally Deleted.
11. ASSIGNMENT AND SUBLETTING.
(a) Tenant may not, without Landlord's prior written consent,
except as specified in subparagraph 11(i) below; (1) assign or
transfer this Lease or any interest therein; (2) permit any
assignment of this Lease or any interest therein by operation
of law; (3) sublet the Leased Premises or any part thereof;
(4) grant any license, concession, or other right of occupancy
of any portion of the Leased Premises; (5) mortgage, pledge,
or otherwise encumber its interest in this Lease; or (6)
permit the use of the Leased Premises by any parties other
than Tenant and its employees. Landlord's consent to any
assignment, subletting, or reorganization is not a waiver of
Landlord's right to approve or disapprove any subsequent
assignment, subletting, or reorganization. Tenant and any
guarantor of Tenant's obligations under this Lease (GUARANTOR,
whether one or more) shall remain jointly and severally liable
for the
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payment of Rent and performance of all other obligations under
this Lease after any assignment or subletting. If Tenant is a
partnership, Tenant, Guarantor, and the general partners of
Tenant prior to its reorganization shall remain jointly and
severally liable for the payment of Rent and performance of
all other obligations under this Lease after any
reorganization.
(b) If an Event of Default (defined in Paragraph 27) occurs while
the Leased Premises or any part thereof are assigned or
sublet, Landlord, in addition to any other remedies under this
Lease or provided by law, may at its option collect directly
from the assignee or sublessee all rents payable to Tenant
under the assignment or sublease and apply the rent against
any sums due to Landlord under this Lease. Tenant authorizes
and directs any assignee or sublessee to make payments of rent
directly to Landlord upon receipt of notice from Landlord. No
direct collection of rent by Landlord from any assignee or
sublessee is a novation or a release of Tenant or Guarantor
from the performance of their obligations under this Lease or
under any guaranty executed by Guarantor. Receipt by Landlord
of rent from any assignee, sublessee, or occupant of the
Leased Premises is not a waiver of the covenant against
assignment and subletting or a release of Tenant or Guarantor.
(c) If Tenant wants to assign or sublease all or part of the
Leased Premises, it shall deliver a notice to Landlord
specifying the name of, financial information for, and the
nature of the business of the proposed assignee or subtenant,
and the proposed effective date of the assignment or sublease.
Tenant may not assign or sublease all or any part of the
Leased Premises at any time when Tenant is in default under
this Lease, whether or not an Event of Default has occurred.
(d) Landlord has a period of 20 days from receipt of Tenant's
notice to notify Tenant that Landlord elects, in Landlord's
sole discretion, to:
(1) terminate this Lease as to the space that is the
subject of Tenant's notice as of the date specified
by Tenant, and if more than thirty percent (30%) of
the Leased Premises, whether through one or more
transactions, will be subject to assignments or
subleases as a results of the proposed sublease or
assignment, Landlord shall have the right to
terminate the Lease in its entirety;
(2) consent to the assignment or sublease; provided, if
the rent payable to the Tenant by the sublessee is
greater than the Minimum Rent, fifty percent (50%) of
the excess rent is payable by Tenant as additional
Rent to Landlord on the same dates Tenant pays
Minimum Rent; or
(3) refuse to consent to Tenant's assignment or sublease
of that space and to continue this Lease in effect.
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<PAGE> 18
If Landlord does not notify Tenant of Landlord's election
within the 20-day period, Landlord is deemed to elect option
(3).
(e) Any change in a majority of the voting rights or other control
rights of Tenant is an assignment for purposes of this
Paragraph. If Tenant is a partnership, then any transfer of a
general partnership interest is an assignment for purposes
hereof.
(f) As a condition to the effectiveness of each assignment or
subletting, and whether or not Landlord's prior consent is
required for the assignment or subletting, Tenant shall pay to
Landlord its reasonable administrative and legal costs in
connection therewith, not to exceed $1,000.
(g) Any attempted assignment or sublease by Tenant or any
attempted reorganization of Tenant in violation of the terms
of this Paragraph is void.
(h) Tenant may not enter into any sublease, license, concession or
other agreement for any use, occupancy or utilization of the
Leased Premises that provides for a rental or other payment
for the use, occupancy, or utilization based in whole or in
part on the net income or profits derived by any person from
the premises so leased, used, occupied, or utilized.
(i) Tenant may, without the prior consent of Landlord, sublet all
or any part of the Leased Premises to an Affiliate (defined
below), or assign this Lease to an Affiliate, so long as (i)
Tenant provides Landlord a copy of the sublease or the
assignment within 10 days after its execution, (ii) the
transaction was not entered into as a subterfuge to avoid the
obligations and restrictions of this Lease, (iii) the assignee
or sublessee is engaged in a business customarily acceptable
for a tenant in a first-class high-rise building in Dallas,
Texas, (iv) the assignee's or sublessee's proposed use of the
Leased Premises does not violate this Lease, and (v) the
assignee's or sublessee's net worth, creditworthiness and
financial standing is equal to or better than Tenant's as of
the date of such assignment or sublease. Landlord has no
obligation to recognize an Affiliate as the tenant under this
Lease unless Landlord timely receives a complete copy of the
assignment or sublease. Tenant and Guarantor remain jointly
and severally liable for the payment of Rent and performance
of all other obligations under this Lease after any assignment
or subletting to an Affiliate. The term AFFILIATE means any
entity that acquires all or part of Tenant, or that is
acquired in whole or in part by Tenant, or which entity
controls, directly or indirectly, Tenant. For purposes of this
subparagraph, CONTROL means the possession, directly or
indirectly, of the power to direct or cause the direction of
the management and policies of a corporation, whether through
the ownership of voting securities or by contract or
otherwise.
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(j) If Landlord exercises its termination right set forth in
subparagraph 11(d)(1) above, the number of reserved (if any)
and unreserved parking spaces allocated to Tenant reduces
proportionately, effective as of the date of termination.
(k) Notwithstanding the foregoing, Landlord will not unreasonably
withhold its approval of an assignment of this Lease or a
sublease of a portion of the Leased Premises so long as the
following conditions are satisfied: (i) the assignee or
sublessee is of a kind and type and has a net worth and
creditworthiness comparable to other tenants customarily found
in or comparable with first-class office buildings in the
downtown Dallas central business district comparable to the
Building; (ii) the assignee or sublessee is engaged in a
business customarily acceptable for a tenant in a first-class
office building in the downtown Dallas central business
district comparable to the Building; (iii) the assignee's or
sublessee's proposed use of the Leased Premises does not
violate this Lease or any restriction applicable to the
Building; (iv) at the time of such assignment or subletting,
this Lease is in full force and effect and there is no uncured
Event of Default; (v) the assignee or sublessee shall not use
the Leased Premises or the Building in a manner that adversely
interferes with, burdens the use of or otherwise increases the
use of the public areas of the Project, any Building system,
or the use of the elevators or any Building system; and (vi)
in no event shall the following be considered as suitable
assignees or sublessees under this Lease: any governmental
body, agency or bureau (of the United States, any state,
county, municipality or any subdivision thereof); any foreign
government or subdivision thereof; any health care
professional or health care service organization; schools or
similar organizations; employment agencies; radio, television
or other communication stations; restaurants; and retailers
offering retail services from the Leased Premises.
(l) Notwithstanding the giving by Landlord of its consent to any
sublease or assignment with respect to the Leased Premises, no
sublessee or assignee may exercise any renewal options,
expansion options, rights of first offer or similar rights
under this Lease except in accordance with a separate written
agreement entered into directly between such sublessee or
assignee and Landlord, provided Tenant continues to be liable
for the performance of all obligations hereunder, as increased
or otherwise affected by the exercise of such rights. Tenant
may not exercise any renewal options, expansion options,
rights of first offer or similar rights under this Lease if
Tenant has assigned any portion of its interest in this Lease
or subleased any portion of the Leased Premises.
12. REPAIR AND MAINTENANCE BY TENANT.
(a) Except for those repairs and maintenance obligations required
to be undertaken by Landlord as expressly provided in this
Lease, Tenant shall keep the Leased Premises [including,
without limitation, Standard Improvements and Tenant
Improvements
PAGE 15
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(both as defined in Exhibit F)] and all fixtures installed by
or on behalf of Tenant in good and tenantable condition.
Tenant shall promptly make all necessary non-structural
repairs and replacements to its fixtures and Tenant
Improvements, all at Tenant's expense, under the supervision
and with the approval of Landlord. All repairs and
replacements must be equal in quality and class to the
original work. Without diminishing this obligation of Tenant,
if Tenant fails to make any repairs and replacements within 15
days after the occurrence of the damage or injury, Landlord
may at its option make the repairs and replacements and Tenant
shall pay Landlord on demand as additional Rent the costs
incurred by Landlord plus an administrative fee equal to 10%
of the costs; provided, however, that with respect to any
repair which reasonably requires more than 15 days to
complete, Landlord shall not have the right to make such
repair or replacement as long as Tenant commences such repair
within such 15 day period and thereafter diligently pursues
such repair to completion.
(b) Tenant shall pay the cost of repairs and replacements due to
damage or injury to the Project or any part thereof caused by
any Tenant Party or by any malfunction or misuse of any
equipment installed by or on behalf of Tenant. This amount is
payable by Tenant to Landlord on demand as additional Rent,
plus interest at the Interest Rate from the date of payment by
Landlord until paid by Tenant. If Tenant requests Landlord to
perform any maintenance or repairs to the Leased Premises,
over and above the services required to be performed by
Landlord pursuant to Paragraph 7, Tenant shall pay the actual
cost thereof, plus an administrative fee equal to 10% of the
actual cost thereof, to Landlord as additional Rent within 5
business days after demand.
(c) Tenant also shall pay the actual cost, plus an administrative
fee equal to 10% of the actual cost thereof, to Landlord as
additional Rent within 5 days after demand, of replacing
fluorescent light tubes in Building standard light fixtures
located in the Leased Premises.
13. ALTERATIONS AND ADDITIONS BY TENANT.
(a) Tenant may not make or permit any alterations, improvements,
or additions in or to the Leased Premises or the Project
without Landlord's prior consent. Provided Tenant has notified
Landlord in writing at least 10 days prior to the commencement
of any such work within the Leased Premises, Landlord will not
unreasonably withhold its approval of non-structural
alterations or physical additions to the Leased Premises which
cost $10,000 or less in each case subject to the following
limitations: (i) such alterations and additions will not
impair the structural integrity of the Building, (ii) such
alterations and additions will not affect the mechanical,
electrical, plumbing, heating, air-conditioning or ventilation
systems of the Leased Premises, (iii) such alterations and
additions are accomplished in a good and workmanlike
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manner and in accordance with all applicable governmental
requirements, (iv) such alterations and additions are not
visible from outside the Leased Premises, and (v) Tenant
obtains all applicable governmental permits and approvals
required in connection with such alterations and additions.
All alterations, additions, and improvements made to, or
fixtures or other improvements placed in or upon, the Leased
Premises, whether temporary or permanent in character, by
either party (except only Tenant's movable trade fixtures,
office furniture, and equipment) are a part of the Project and
are the property of Landlord when they are placed in the
Leased Premises without compensation to Tenant. Alterations,
improvements, and additions in and to the Leased Premises
requested by Tenant must be made in accordance with complete
and accurate plans and specifications and construction
documents [including, without limitation, complete mechanical,
electrical and plumbing (MEP) requirements] prepared by Tenant
and approved in advance by Landlord. All work must be
performed at Tenant's expense either by Landlord or by
contractors and subcontractors approved in advance by
Landlord. If the work is not performed by Landlord, then all
work performed by Tenant's contractors and subcontractors is
subject to the following conditions:
(1) Each contractor and subcontractor must deliver
evidence satisfactory to Landlord that the insurance
specified on EXHIBIT D is in force prior to
commencing work.
(2) Tenant shall ensure that all workers are cooperative
with Project personnel and comply with all Project
Rules and Regulations.
(3) Tenant must deliver to Landlord evidence that Tenant
has obtained all necessary governmental permits and
approvals for the improvements or alterations prior
to starting any work.
(4) All construction must be done in a good and
workmanlike manner and is subject to approval by
Landlord during and after construction to determine
compliance with the approved plans and specifications
and construction documents, in its sole discretion.
(5) Lien releases from each contractor and subcontractor
must be submitted to Landlord within 5 days after
completion of the work performed by the contractor or
subcontractor.
(6) Within 30 days after completion of any improvements
or alterations, Tenant, at its cost, shall deliver to
Landlord 2 reproducible copies of "as-built" plans
and specifications (1/8" scale) for each floor where
alterations or improvements were made.
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All changes to the plans and specifications and construction
documents are also subject to Landlord's prior approval.
(b) Tenant must use Landlord's fire protection contractor and must
either (1) use Landlord's MEP engineer to prepare the MEP
portions of the plans and specifications and construction
documents, or (2) reimburse the cost of one review by
Landlord's MEP engineer of the plans and specifications and
the construction documents. Landlord shall cause its fire
protection contractor and MEP engineer to perform the work for
Tenant at Landlord's contracted rates.
(c) All alterations and improvements by Tenant must comply with
all Applicable Laws. Tenant and its consultants must
coordinate any alterations or additions relating to compliance
with Access Laws with Landlord and Landlord's Access Law
compliance plan for the Project in preparing the plans and
specifications and construction documents. If Tenant's
alterations or additions to the Leased Premises or the manner
in which Tenant uses the Leased Premises cause Landlord to
make any alterations or improvements to the Project to comply
with the provisions of the Americans With Disabilities Act of
1990 (as amended), the Texas Architectural Barriers Act (as
amended) [Tex. Rev. Civ. Stat. Ann. Art. 9102], and any
similar law, rule or regulation relating to access by disabled
persons to the Leased Premises or the Project (collectively,
ACCESS LAWS), Tenant shall reimburse Landlord for the cost of
the alterations or improvements upon demand as additional
Rent. Neither Landlord's approval of Tenant's plans and
specifications for the alterations or improvements nor
Landlord's acceptance of Tenant's as-built plans is a
confirmation or agreement by Landlord that the improvements
and alterations comply with Applicable Laws.
(d) Within 30 days after Tenant installs any telephone or data
cables, whether or not in connection with an alteration or
addition to the Leased Premises, Tenant, at its cost, shall
deliver to Landlord 2 reproducible copies of "as-built" plans
and specifications (1/8" scale) showing the location of the
telephone and data cables.
(e) As between Landlord and Tenant, for purposes of the insurance
requirements of Paragraph 18, Tenant has an insurable interest
in all of the Tenant Improvements and alterations made by
Tenant in the Leased Premises, but all of the Tenant
Improvements and alterations shall be surrendered to Landlord
with the Leased Premises upon the expiration or earlier
termination of the Lease as set forth in Paragraph 25 of the
Lease.
14. USE AND OCCUPANCY.
(a) The Leased Premises may be used and occupied by Tenant only
for general business offices and incidental uses and for no
other purpose without Landlord's prior consent, in its sole
discretion. Tenant shall use and maintain the Leased Premises
in a clean,
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careful, safe, and proper manner and shall comply with all
laws, ordinances, orders, rules, and regulations of all
governmental bodies (state, federal, and municipal) applicable
to or having jurisdiction over the use, occupancy, operation,
and maintenance of the Leased Premises and the Project,
including without limitations all applicable environmental
laws and the Access Laws (those laws, ordinances, orders,
rules, decisions, and regulations being called APPLICABLE
LAWS).
(b) Tenant may not deface or injure the Leased Premises or the
Project or any part thereof or overload the floors of the
Leased Premises. Tenant may not commit waste or permit waste
to be committed or cause or permit any nuisance on or in the
Leased Premises or the Project. Tenant shall pay Landlord on
demand as additional Rent for any damage to the Leased
Premises or to any other part of the Project caused by any
negligence or willful act or any misuse or abuse (whether or
not the misuse or abuse results from negligence or willful
acts) by Tenant or any Tenant Party or any other person
(except Landlord or any of its agents, employees, or
contractors) authorized by Tenant to enter upon the Leased
Premises.
(c) Tenant may not use or allow the Leased Premises to be used for
any purpose prohibited by any Applicable Law, or by any
restrictive covenants applicable to the Project, or as a
manned express mail pick up center for delivery services like
Airborne and Federal Express, or for the sale of bakery
products for dessert items including cookies, fudge slices,
bar type cookies and cakes, cupcakes and brownies, whether the
product is sold packaged or unpackaged if the sales would
constitute more than 10% of Tenant's gross receipts, or for a
mini-bank or bank. Tenant may not sell, purchase, or give
away, or permit, except with Landlord's prior approval, the
sale, purchase, or gift of food in any form by or to any
Tenant Party or any other parties at the Leased Premises or
the Project. Tenant also will not use any part of the Leased
Premises for the following uses: health care services,
telephone or telegraph agency, radio, television or other
communication station, employment agency, public restaurant or
bar, retail, wholesale or discount shop for sale of
merchandise, retail service shop, school or classroom, or
governmental or quasi-governmental bureau, department or
agency. Tenant shall conduct its business and occupy the
Leased Premises and control all Tenant Parties so as not to
create any nuisance or interfere with, annoy, or disturb any
other tenants in the Project or Landlord in its management of
the Project and so as not to injure the reputation of the
Project.
(d) Tenant may not erect, place, or allow to be placed any sign,
advertising matter, stand, booth, or showcase in or upon the
doorsteps, vestibules, halls, corridors, doors, walls,
windows, or pavement of the Project visible outside the Leased
Premises (except for lettering on the door or doors to the
Leased Premises as allowed by the Rules and Regulations
attached as EXHIBIT D) without the prior consent of Landlord;
provided, however, that on the interior of any floor leased
entirely by Tenant, Tenant may
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install signage approved by Landlord, which approval shall not
be unreasonably withheld, that is not visible from the
exterior of the Leased Premises.
(e) Tenant may not use or allow or permit the Leased Premises to
be used in any way or for any purpose that:
(1) Landlord deems hazardous on account of the
possibility of fire or other casualty;
(2) is visible from the exterior of the Leased Premises,
adversely affects ventilation in other areas of the
Project, creates unreasonable elevator loads, causes
structural loads to be exceeded, or creates
unreasonable noise levels;
(3) increases the rate of fire or other insurance for the
Project or its contents or in respect of the
operation of the Project; or
(4) renders the Project uninsurable at normal rates by
responsible insurance carriers authorized to do
business in the State of Texas or renders void or
voidable any insurance on the Project.
If insurance premiums are increased because of Tenant's use of
the Leased Premises, then, in addition to any other remedies
Landlord may have, Tenant shall pay the amount of the increase
to Landlord as additional Rent within 5 days after demand.
15. MECHANICS' LIENS - TENANT'S OBLIGATIONS.
Tenant may not cause or permit any mechanic's or materialman's lien to
be placed upon Landlord's interest in the Project or the Leased
Premises or any part thereof or against Landlord's interest under this
Lease by any contractor, subcontractor, laborer, or materialman
performing any labor or furnishing any materials to Tenant for any
improvement, alteration, or repair of or to the Leased Premises, the
Project, or any part thereof. If any lien is filed on Landlord's
interest or Tenant's interest in the Leased Premises, Tenant shall
cause the same to be discharged of record within 20 days after filing.
If Tenant does not discharge the lien within the 20-day period, then,
in addition to any other right or remedy of Landlord, Landlord may, but
is not obligated to, discharge the lien by paying the amount claimed to
be due or by procuring the discharge of the lien by deposit in court or
bonding. Any amount paid by Landlord relating to any lien not caused by
Landlord, and all reasonable legal and other expenses of Landlord,
including reasonable attorneys' fees, in defending any action or in
procuring the discharge of any lien, with interest thereon at the
Interest Rate from date of payment by Landlord until paid by Tenant, is
payable by Tenant to Landlord on demand as additional Rent.
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16. LIMITATIONS ON LIABILITY OF LANDLORD; WAIVER.
(a) To the fullest extent permitted by law, Tenant, on its behalf
and on behalf of all Tenant Parties, waives all claims (in
law, equity, or otherwise) against Landlord and Landlord's
officers, directors, shareholders, partners, trustees,
members, agents, employees, property manager and independent
contractors (singularly, a Landlord Party and collectively,
Landlord Parties) arising out of, knowingly and voluntarily
assumes the risk of, and agrees that Landlord Parties are not
liable to any Tenant Parties for any of the following:
(1) any injury or damage to person or property (including
the resulting loss of use, economic losses and
consequential or resulting damages of any kind from
any cause) due to the condition or design of, or any
defect in, the Leased Premises or Project that exists
now or occurs in the future, except for Landlord's
gross negligence or willful misconduct;
(2) any injury or damage to person or property (including
the resulting loss of use, economic losses and
consequential or resulting damages of any kind from
any cause) due to the Leased Premises or Project or
related improvements or appurtenances being out of
repair, or defects in or failure of pipes or wiring,
or backing up of drains, or the bursting or leaking
of pipes, faucets, and plumbing mixtures, or gas,
water, steam, electricity, or oil leaking, escaping,
or flowing into the Leased Premises, unless caused by
Landlord's willful misconduct or gross negligence;
(3) any loss or damage caused by the acts or omissions of
other tenants in the Project or of any other persons,
excepting only the willful misconduct or gross
negligence of duly authorized employees and agents of
Landlord; or
(4) any loss or damage to property or person occasioned
by theft, fire, act of God, public enemy, injunction,
riot, insurrection, war, court order, requisition,
order of governmental authority, and any other cause
beyond the control of Landlord Parties.
(b) Notwithstanding the foregoing or anything else to the contrary
contained in this Lease, the liability of Landlord to any
Tenant Party for any default, indemnity by, or other
obligation or liability of Landlord under this Lease is
limited to the interest of Landlord in the Project. No
Landlord Party has any personal liability for any amounts
payable or obligations performable by Landlord under this
Lease.
(c) The provisions of this Paragraph 16 shall survive the
expiration or earlier termination of this Lease.
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17. TENANT'S INDEMNIFICATION OF LANDLORD: ASSUMPTION: EMPLOYEES' CLAIMS.
(a) Tenant shall indemnify, defend, and hold Landlord Parties
harmless from all fines, suits, losses, costs, liabilities,
claims, demands, actions, and judgments (collectively, claims)
arising out of or relating to any of the following:
(1) any breach or default in performance of any
obligation on Tenant's part to be performed under
this Lease, whether before or during the Lease Term
or after its expiration or earlier termination;
(2) any act, omission, negligence, or misconduct of
Tenant or any Tenant Party, or of any other person
entering upon the Leased Premises under or with the
express or implied invitation or permission of
Tenant;
(3) any alterations, activities, work, or things done,
permitted, allowed, or suffered by Tenant Parties in,
at, or about the Leased Premises or the Project,
including the violation by Tenant or any Tenant Party
of any law, ordinance, or governmental order of any
kind; and
(4) the occupancy or use by Tenant or any Tenant Party of
the Leased Premises or the Project.
(b) Tenant is not required to indemnify, defend, or hold Landlord
Parties harmless from any claim, demand, fine, suit, loss,
liability, action or judgment arising solely from Landlord's
gross negligence or willful misconduct (except for damage to
the Tenant Improvements or Tenant's personal property,
fixtures, furniture, and equipment in the Leased premises to
the extent that such damage is covered by insurance that
Tenant is required to carry under this Lease (or would have
been covered had Tenant carried the insurance required under
the provisions of this Lease).
(c) If any Landlord Party is made a party to any litigation
commenced against any Tenant Party or relating to this Lease
or to the Leased Premises, against which Tenant has agreed to
indemnify Landlord Parties pursuant to this Lease, then Tenant
shall pay all costs and expenses, including attorneys' fees
and court costs, incurred by or imposed upon the Landlord
Party by virtue of the litigation. The amount of all costs and
expenses, including attorney's fees and court costs, is a
demand obligation payable by Tenant to Landlord as additional
Rent bearing interest at the Interest Rate from the date of
payment by Landlord until paid by Tenant.
(d) Deleted.
(e) The provisions of this Paragraph 17 survive the expiration or
earlier termination of this Lease.
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(f) The indemnification provisions of this Paragraph 17 shall not
be construed or interpreted as in any way restricting,
limiting, or modifying Tenant's insurance or other obligations
under this Lease and is independent of Tenant's insurance and
other obligations under this Lease.
18. TENANT'S INSURANCE.
(a) Tenant shall, at its expense, maintain at all times during the
Lease Term (and prior to the Lease Term with respect to
activities of Tenant under the Lease at the Project) insurance
as set forth below:
(1) Commercial General Liability Insurance (1986 ISO Form
or its equivalent) written on an "occurrence" basis
with respect to the business carried on, in or from
the Leased Premises and Tenant's use and occupancy of
the Leased Premises (including a contractual
liability) in an amount not less than $1,000,000 per
occurrence and $2,000,000 general aggregate per
location for bodily injury and property damages (or
with increased limits as may be required from time to
time by Landlord by giving notice to Tenant) and
without any deductible;
(2) Statutory Workers' Compensation Insurance in
compliance with the Worker's Compensation Laws of the
state in which the Leased Premises is located and
including at least 100/500/100 Employers Liability
Insurance.
(3) Excess/Umbrella Liability Insurance, applying on at
least a "following form" basis, with a minimum limit
of $3,000,000 each Occurrence and Aggregate, where
applicable; and
(4) "ISO Special Form" Property Insurance, including but
not limited to, coverage for:
(A) All office furniture, trade fixtures, office
equipment, merchandise, and all other items
of Tenant's property in, on, at, or about the
Leased Premises and the Building, including
property installed by, for, or at the expense
of Tenant;
(B) Tenant Improvements; and
(C) Except for Standard Improvements, all other
improvements, betterments, alterations, and
additions to the Leased Premises.
Tenant's Property Insurance must also fulfill the
following requirements:
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(AA) It must be written on the equivalent of an
ISO "Special Form" Property Insurance Form or
an equivalent form acceptable to Landlord;
(BB) It must include earthquake and flood as
covered causes of losses;
(CC) It must include an agreed amount endorsement
for not less than one-hundred percent (100%)
of the full replacement cost (new without
deduction for depreciation) of the covered
items and property; and
(DD) It must have a deductible no greater than
$25,000 for each loss.
It is the parties' intent that Tenant structure its property
insurance program so that no coinsurance penalty is imposed
and there are no valuation disputes with any insurer or with
Landlord. The property insurance coverage must include
vandalism and malicious mischief coverage.
(b) Tenant's policies must be written by an insurance company or
companies with a current A.M. Best's rating of A-IX or better
and be admitted to do business in the State of Texas.
Landlord, any mortgagees, any lessor under any ground,
primary, or master lease, and Landlord's property management
company must be named as additional insureds without
restriction under the liability, property and umbrella
policies. Tenant shall obtain a written obligation on the part
of each insurance company to notify Landlord at least 45 days
prior to cancellation, non-renewal, or material reduction of
the coverage.
(c) Tenant shall deliver copies of duly executed certificates of
insurance to Landlord prior to occupying any part of the
Leased Premises, and on an annual basis thereafter. If Tenant
fails to comply with these insurance requirements, Landlord
may obtain the required insurance and Tenant shall pay to
Landlord on demand as additional Rent the premium cost thereof
plus interest at the Interest Rate from the date of payment by
Landlord until paid by Tenant.
19. LANDLORD'S INSURANCE.
Landlord shall carry, or cause to be carried: (A) Commercial General
Liability Insurance with limits of liability of not less than
$1,000,000 each occurrence, single limit Bodily Injury and Property
Damage combined; and (B) the equivalent of ISO Special Form Property
Insurance insuring the Project for the full replacement value thereof;
excluding Tenant Improvements and Tenant's merchandise, trade fixtures,
furnishings, equipment, personal property, and any alterations or
additions made by Tenant.
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20. RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without notice and
without liability to, and without consent of, any Tenant Party for
damage or injury to property, persons, or business and without
effecting an eviction, constructive or actual, or disturbance of
Tenant's use or possession or giving rise to any claim for set-off or
abatement of Rent:
(a) To change the Building's or the Project's name or street
address; provided Landlord shall reimburse Tenant for the cost
of a 1 month supply of stationery.
(b) To install, affix, and maintain any signs on the exterior and
interior of the Project.
(c) To designate and approve, prior to installation, all types of
window shades, blinds, drapes, awnings, window ventilators,
and similar equipment, and to control all internal lighting
that is visible from the exterior of the Project.
(d) To designate, restrict, and control all sources within the
Project where Tenant may obtain ice, drinking water, towels,
toilet supplies, catering, food and beverages, and like or
other services on the Leased Premises and, in general, the
exclusive right to designate, limit, restrict, and control any
business and any service in or to the Project and its tenants.
(e) To enter upon the Leased Premises with reasonable notice
(except in the case of an emergency when no notice shall be
required) at reasonable hours to inspect, clean, or make
repairs or alterations to the Leased Premises (but without any
obligation to do so, except as expressly specified in this
Lease), to make repairs or alterations to any part of the
Building or the Building systems (including adjacent
premises), to show the Leased Premises to prospective lenders,
purchasers, and, during the last 12 months of the Lease Term,
to show the Leased Premises to prospective tenants at
reasonable hours and, if the Leased Premises are vacant, to
prepare them for reoccupancy. Notwithstanding the foregoing,
Landlord shall not enter into areas previously designated in
writing by Tenant as high security areas unless (i) Landlord
shows cause therefor and is accompanied by a representative of
Tenant, or (ii) in the event of an emergency. Landlord's
obligations under this Lease shall be reduced to the extent of
Tenant's refusal to grant access to such portions of the
Leased Premises.
(f) To retain at all times, and to use in appropriate instances,
keys to all doors within and into the Leased Premises. No
locks may be changed or added without the prior consent of
Landlord.
(g) To decorate and make repairs, alterations, additions, changes,
or improvements, whether structural or otherwise, in and about
the Project, and for those purposes to enter upon the Leased
Premises and, during the continuance of the work, temporarily
close doors, entryways, public space, and corridors in the
Project, to interrupt or temporarily suspend Project services
and facilities, and to change the arrangement
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and location of entrances or passageways, doors and doorways,
corridors, elevators, stairs, toilets, or other public parts
of the Project, all without abatement or set off of Rent or
affecting any of Tenant's obligations under this Lease, so
long as the Leased Premises are reasonably accessible. In
exercising the foregoing rights, Landlord agrees to use
reasonable efforts not to unreasonably interfere with the
conduct of Tenant's business in the Leased Premises, including
making reasonable efforts to cause voluntary and intentional
total interruptions of Essential Services to occur after
Building Standard Hours.
(h) To have and retain a paramount title to the Leased Premises
and the Project free and clear of any act of Tenant purporting
to burden or encumber the Leased Premises or the Project.
(i) To grant to anyone the exclusive right to conduct any business
or render any service in or to the Project, provided the
exclusive right does not operate to exclude Tenant from the
uses expressly permitted in this Lease.
(j) To approve the weight, size, and location of safes, heavy
equipment, file cabinets, book shelves, and other heavy items
in and about the Leased Premises and the Project and to
require all those items and all furniture to be moved into and
out of the Project and the Leased Premises only at times and
in a manner specified by Landlord. Movements of Tenant's
property into or out of the Project and within the Project are
entirely at the risk and responsibility of Tenant. To require
permits before allowing Tenant's property to be moved into or
out of the Project.
(k) To take reasonable measures as Landlord deems advisable for
the security of the Project and its occupants including,
without limitation, the search of all persons entering or
leaving the Project, the evacuation of the Project for cause,
suspected cause, or for drill purposes, the temporary denial
of access to the Project, and the closing of the Project after
Building Standard Hours, subject to Tenant's right to
admittance when the Project is closed after Building Standard
Hours under reasonable regulations Landlord may prescribe from
time to time.
(l) To transfer, assign, or convey, in whole or in part, the
Project and Landlord's rights under this Lease. If Landlord
transfers, assigns, or conveys its rights under this Lease,
Landlord is released from any further obligations under this
Lease and Tenant shall look solely to the successor in
interest of Landlord for performance of the obligations of
"Landlord" under this Lease.
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21. FIRE OR OTHER CASUALTY
(a) If the Leased Premises or any part thereof are damaged by fire or
other casualty, Tenant shall give prompt notice thereof to Landlord.
If the Project or the Building is so damaged by fire or other casualty
that substantial alteration or reconstruction of the Project or the
Building is, in Landlord's sole opinion, required (whether or not the
Leased Premises are damaged) or if any mortgagee under a mortgage or
deed of trust covering the Project requires that the insurance
proceeds payable as a result of the fire or other casualty be used to
retire the mortgage debt, Landlord may, at its sole option, terminate
this Lease by giving Tenant notice of termination within 90 days after
the date of the damage. If Landlord terminates this Lease under this
Paragraph, the Rent abates as of the date of the damage.
(b) If Landlord does not elect to terminate this Lease, Landlord shall
within 90 days after the date of the damage commence to repair and
restore the Project (except that Landlord is not responsible for
delays outside its control) to substantially the same condition in
which it was immediately prior to the casualty. Upon such damage,
Tenant shall assign to Landlord (or Landlord's designee) all insurance
proceeds payable to Tenant under the property insurance required
pursuant to Paragraph 18 (save and except proceeds paid for loss of
Tenant's personal property) and Landlord shall repair and replace the
Standard Improvements, Tenant Improvements and alterations installed
in the Leased Premises; provided that Landlord shall in no event be
obligated to expend for such repair or replacement amounts in excess
of the insurance proceeds available to Landlord (over and above
amounts going to the mortgagee of the Building and/or Project).
Landlord is not liable for any inconvenience or annoyance to any
Tenant Party or injury to the business of Tenant resulting in any way
from casualty damage or the repairs; provided, during the time and to
the extent the Leased Premises are unfit for occupancy, Landlord
shall, either furnish Tenant with comparable office space at
prevailing market rates or a fair diminution of Rent, in accordance
with the mutual agreement of Landlord and Tenant at the time.
(c) If the damages are caused by the negligence or willful misconduct of
any Tenant Party, Rent does not abate and Tenant shall pay to Landlord
on demand as additional Rent any damages in excess of the amount paid
by insurance proceeds received by Landlord.
22. CONDEMNATION.
(a) If all or substantially all of the Project or the Building is taken
for any public or quasi-public use under any governmental law,
ordinance, or regulation or by right of eminent domain or is sold to
the condemning authority in lieu of condemnation, then this Lease
terminates as of the date which is 7 days prior to the date when
physical
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possession of the portion of the Building or Project is taken by the
condemning authority. If less than all or substantially all of the
Project or the Building is taken or sold, Landlord (whether or not the
Leased Premises are affected) may terminate this Lease by giving
notice to Tenant within 90 days after the right of election accrues,
in which event this Lease terminates as of the date which is 7 days
prior to the date when physical possession of the portion of the
Building and Project is taken by the condemning authority.
(b) If this Lease is not terminated upon any taking or sale of less than
all or substantially all of the Project:
(1) the Rent reduces by an amount representing that part of the Rent
properly allocable to the portion of the Leased Premises taken or
sold; and
(2) Landlord shall, at Landlord's sole expense, restore the Project
to substantially its former condition to the extent reasonably
deemed feasible by Landlord, but:
(A) Landlord's restoration obligation does not exceed the scope
of the work done by Landlord in originally constructing the
Project and installing Standard Improvements in the Leased
Premises; and
(B) Landlord is not required to spend for the work an amount in
excess of the amount received by Landlord as compensation or
damages (over and above amounts going to the mortgagee of
the property taken) for the part of the Project so taken.
(C) Landlord is entitled to receive all of the compensation
awarded upon a taking of any part or all of the Project,
including any award for the value of the unexpired Lease
Term. Tenant is not entitled to and expressly waives all
claim to any compensation; provided, Tenant is entitled to
receive any award for damages to the Tenant Improvements not
paid for by Landlord.
23. TAXES ON TENANT'S PROPERTY.
Tenant shall pay, and indemnify, defend, and hold Landlord harmless
against, all taxes levied or assessed against personal property, furniture,
fixtures, or other improvements placed by or for Tenant in the Leased
Premises. If any taxes for which Tenant is liable are levied or assessed
against Landlord or Landlord's property and if Landlord is required to pay
the taxes or if the assessed value of Landlord's property is increased by
inclusion of personal property, furniture, fixtures, or other improvements
placed by or for Tenant in the Leased Premises and Landlord elects to pay
the increased taxes, Tenant shall pay to Landlord on demand as
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<PAGE> 33
additional Rent that part of the taxes for which Tenant is liable under
this Paragraph. If Landlord is advised of any increase in property
valuation which could give rise to a property tax increase for which
Landlord is entitled to indemnification under this Paragraph 23, then
Landlord shall promptly notify Tenant of such increase and Tenant shall
thereafter have the right to contest such increase provided Tenant contests
such increase in accordance with all applicable laws as to Tenant's
personal property only and Tenant either pays the resulting tax increase
before it becomes due or provides Landlord with adequate security for the
payment of such tax and any penalty and interest should the contest be
denied.
24. WAIVER OF SUBROGATION.
Each party waives all claims that arise or may arise in its favor against
the other party, or anyone claiming through or under them, by way of
subrogation or otherwise, during the Lease Term or any extension or renewal
thereof, for all losses of, or damage to, any of its property (whether or
not the loss or damage is caused by the fault or negligence of the other
party or anyone for whom the other party is responsible), which loss or
damage is covered by valid and collectible fire and extended coverage
insurance policies, to the extent that the loss or damage is recovered
under the insurance policies. These waivers are in addition to, and not in
limitation of, any other waiver or release in this Lease with respect to
any loss or damage to property of the parties. Since these mutual waivers
preclude the assignment of any claim by way of subrogation (or otherwise)
to an insurance company (or any other person), each party shall immediately
give each insurance company issuing to it policies of fire and extended
coverage insurance written notice of the terms of these mutual waivers, and
have the insurance policies properly endorsed, if necessary, to prevent the
invalidation of the insurance coverages by reason of these waivers.
25. SURRENDER UPON TERMINATION OR EXPIRATION; HOLDOVER.
(a) Upon the Expiration Date or any earlier termination of this Lease,
Tenant shall: (1) surrender to Landlord possession of the Leased
Premises in good repair and condition, reasonable wear and tear and
damages or destruction by any insured casualty excepted, and (2)
deliver to Landlord all keys to the Leased Premises and all parking
access cards. If Tenant does not immediately surrender possession,
Landlord may enter upon and take possession of the Leased Premises and
expel or remove Tenant and any other person who may be occupying the
Leased Premises, or any part thereof, by force if necessary, without
having any civil or criminal liability therefor.
(b) If Tenant or any of its successors in interest continues to hold any
part of the Leased Premises after the termination of this Lease, the
holding over is a tenancy at sufferance at a monthly rental equal to
175% of the monthly Minimum Rent payable at the time of termination,
plus the payment of all other Rent payable under this Lease. While
Tenant or its successor continues to hold the Leased Premises after
the
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termination of this Lease, the tenancy is subject to all terms of this
Lease; provided, all expansion rights, first refusal rights, first
notice rights, first offer rights, and renewal rights automatically
terminate. Landlord shall have the right to terminate such tenancy at
any time at will on one (1) day notice.
(c) No payments of money by Tenant to Landlord after the termination of
this Lease reinstate, continue, or extend the Lease Term and no
extension of this Lease after the termination or expiration thereof is
valid unless it is reduced to writing and signed by Landlord and
Tenant. Nothing in this Paragraph may be construed to give Tenant the
right to hold over beyond the Expiration Date or any earlier
termination of this Lease or preclude Landlord from having the right
to dispossess or otherwise terminate Tenant's right of possession. Any
month-to-month tenancy is terminable upon notice from Landlord.
26. REMOVAL OF TENANT'S PROPERTY.
(a) All furniture, movable trade fixtures, and equipment installed by or
on behalf of Tenant remains the property of Tenant and must be removed
by Tenant at its sole risk and expense at the termination of this
Lease, but may not be removed prior to the termination of this Lease
without Landlord's prior consent. Any removal of Tenant's property
must be accomplished in a good and workmanlike manner so as not to
damage the Leased Premises or the Project. Tenant, or Landlord at
Tenant's expense, shall repair any damage to the Leased Premises or
the Project caused by any removal. All furniture, movable trade
fixtures, and equipment installed by Tenant not removed within 15 days
after termination of the Lease are conclusively presumed to be
abandoned by Tenant. Landlord may, at its option, take the possession
of the property (including any special use improvements) and either
(1) declare it to be the property of Landlord by notice to Tenant or
(2) at the sole risk and expense of Tenant and without payment of any
compensation to Tenant, remove it or any part thereof in any manner
that Landlord chooses and store, sell, or otherwise dispose of it
without incurring liability to Tenant or any other person. All amounts
payable to Landlord under this Paragraph plus interest at the Interest
Rate from date of payment by Landlord until paid by Tenant are due on
demand as additional Rent.
(b) Upon request of Landlord, Tenant shall also remove, at its sole risk
and expense, any special use improvements installed by or on behalf of
Tenant in connection with the completion of the Tenant Finish Work (as
defined in EXHIBIT F), any Additional Work, or otherwise. The term
SPECIAL USE IMPROVEMENTS means all special improvements installed
specifically for use by Tenant and includes, without limitation,
telephone and data cables, computer floors and cables, cafeteria
equipment, telephones and telephone equipment, supplemental air
conditioning units and related equipment, equipment supplying excess
electricity to the Leased Premises, and similar items. Any removal
must be accomplished in a good and
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workmanlike manner so as not to damage the Leased Premises or the
Project. Tenant, or Landlord at Tenant's expense, shall repair any
damage to the Leased Premises or the Project caused by any removal.
27. EVENTS OF DEFAULT.
The following are events of default (EVENTS OF DEFAULT) by Tenant under
this Lease:
(a) Tenant fails to pay any Rent when due and the failure continues for a
period of 5 days.
(b) Tenant fails to comply with any of the terms of this Lease, other than
the payment of Rent, and does not cure the failure within 20 days
after Landlord delivers notice of the failure to Tenant or, if such
failure is one which cannot be cured within such 20 day period, Tenant
fails to begin curing such failure within such 20 day period and
diligently pursue such cure to completion within 40 days after the
expiration of such 20 day period.
(c) Tenant or Guarantor becomes insolvent, makes a transfer in fraud of
creditors, commits any act of bankruptcy, makes an assignment for the
benefit of creditors, or admits in writing its inability to pay its
debts as they become due.
(d) Tenant or Guarantor files a petition under any section or chapter of
the Bankruptcy Code of the United States, as amended, or under any
similar law or statute of the United States or any state thereof, or
Tenant or Guarantor is adjudged bankrupt or insolvent in proceedings
filed against Tenant or Guarantor, or a petition or answer proposing
the adjudication of Tenant or Guarantor as a bankrupt or its
reorganization under any present or future federal or state bankruptcy
or similar law is filed in any court and the petition or answer is not
discharged or denied within 120 days after filing.
(e) A receiver or trustee is appointed for all or substantially all of the
assets of Tenant or Guarantor or of the Leased Premises or of any of
Tenant's property located therein in any proceeding brought by Tenant
or Guarantor, or any receiver or trustee is appointed in any
proceeding brought against Tenant or Guarantor and is not discharged
within 120 days after appointment or Tenant or Guarantor shall consent
to or acquiesce in the appointment.
(f) Tenant, if a natural person, dies or becomes incapacitated or, if
Tenant is not a natural person, Tenant is dissolved or ceases to
exist.
(g) Tenant's leasehold estate is taken on execution or other process of
law in any action against Tenant.
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(h) Tenant does not conduct its business in any substantial portion of the
Leased Premises for more than 5 days.
28. LANDLORD'S REMEDIES.
If an Event of Default occurs, Landlord may then or any time thereafter
while the Event of Default continues and without any further notice or
opportunity to cure except as expressly set forth in this Paragraph pursue
any one or more of the following remedies:
(a) Terminate this Lease (without terminating Tenant's obligation to pay
Rent for the balance of the Lease Term) by giving notice to Tenant, in
which event Tenant shall immediately surrender the Leased Premises to
Landlord. If Tenant fails to surrender the Leased Premises, Landlord
may, without prejudice to any other remedy it has for possession or
arrearages in Rent, take possession of the Leased Premises and expel
or remove Tenant and any other person occupying the Leased Premises,
or any part thereof, without being liable for prosecution or any claim
of damages. Tenant shall pay to Landlord on demand as additional Rent
the amount of all loss and damage Landlord suffers by reason of the
termination, whether through inability to relet the Leased Premises on
satisfactory terms or otherwise. Except to the extent required by law,
Landlord has no duty to re-let the Leased Premises. Landlord's damages
specifically include, but are not limited to: (1) all reasonable
expenses necessary to re-let the Leased Premises including the cost of
renovating, repairing, and altering the Leased Premises for a new
tenant or tenants, advertisements, and brokerage fees; and (2) any
increase in insurance premiums caused by the vacancy of the Leased
Premises. Nothing in this Lease limits Landlord's right to prove and
obtain in bankruptcy or insolvency proceedings damages by reason of
the termination of this Lease in an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when the
damages are to be proved, whether or not the amount is greater, equal
to, or less than the amount of the loss or damages referred to above.
(b) Take possession of the Leased Premises and remove Tenant or any other
person occupying the Leased Premises, or any part thereof, without
having any civil or criminal liability and without terminating this
Lease. Landlord may (but is under no obligation, except as may be
required by law, to) re-let the Leased Premises or any part thereof
for the account of Tenant, in the name of Tenant or Landlord or
otherwise, without notice to Tenant for a term or terms (which may be
greater or less than the period that would otherwise have constituted
the balance of the Lease Term) and on conditions (which may include
concessions or free rent) and for uses as Landlord in its sole
discretion may determine. Landlord may collect and receive any rents
payable by reason of any re-letting. Tenant shall pay Landlord on
demand as additional Rent all reasonable expenses necessary to re-let
the Leased Premises, which includes the cost of renovating, repairing,
and altering the Leased Premises for a new tenant or tenants,
advertisements, and brokerage fees, as well as any deficiency
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that may arise by reason of the reletting. Landlord is not liable for
any failure to relet the Leased Premises or any part thereof or for
any failure to collect any Rent due upon any re-letting. No taking of
possession of the Leased Premises by Landlord is an election on
Landlord's part to terminate this Lease unless a notice of termination
is given to Tenant under subparagraphs (a) or (e).
(c) Enter upon the Leased Premises without having any civil or criminal
liability and do whatever Tenant is obligated to do under the terms of
this Lease. Tenant shall reimburse Landlord on demand as additional
Rent for any expenses Landlord incurs in performing Tenant's
obligations under this Lease, together with interest at the rate of
18% per annum from the date incurred until repaid by Tenant. Landlord
is not liable for any damages resulting to Tenant from Landlord's
actions or omissions in performing Tenant's obligations, whether
caused by the negligence of Landlord or otherwise.
(d) Interrupt or cause the interruption of any utility service serving the
Leased Premises, deactivate Tenant's parking access cards, suspend
elevator service to the Leased Premises, remove, alter, or change any
door, window, attic hatchway cover to the Leased Premises, or any
lock, latch, hinge, hinge pin, doorknob, or other mechanism connected
to any door, window, or attic hatchway cover to the Leased Premises,
and intentionally prevent Tenant from entering the Leased Premises
without resort to judicial process. Landlord is under no obligation to
restore any door, window, or attic hatchway cover or any lock, latch,
hinge, hinge pin, doorknob, or other mechanism attached thereto or to
deliver or make available to Tenant any key to any door, window, or
attic hatchway cover until Tenant fully cures all Events of Default
then existing under this Lease.
(e) Terminate this Lease and forthwith repossess the Leased Premises and
remove all persons or property therefrom, and be entitled to recover
forthwith as damages a sum of money equal to the total of (i) the cost
of recovering the Leased Premises (including, without limitation,
attorneys' fees and costs of suit), (ii) the cost as reasonably
estimated by Landlord of any alterations of, or repairs to, the Leased
Premises which are necessary or proper to prepare the same for
reletting, (iii) the unpaid Rent owed at the time of termination, plus
interest thereon from due date at the rate of 18% per annum, (iv) the
present value of the balance of the Rent for the remainder of the Term
less the present value of the fair market rental value (and in
computing the fair market rental value the factors taken into account
shall include without limitation the market rental concessions and the
time necessary to relet the Leased Premises) of the Leased Premises
for said period (in each case using a discount rate of 8% per annum),
and (v) any other sum of money and damages owed by Tenant to Landlord.
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(f) If Tenant violates Section 27 (h), then Landlord, as its sole and
exclusive remedy, shall have the right, but not the obligation, at
Landlord's sole option, to terminate this Lease by delivering to
Tenant 30 days' prior written notice of the effective date of such
termination.
No repossession of or reentering all or any part of the Leased Premises,
and no re-letting of the Leased Premises or any part thereof, relieves
Tenant or Guarantor of any liabilities or obligations under this Lease, all
of which survive repossession or re-entering by Landlord. If Landlord
repossesses or re-enters all or any part of the Leased Premises after an
Event of Default, Tenant shall pay to Landlord the Rent required to be paid
by Tenant. No right or remedy of Landlord under this Lease is intended to
be exclusive of any other right or remedy. Each right and remedy of
Landlord is cumulative and all other rights or remedies under this Lease or
now or hereafter existing at law, in equity or by statute. In addition to
other remedies provided in this Lease, Landlord is entitled, to the extent
permitted by applicable law, to injunctive relief in case of the violation,
or attempted or threatened violation, of any of the terms of this Lease, or
to a decree compelling specific performance of the terms of this Lease.
Notwithstanding anything in this Lease to the contrary, if Landlord is
deemed to have a duty to mitigate its damages arising from a default by
Tenant under this Lease, then Landlord's duty to mitigate shall be limited
to using reasonable and good faith efforts to relet the Leased Premises,
which duty to relet the Leased Premises shall not (i) require Landlord to
give priority to the Leased Premises over other premises owned or managed
by Landlord or its affiliates, (ii) require Landlord to relet for less than
market rent, or (iii) require Landlord to relet to a tenant (or for a use)
which is not in keeping with the first-class character of the Project.
29. NO IMPLIED WAIVER.
The failure of Landlord or Tenant to insist at any time upon the strict
performance of any of the terms of this Lease or to exercise any option,
right, power, or remedy contained in this Lease is not a waiver of the
right or remedy for the future. The waiver of any breach of this Lease or
violation of the Rules and Regulations attached to this Lease does not
prevent a subsequent act, which would have originally constituted a breach
or violation, from having all the force and effect of an original breach or
violation. No express waiver affects any terms other than the ones
specified in the waiver and those only for the time and in the manner
specifically stated. Acceptance by Landlord of any Rent after the breach of
any of the terms of this Lease or violation of any Rule or Regulation is
not a waiver of the breach or violation or the right to collect applicable
late charges and interest, and no waiver by Landlord of any of the terms of
this Lease is effective unless expressed in writing and signed by Landlord.
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30. WAIVER BY TENANT.
Tenant waives and surrenders for itself and all persons or entities
claiming by, through, and under it, including creditors of all kinds: (A)
any right and privilege which it or any of them has under any present or
future constitution, statute, or rule of law to redeem the Leased Premises
or to have a continuance of this Lease for the Lease Term after termination
of Tenant's right of occupancy by order or judgment of any court or by any
legal process or writ, or under the terms of this Lease; (B) the benefits
of any present or future constitution, statute, or rule of law that exempts
property from liability for debt or for distress for Rent; (C) any
provision of law relating to notice or delay in levy of execution in case
of eviction of a tenant for nonpayment of Rent; (D) any rights, privileges,
and liens set out under Sections 91.004 and 93.003 of the Texas Property
Code (as amended), and Tenant exempts Landlord from any liability or duty
thereunder; and (E) any rights of Tenant to contest reappraisals of the
Project (but not ad valorem taxes on Tenant's personal property in the
Leased Premises) under Sections 41.143 and 42.015 of the Texas Tax Code (as
amended).
31. ATTORNEYS' FEES AND LEGAL EXPENSES.
If either party files litigation concerning the interpretation or
enforcement of this Lease, the prevailing party is entitled to recover from
the losing party the prevailing party's reasonable attorneys' fees, court
costs, and expenses, whether at the trial or appellate level.
32. SUBORDINATION.
(a) This Lease and all rights of Tenant under this Lease are subject and
subordinate to:
(1) any mortgage or deed of trust secured by a first lien against the
Project;
(2) all increases, renewals, modifications, consolidations,
replacements, and extensions of any first lien mortgage or deed
of trust;
(3) all ground, primary, or master leases now or hereafter affecting
the Building, the Project, or any portion thereof; and
(4) all leases, restrictions, easements, and encumbrances recorded in
the Real Property Records of Dallas County, Texas, to the extent
they validly affect the Project.
Tenant shall, upon demand at any time or times, execute, acknowledge,
and deliver to Landlord, or to Landlord's first mortgagee or any
lessor, any instruments that may be necessary or proper to more
effectively effect or evidence this subordination to any first
mortgage, first deed of trust, or ground, primary, or master lease.
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(b) If any first mortgage or first deed of trust against the Project is
foreclosed, or if any ground, primary, or master lease is terminated,
Tenant shall, upon request by the purchaser at the foreclosure sale or
the lessor under any ground, primary or master lease:
(1) attorn to the purchaser or lessor and recognize the purchaser or
lessor as "Landlord" under this Lease; and
(2) execute, acknowledge, and deliver to the purchaser or lessor an
instrument in appropriate form acknowledging the attornment.
(c) Tenant waives the provisions of any statute or rule of law, now or
hereafter in effect, that may give or purport to give Tenant any right
or election to terminate or otherwise adversely affect this Lease and
the obligations of Tenant under this Lease if any foreclosure sale or
ground, primary, or master lease termination occurs. This Lease is not
affected in any way whatsoever by any foreclosure sale or ground,
primary or master lease termination unless the holder(s) of the
indebtedness or other obligations secured by the mortgages or deeds of
trust declare otherwise.
(d) Notwithstanding the foregoing, any such first mortgagee or holder of a
first deed of trust or lessor under a ground, primary, or master lease
shall have the right, unilaterally, at any time to fully or partially
subordinate any such mortgage, deed of trust, or ground, primary or
master lease or other security instruments to this Lease on such terms
and subject to such conditions as such first mortgagee or ground,
primary, or master lessor may consider appropriate in its sole
discretion. Upon request, Tenant shall execute an instrument
confirming any such full or partial subordination.
(e) Notwithstanding the foregoing, Tenant shall have the right to approve
any subordination and non-disturbance agreements required of Tenant,
provided that Tenant hereby approves any subordination and
non-disturbance agreement that is not materially different from the
Subordination, Non-Disturbance and Attornment Agreement entered into
by Tenant and Landlord's First Mortgagee in connection with the
execution and delivery of this Lease.
33. QUIET ENJOYMENT.
If Tenant pays the Rent when due and timely performs all other obligations
of Tenant under this Lease, then Tenant may peaceably and quietly enjoy the
Leased Premises during the Lease Term without any disturbance from Landlord
or from any other person claiming by, through, or under Landlord, but not
otherwise, subject to the terms of this Lease and of the deeds of trust,
mortgages, ground, primary, or master leases, pedestrian tunnel agreements,
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skybridge agreements, parking garage operating agreements, ordinances,
leases, utility easements, and agreements affecting the Project.
34. NOTICE OF LANDLORD'S DEFAULT.
If any act or omission by Landlord occurs that would give Tenant the right
to damages from Landlord or the right to terminate this Lease due to
constructive or actual eviction from all or part of the Leased Premises or
otherwise, Tenant may not sue for damages or exercise any right to
terminate until (A) it gives notice of the act or omission to Landlord and
Landlord's first mortgagee, or ground, primary, or master lessor, if any,
and (B) a reasonable period of time for remedying the act or omission
elapses following the giving of the notice, during which time Landlord, its
agents, employees, first mortgagee or ground, primary, or master lessor,
are entitled to enter the Leased Premises and cure the act or omission.
During the period after the giving of the notice and during the curing of
the act or omission, the Rent payable by Tenant abates only to the extent
that any part of the Leased Premises is untenantable. For purposes of this
Paragraph, Landlord's first mortgagee's name and address for notice
purposes are: Pacific-St. Paul Partners, L.P., c/o Dang Phan, Donaldson,
Lufkin & Jenrette, 277 Park Avenue, 19th Floor, New York, NY 10172.
35. RULES AND REGULATIONS.
All Tenant Parties must comply with the Rules and Regulations (as changed
from time to time as hereinafter provided) attached as EXHIBIT C. Landlord
may at any time make reasonable changes to the Rules and Regulations or
promulgate other Rules and Regulations as Landlord deems advisable for the
safety, care, cleanliness, or orderliness of the Project. No changes are
effective until a copy of the changes is delivered to Tenant. Tenant is
responsible for the compliance with the Rules and Regulations by all Tenant
Parties. Landlord shall use reasonable efforts to enforce compliance by all
other tenants with the Rules and Regulations from time to time in effect,
but Landlord is not responsible to Tenant for failure of any person to
comply with the Rules and Regulations.
36. ESTOPPEL CERTIFICATE.
Tenant shall, from time to time on not less than 10 days' prior notice by
Landlord, execute, acknowledge, and deliver to Landlord an Estoppel
Certificate in substantially the form attached as Exhibit E.
37. NOTICES.
All notices, requests, approvals, and other communications required or
permitted to be delivered under this Lease must be in writing and are
effective:
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(a) on the business day sent if sent by telecopier prior to 5:00 p.m.,
Dallas, Texas time, and the sending telecopier generates a written
confirmation of sending;
(b) the next business day after delivery on a business day to a
nationally-recognized-overnight-courier service for prepaid overnight
delivery;
(c) if orderly delivery of the mail is not then disrupted or threatened,
in which event some method of delivery other than the mail must be
used, 3 days after being deposited in the United States mail,
certified, return receipt requested, postage prepaid; or
(d) upon receipt if delivered personally or by any method other than by
telecopier (with written confirmations
nationally-recognized-overnight-courier service, or mail);
in each instance addressed to Landlord or Tenant, as the case may be, at
the address specified in Paragraph 1 of this Lease, or to any other address
either party may designate by 10 days' prior notice to the other party.
With respect to any default notice to Landlord, a copy of the notice must
be sent on the same date as sent to Landlord to:
Baker & Botts, L.L.P.
800 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Attention: Jonathan W. Dunlay
Telecopier No.: (214) 953-6503
38. HAZARDOUS MATERIALS.
(a) Tenant may not:
(1) cause or permit the escape, disposal, or release in the Leased
Premises or the Project of any biologically active, chemically
active, or hazardous substances or materials (collectively,
HAZARDOUS SUBSTANCES); or
(2) bring, or permit any other Tenant Party to bring, any hazardous
substances into the Leased Premises or the Project.
The term HAZARDOUS SUBSTANCES includes, but is not limited to, those
described in the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section
6901 et seq., the Texas Water Code,
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the Texas Solid Waste Disposal Act, and other applicable state or
local environmental laws and the regulations adopted under those acts.
(b) If any lender or governmental agency requires testing to
ascertain whether or not a release of hazardous substances has
occurred in or on the Leased Premises or the Project based on
probable cause that a release occurred and was caused by any
Tenant Party, then Tenant shall reimburse the reasonable costs of
the testing to Landlord on demand as additional Rent.
(c) Tenant shall execute affidavits, representations, and the like
from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of hazardous
substances in the Leased Premises and the Project.
(d) Tenant shall indemnify Landlord in the manner elsewhere provided
in this Lease from any release of hazardous substances in or on
the Leased Premises or the Project caused or permitted by any
Tenant Party.
(e) Landlord shall not cause or permit the escape, disposal or
release in the Leased Premises or the Project of any hazardous
substances in violation of law or bring any hazardous substances
into the Leased Premises or the Project in violation of laws.
(f) These covenants survive the expiration or earlier termination of
this Lease.
39. BUSINESS PURPOSE.
Tenant represents that this Lease is executed by Tenant, and all
obligations of Tenant arising out of this Lease are, primarily for business
or commercial purposes and not for personal, family, or household purposes.
40. SEVERABILITY.
Each of the terms of this Lease is, and must be construed to be, separate
and independent. If any of the terms of this Lease or its application to
any person or circumstances is to any extent invalid and unenforceable, the
remainder of this Lease, or the application of that term to persons or
circumstances other than those as to which it is invalid or unenforceable,
are not affected thereby.
41. NO MERGER.
The fact that the same person may acquire or hold, directly or indirectly,
this Lease or the leasehold estate hereby created or any interest in this
Lease or in the leasehold estate as well as the fee estate in the Leased
Premises or any interest in the fee estate does not cause a
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merger of this Lease or of the leasehold estate hereby created with the fee
estate in the Leased Premises.
42. FORCE MAJEURE.
When this Lease prescribes a period of time for action to be taken by
Landlord or Tenant, Landlord or Tenant is not liable or responsible for,
and there is excluded from the computation for the period of time, any
delays due to strikes, acts of God, shortages of labor or materials, war,
governmental laws, regulations, restrictions, or any other cause of any
kind that is beyond the control of Landlord or Tenant, provided that the
foregoing shall not apply to Tenant's obligation to pay amounts payable
under this Lease, which amounts shall be paid on the dates and within the
time periods provided in this Lease without extension or delay, except as
provided in Section 8(c).
43. BROKERAGE; MUTUAL INDEMNITIES.
(a) Tenant warrants that it has had no dealings with any broker or agent
in connection with the negotiation or execution of this Lease other
than Tenant's Broker and Landlord's Broker (collectively, BROKERS).
Tenant shall indemnify, defend, and hold Landlord harmless against all
costs, expenses, attorneys' fees, or other liability for commissions
or other compensation or charges claimed by any broker or agent other
than Brokers claiming by, through, or under Tenant with respect to
this Lease or any renewal or extension or with respect to any
expansion of the Leased Premises.
(b) Landlord warrants that it has had no dealings with any broker or agent
in connection with the negotiations or execution of this Lease other
than Brokers. Landlord shall indemnify, defend, and hold Tenant
harmless against all costs, expenses, attorneys' fees, or other
liability for commissions or other compensation or charges claimed by
any broker or agent, including Brokers, claiming by, through or under
Landlord with respect to this Lease or any renewal or extension or
with respect to any expansion of the Leased Premises.
(c) Any brokerage commissions payable to Brokers are payable by Landlord
pursuant to the terms of separate agreements between Landlord and
Brokers.
44. GENDER.
Words of any gender used in this Lease include any other gender and words
in the singular number include the plural, unless the context otherwise
requires.
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45. JOINT AND SEVERAL LIABILITY.
If there is more than one Tenant, the obligations imposed upon Tenant under
this Lease are joint and several. If Tenant is a general or limited
partnership, each general partner of Tenant is jointly and severally liable
for the obligations imposed upon Tenant under this Lease.
46. NO REPRESENTATIONS.
LANDLORD OR LANDLORD'S AGENTS MADE NO REPRESENTATIONS OR PROMISES WITH
RESPECT TO THE LEASED PREMISES OR THE PROJECT EXCEPT AS EXPRESSLY SET FORTH
IN THIS LEASE. NO RIGHTS, EASEMENTS, OR LICENSES ARE ACQUIRED BY TENANT BY
IMPLICATION OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH IN THIS LEASE.
47. ENTIRE AGREEMENT; AMENDMENTS.
This Lease is the entire agreement between the parties. All negotiations,
considerations, representations, and understandings between Landlord and
Tenant are incorporated in this Lease. No act or omission of any employee
or agent of Landlord or of Landlord's Broker may alter, change, or modify
any of the terms of this Lease. No amendment or modification of this Lease
is binding unless expressed in a written instrument executed by Landlord
and Tenant.
48. PARAGRAPH HEADINGS.
The paragraph headings in this Lease are for convenience only and in no way
enlarge or limit the scope or meaning of the paragraphs in this Lease.
49. BINDING EFFECT.
All terms of this Lease are binding upon the respective heirs, personal
representatives, successors, and, to the extent assignment is permitted,
assigns of Landlord and Tenant.
50. EXHIBITS.
The following exhibits are attached to and made a part of this Lease:
EXHIBIT A [Leased Premises],
EXHIBIT B [Land],
EXHIBIT C [Project Rules and Regulations],
EXHIBIT D [Contractor Insurance Requirements],
EXHIBIT E [Estoppel Certificate],
EXHIBIT F [Tenant Finish Construction,] and
EXHIBIT G [Janitorial Specifications]
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51. COUNTERPARTS.
This Lease may be executed in two or more counterparts, each of which is
deemed an original and all of which together constitute one and the same
instrument.
52. RENTAL TAX.
Tenant shall pay as additional Rent all licenses, charges, and other fees
of every kind and nature as and when they become due arising out of or in
connection with Tenant's use and occupancy of the Leased Premises and the
Project (including the parking garages), including but not limited to
license fees, business license taxes, and privilege, sales, excise, or
other taxes (other than income) imposed upon Rent or upon services provided
by Landlord or upon Landlord in an amount measured by Rent received by
Landlord.
53. PARKING.
(a) During the Lease Term, Landlord shall provide, twenty-seven (27)
unreserved parking spaces in the Off-Site Garage and four (4) spaces
in the On-Site Garage, which four (4) spaces shall, at Tenant's
option, be either reserved or unreserved spaces, and, subsequent to
availability, on a month-to-month basis, up to sixty (60) additional
unreserved spaces in the Off-Site Garage ("Temporary Spaces"),
specified by Landlord and issue to Tenant one parking access card for
each parking space. As rental for the parking spaces, Tenant shall pay
(i) $75.00 per month (plus any applicable sales tax) for the first
twenty-four (24) months of the Lease Term, $90.00 per month (plus any
applicable sales tax) for months twenty-five (25) through sixty (60)
of the Lease Term, and the parking charge (plus any applicable sales
tax) then imposed by Landlord thereafter for the unreserved parking
spaces in the Off-Site Garage, (ii) $125.00 per month (plus any
applicable sales tax) for the first twenty-four (24) months of the
Lease term, $135.00 per month (plus any applicable sales tax) for
months twenty-five (25) through sixty (60) of the Lease Term, and the
parking charge (plus any applicable sales tax) then imposed by
Landlord thereafter for the unreserved parking spaces in the On-Site
Garage, and (iii) $225.00 per month (plus any applicable sales tax)
for the first twenty-four (24) months of the Lease Term, $235.00 per
month (plus any applicable sales tax) for months twenty-five (25)
through sixty (60) of the Lease Term, and the parking charge (plus any
applicable sales tax) then imposed by Landlord thereafter for the
reserved parking spaces in the On-Site Garage. Prior to issuance of
the parking access cards, Tenant must deliver to Landlord a list of
the automobile license numbers of Tenant's employees who will be using
the cards, together with Landlord's then current per card deposit.
This deposit is forfeited to Landlord if any card is lost or damaged
or not returned to
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Landlord on request and a new deposit must be delivered to Landlord
before a replacement card is issued to Tenant.
(b) Except to the extent Tenant has exercised its option to lease reserved
parking spaces as provided in Subparagraph (a) above, Tenant is not
assigned designated parking spaces, but is permitted to use whatever
unreserved stalls are available, on a first-come, first-served basis
in areas of the parking garage designated from time to time by
Landlord. If for any reason Landlord fails or is unable to provide
parking spaces to Tenant or parking spaces in the parking garage are
not available for use by Tenant Parties, this failure or inability is
not a default by Landlord under this Lease; provided, however, that
Landlord shall not intentionally transfer the parking garages in a
manner designed to terminate Tenant's parking rights. If parking
spaces are not available to Tenant due to intentional acts of Landlord
for more than 10 consecutive days, Landlord shall use reasonable
efforts to make available to Tenant sufficient substitute unassigned
parking spaces (in the amount of those spaces not available to Tenant)
within a one-half (1/2) mile radius until such parking spaces are
again available to Tenant.
(c) All Tenant Parties must comply with all traffic, security, safety, and
other rules and regulations promulgated from time to time by the
operator of the garage.
(d) During any renewal or extension of the Lease Term or during any
holdover after the termination of this Lease, Landlord reserves the
right to charge Tenant the parking charge (plus any applicable sales
tax) then imposed by Landlord for parking at the Project.
(e) Upon thirty (30) days prior written notice, Landlord has the right to
terminate any of the Temporary Spaces at any time and from time to
time, including without limitation, at times necessary or required for
purposes of granting to new tenants of the Building rights to park in
the Off-Site Garage.
54. TENANT'S SERVICE PROVIDERS.
Tenant shall cause all moving companies and other entities providing
services to Tenant to deliver evidence satisfactory to Landlord that the
insurance specified in EXHIBIT D is in force prior to entering the Project.
55. SECURITY DISCLAIMER.
ANY SECURITY MEASURES PROVIDED BY LANDLORD MAY NOT BE TREATED BY TENANT AS
A GUARANTEE AGAINST CRIME. LANDLORD DOES NOT MAKE, AND TENANT WAIVES, ANY
GUARANTY OR WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO SECURITY AT THE
PROJECT OR IN THE BUILDING,
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OR THAT ANY SECURITY MEASURES WILL PREVENT OCCURRENCES OR CONSEQUENCES OF
CRIMINAL ACTIVITY. ANY MECHANICAL SECURITY DEVICES CAN BE RENDERED
INOPERATIVE AT ANY TIME. LANDLORD IS NOT RESPONSIBLE FOR A TEMPORARY
FAILURE OF SUCH DEVICES. IF SUCH DEVICES ARE IN NEED OF REPAIR, TENANT
WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO LANDLORD'S
REPAIR OF SUCH DEVICES. LANDLORD'S INSTALLATION OR USE OF ANY SECURITY
MEASURE DOES NOT CONSTITUTE A VOLUNTARY UNDERTAKING OR AGREEMENT BY
LANDLORD TO PROVIDE SECURITY TO ANY TENANT PARTY. LANDLORD MAY MODIFY,
REDUCE OR ELIMINATE THE USE OF ANY SECURITY MEASURE AT ANY TIME WITHOUT
NOTICE TO TENANT. NEITHER LANDLORD NOR ITS AGENTS, EMPLOYEES OR
REPRESENTATIVES ARE LIABLE IN ANY WAY FOR ANY DISRUPTION IN THE OPERATION
OR PERFORMANCE OF ANY SECURITY MEASURE. LANDLORD DOES NOT MAKE, AND TENANT
WAIVES, ANY GUARANTY OR WARRANTY THAT THE PRESENCE OF ANY SECURITY MEASURE
AT THE PROJECT OR IN THE BUILDING IN ANY WAY INCREASES THE PERSONAL
SECURITY OF ANY TENANT PARTY OR ITS PROPERTY. LANDLORD IS NOT LIABLE TO ANY
TENANT PARTY FOR ANY INJURY, DAMAGE OR LOSS WHATSOEVER WHICH IS CAUSED (A)
AS A RESULT OF ANY PROBLEM, DEFECT, MALFUNCTION OR THE FAILURE OF THE
PERFORMANCE OF ANY SECURITY MEASURE OR (B) BY ANY PERSON ENGAGING IN
CRIMINAL ACTIVITY.
56. INTENTIONALLY DELETED
57. RELOCATION OF THE LEASED PREMISES.
(a) At any time during the Lease Term or any renewal or extension thereof,
Landlord may relocate the Leased Premises within the Building by
giving Tenant at least 30 days' prior notice, subject to the
following:
(1) the premises being substituted for the Leased Premises (the
SUBSTITUTE SPACE) may not be lower in the Building than Floor 14,
must be in the same elevator bank as the Leased Premises, and
must contain approximately the same number of Rentable Square
Feet as the original Leased Premises; and
(2) Landlord shall reimburse Tenant for Tenant's actual out-of-pocket
expenses for moving Tenant's furniture, equipment, supplies,
telephones, and telephone equipment from the original Leased
Premises to the Substitute Space within 30 days after receipt of
a certified, itemized statement of those costs, together with
paid invoices therefor.
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(b) Tenant may, at its option, elect either to accept possession of the
Substitute Space in its "AS IS" condition on the effective date of the
relocation or to require Landlord to remodel the Substitute Space in
the same manner as the original Leased Premises were remodeled under
the terms of EXHIBIT F. Tenant may exercise this option by giving
notice to Landlord within 10 days after the date of the relocation
notice from Landlord. If Landlord does not receive notice of Tenant's
exercise of this option within the 10-day period, Tenant is deemed to
elect to require remodeling in accordance with EXHIBIT F.
(c) The Substitute Space is substituted for the original Leased Premises
and becomes the Leased Premises on the Relocation Effective Date
(defined below) on the same terms as under this Lease, except that if
the Substitute Space contains more Rentable Square Feet than the
original Leased Premises, the Minimum Rent, Tenant's Electricity
Percentage, and Tenant's Excess Operating Costs Percentage increase
proportionately; provided, the Minimum Rent increase is limited to a
maximum increase of 5% even if the Substitute Space is more than 5%
larger than the original Leased Premises.
(d) The RELOCATION EFFECTIVE DATE is:
(1) the date specified in Landlord's relocation notice (which date
may not be less than 90 days after the date, of the notice) if
Tenant elects to take the Substitute Space as-is; or
(2) the date, Landlord substantially completes the remodeling of the
Substitute Space, subject to the Tenant delay provisions of
EXHIBIT F, if Tenant exercises or is deemed to exercise its
option to cause Landlord to remodel the Substitute Space.
(e) Tenant shall move from the original Leased Premises into the
Substitute Space and surrender possession of the original Leased
Premises to Landlord no later than the Relocation Effective Date. If
Tenant continues to occupy the original Leased Premises after the
Relocation Effective Date, then, Tenant shall:
(1) pay Rent for both the original Leased Premises and the Substitute
Space until Tenant surrenders the original Leased Premises to
Landlord; and
(2) pay to Landlord on demand as additional Rent any damages that
Landlord incurs as a result of Tenant's failure to timely
surrender the original Leased Premises, including, but not
limited, to attorneys' fees and court costs incurred by Landlord
in enforcing Landlord's rights under this Paragraph, together
with interest at the Interest Rate from the date of demand until
repaid by Tenant.
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58. LIMITATION OF ACTIONS.
Any claim, demand, right, or defense of Tenant arising out of this Lease is
barred unless Tenant commences an action or asserts an affirmative defense
within 2 years after the date of the event giving rise to Tenant's claim,
demand, right, or defense. Tenant represents and warrants to Landlord that
Tenant has consulted with legal counsel regarding the effect of this
Paragraph.
59. EXECUTION AND APPROVAL OF LEASE.
Employees and agents of Landlord and of Landlord's Broker have no authority
to make or agree to make a lease or any other agreement or undertaking in
connection herewith. The submission of this Lease for examination and
negotiation is not an offer to lease, agreement to reserve, or option to
lease the Leased Premises. This Lease is effective and binding on Landlord
only upon the execution and delivery of this Lease by Landlord and Tenant.
If Landlord's first mortgagee requires any modifications of the terms of
this Lease as a condition to approving this Lease, other than a
modification of the Minimum Rent, Tenant shall execute and deliver any
required modifications within 10 days after receipt of Landlord's demand.
60. RIGHT OF FIRST NOTICE.
(a) If during the Lease Term space on floor 15 of the Building (the FIRST
NOTICE SPACE) is available for lease and Landlord receives an
expression of interest in the First Notice Space from a prospective
tenant, Landlord shall deliver a notice to Tenant offering to lease
the First Notice Space to Tenant. Landlord's notice must specify the
First Notice Rate (defined below). The term AVAILABLE FOR LEASE means
that the First Notice Space is not then subject to any existing rights
of third parties, including, without limitation, rights of first
notice, expansion rights, extension rights, options to lease, or other
rights.
(b) Tenant may elect to lease the First Notice Space by delivering a
notice (the RESPONSE NOTICE) to Landlord within 5 days after the date
of Landlord's notice specifying that Tenant elects either (1) to lease
all, but not less than all, of the applicable First Notice Space
offered or (2) to decline to lease the applicable First Notice Space
offered.
(c) If (1) Landlord does not receive the Response Notice within the 5-day
period or (2) in the Response Notice Tenant does not elect to lease
all of the applicable First Notice Space offered, Tenant is deemed to
waive its right to lease the First Notice Space and Tenant has no
further rights under this Paragraph, but Tenant shall have a
continuing right of first notice with respect to the First Notice
Space subsequently offered on terms materially different from those
contained in Landlord's notice or if
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Landlord does not enter into a binding commitment with the prospective
tenant within 120 days after delivery of Landlord's notice to Tenant.
(d) If Tenant timely delivers a Response Notice electing to lease all of
the applicable First Notice Space offered, Tenant's lease of the
applicable First Notice Space commences on the earlier of the date
that Tenant occupies such First Notice Space or the date 60 days after
Landlord's receipt of the Response Notice and is on the same terms as
this Lease except that the Rent and other applicable terms for the
First Notice Space adjust based on the First Notice Rate. Landlord
shall prepare and deliver to Tenant an amendment to the Lease adding
the First Notice Space to the Leased Premises upon the terms specified
in this Paragraph, Tenant shall execute, and deliver the amendment to
Landlord within 10 days after Tenant's receipt of the amendment, and
Landlord will deliver to Tenant a counterpart of the amendment
executed by Landlord.
(e) Landlord is not obligated to offer the First Notice Space to Tenant,
and Tenant may not exercise its option to lease the First Notice
Space, if at the time Landlord would otherwise be obligated to give
the Notice to Tenant, Tenant is in default under this Lease.
(f) The term FIRST NOTICE RATE means the Market Rate, as defined in
Paragraph 61, as determined by Landlord in its sole discretion,
provided the Rent components of the First Notice Rate will not be less
than the Rent then being paid under this Lease.
(g) Tenant may not assign this option to lease the First Notice Space to
any assignee of the Lease, nor may any sublessee or assignee exercise
this option.
61. OPTION TO EXTEND LEASE TERM.
(a) If Tenant is not in default under this Lease at the time of the
exercise of this option or at the commencement of the extended Lease
Term, Tenant may extend the initial Lease Term for 2 extension terms
of 5 years each commencing on the next day after the initial
Expiration Date as to the first renewal term and on the next day after
the expiration of the first renewal term as to the second renewal term
by giving Landlord an extension notice at least 12 months, but not
more than 15 months, prior to the (i) initial Expiration Date as to
the first renewal option, and (ii) the expiration of the first renewal
term as to the second renewal option. If Tenant timely gives a valid
extension notice, the Lease Term is extended for 5 years upon the same
terms as in the Lease, except that the Rent and other applicable terms
adjust based on the Market Rate (defined below) and Tenant has no
further option to extend the Lease Term after these option's are
exercised.
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(b) Within 30 days after Landlord receives Tenant's extension notice,
Landlord shall deliver a notice to Tenant specifying the Market Rate.
If Tenant does not approve Landlord's designation of Market Rate, then
Tenant, as its sole remedy, may revoke its exercise notice by
delivering a revocation notice to Landlord within 30 days after
Tenant's receipt of Landlord's notice specifying the Market Rate, but
otherwise Tenant may not revoke its extension notice. If Tenant gives
a revocation notice, the Lease Term ends on the initial Expiration
Date as to the first renewal option or the expiration of the first
renewal term as to the second renewal option and Tenant has no further
rights under this Paragraph.
(c) The term MARKET RATE means the Minimum Rent that Landlord quotes for
space similar to the Leased Premises for a 5-year term commencing on
the same date as the extension term, as determined by Landlord in its
sole discretion; provided, the Rent components of the Market Rate will
not be less than the Rent being paid under this Lease at the end of
the Lease Term.
(d) Tenant may not assign this extension option to any assignee of the
Lease, nor may any sublessee or assignee exercise this extension
option.
(e) If the Lease Term is extended under this Paragraph, Landlord shall
prepare, and Landlord and Tenant will execute and deliver an amendment
to the Lease extending the Lease Term within 30 days after Tenant's
election to renew the Lease Term.
This Lease is executed in multiple originals as of the date first above set
forth.
PAGE 48
<PAGE> 53
LANDLORD:
F/P/D Master Lease, Inc., a Texas
corporation
By: /s/ JOHN B. DETWILER
-------------------------------------
Name: John B. Detwiler
-----------------------------------
Title: Asst Vice President
----------------------------------
TENANT:
Service Asset Management Company
a North Carolina corporation
By: /s/ ROGER J. [ILLEGIBLE]
-------------------------------------
Name: Roger J. [ILLEGIBLE]
-----------------------------------
Title: President
----------------------------------
<PAGE> 54
EXHIBIT A
to Office Lease by and between
F/P/D Master Lease, Inc., as Landlord,
and
Service Asset Management Company, as Tenant
FLOOR PLAN OF THE LEASED PREMISES
A-l
<PAGE> 55
[FOURTEENTH FLOOR PLAN]
<PAGE> 56
[FIFTEENTH FLOOR PLAN]
<PAGE> 57
EXHIBIT B
to Office Lease by and between
F/P/D Master Lease, Inc., as Landlord
and
Service Asset Management Company, as Tenant
THE LAND
<PAGE> 58
PARCEL 1 (The Project Fee Tract)
Being all of that certain lot, tract or parcel of land, a part of which
being situated in the Live Oak Office Building Addition in the City of Dallas,
according to the Map thereof recorded in Volume 81122, Page 1117, of the Deed
Records of Dallas County, Texas, and in Lot 1, Block A/475 (Official City
Numbers) of the City of Dallas, and all of such land being situated in the J.
Grigsby Survey, Abstract No. 495, in the City of Dallas, Dallas County, Texas,
and being more particularly described as follows:
BEGINNING at a point for corner being the present intersection of the
Northerly right-of-way line of Elm Street (an 80-foot public right-of-way)
with the Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way);
THENCE South 14(degrees) 00' 00" East, a distance of 14.50 feet to a
point for corner;
THENCE South 76(degrees) 00' 00" West, a distance of 394.56 feet to a
point for corner, said point being in the Easterly right-of-way line of Ervay
Street (a 50-foot public right-of-way);
THENCE North 14(degrees) 00' 00" West, along the Easterly right-of-way
line of Ervay Street, a distance of 230.50 feet to a point for corner;
THENCE North 76(degrees) 00' 00" East, a distance of 394.56 feet to a
point for corner, said point being in the Westerly right-of-way line of North
St. Paul Street;
THENCE South 14(degrees) 00' 00" East, along the Westerly right-of-way
line of North St. Paul Street, a distance of 24.00 feet to a point for corner;
THENCE North 76(degrees) 00' 00" East, a distance of 6.85 feet to a
point for corner;
THENCE South 14(degrees) 00' 00" East, a distance of 192.00 feet to a
point for corner;
THENCE South 76(degrees) 00' 00" West, a distance of 6.85 feet to the
intersection of the Northerly right-of-way line of Elm Street with the Westerly
right-of-way line of North St. Paul Street, being the POINT OF BEGINNING, and
containing 92,261.38 square feet or 2.1180 acres of land.
6/23/95 Exhibit B - Page 1 of 43
<PAGE> 59
SAVE AND EXCEPT the following described Tracts A through G:
TRACT A (The Easterwood Leasehold Tract plus the Open Areas Tract, the Mezzanine
Tracts, and the Subway Tunnel Tract conveyed by Southern Methodist University)
Being all of that certain lot, tract, or parcel of land situated in the
Live Oak Office Building Addition in the City of Dallas, according to the Map
thereof recorded in Volume 81122, Page 1117, of the Deed Records of Dallas
County, Texas, and situated in the J. Grigsby Survey, Abstract No. 495, and
being part of Lot 1, Block A/475 (Official City Numbers) of the City of Dallas,
Dallas County, Texas, and being more particularly described as follows:
COMMENCING at a point being the present intersection of the Northerly
right-of-way line of Elm Street (an 80-foot public right-of-way) with the
Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way); thence South 76(degrees) 00' 00" West, along the Northerly
right-of-way line of Elm Street, a distance of 267.90 feet to the POINT OF
BEGINNING;
THENCE South 76(degrees) 00' 00" West, a distance of 50.00 feet along
the Northerly right-of-way line of Elm Street to a point for corner;
THENCE North 14(degrees) 00' 00" West, a distance of 47.53 feet to a
point for corner;
THENCE North 45(degrees) 33' 42" East, a distance of 57.99 feet to a
point for corner;
THENCE South 14(degrees) 00' 00" East, a distance of 76.91 feet to a
point in the Northerly right-of-way line of Elm Street, being the POINT OF
BEGINNING, and containing 3,110.90 square feet or 0.0714 acre of land.
TRACT B (The Open Areas Tract)
Being the surface estate only in and to the tract or parcel of land
more particularly described below, such "surface" being all portions of such
land above the depth which is the lesser of (a) four feet (4') below the actual
surface as it presently exists on the date hereof, or (b) the uppermost surfaces
of the underground improvements as constructed therein by First City Center
Associates, which surface estate was reserved by the City of Dallas in those
certain deeds to C F Pacific, Inc. recorded in Volume 81105, Page 2790; Volume
81105, Page 2809; and Volume 81105, Page 2799, of the Deed Records of Dallas
County, Texas, as such deeds, have been corrected by that certain Master
Corrective
Exhibit B - Page 2 of 43
<PAGE> 60
Deed from the City of Dallas to C F Pacific, Inc., dated June 1, 1984, and
recorded on June 14, 1984, in Volume 84118, Page 5300 of the Deed Records of
Dallas County, Texas, and as such surface estate was conveyed by First City
Center Associates to the City of Dallas by that certain Deed (the "FCCA Open
Areas Deed"), dated June 1, 1984, and recorded on June 14, 1984, in Volume
84118, Page 5325 of the Deed Records of Dallas County, Texas, subject, however,
to the easements in favor of 1700 Pacific Associates Limited Partnership, its
successors and assigns, as the assignee of First City Center Associates pursuant
to the Special Warranty Deed and Assignment of Ground Leases dated June 21, 1984
and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed Records of
Dallas County, Texas) granted and/or reserved in said deeds, as more
specifically described hereinafter as Parcel 9 (The Open Areas Easements Tract):
Being all of that certain lot, tract, or parcel of land, a part of
which being situated in the Live Oak Office Building Addition in the City of
Dallas, according to the Map thereof recorded in Volume 81122, Page 1117 of the
Deed Records of Dallas County, Texas, and in Lot 1, Block A/475 (Official City
Numbers) of the City of Dallas, Texas, and parts of which being situated in the
rights-of-way of Pacific Avenue and Elm Street adjacent to said Lot 1, Block
A/475, and all of such land being situated in the J. Grigsby Survey, Abstract
No. 495, of the City of Dallas, Dallas County, Texas, and being more
particularly described as follows:
BEGINNING at a point for corner being the present intersection of the
Northerly right-of-way line of Elm Street (an 80-foot public right-of-way) with
the Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way);
THENCE South 14(degrees) 00' 00" East, along the Westerly right-of-way
line of North St. Paul Street, a distance of 14.50 feet to a point for corner;
THENCE South 76(degrees) 00' 00" West, a distance of 394.56 feet to a
point for corner, said point being in the Easterly right-of-way line of Ervay
Street (a 50-foot public right-of-way);
THENCE North 14(degrees) 00' 00" West, along the Easterly right-of-way
line of Ervay Street, a distance of 230.50 feet to a point for corner;
THENCE North 76(degrees) 00' 00" East, a distance of 394.56 feet to a
point for corner, said point being in the Westerly right-of-way line of North
St. Paul Street;
Exhibit B - Page 3 of 43
<PAGE> 61
THENCE South 14(degrees) 00' 00" East, along the Westerly right-of-way
line of North St. Paul Street, a distance of 16.00 feet to a point for corner,
said point being the present intersection of the westerly right-of-way line of
North St. Paul Street with the Southerly right-of-way line of Pacific Avenue (an
80-foot public right-of-way);
THENCE South 76(degrees) 00' 00" West, along the Southerly right-of-way
line of Pacific Avenue, a distance of 17.10 feet to a point for corner;
THENCE South 45(degrees) 47' 33" West, a distance of 43.20 feet to a
point for corner;
THENCE North 44(degrees) 15' 22" West, a distance of 6.62 feet to a
point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 21.80 feet to a
point for corner;
THENCE North 44(degrees) 15' 22" West, a distance of 30.20 feet to a
point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 66.80 feet to a
point for corner;
THENCE North 44(degrees) 15' 22" West, a distance of 30.00 feet to a
point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 125.80 feet to a
point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 30.00 feet to a
point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 67.00 feet to a
point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 16.95 feet to a
point for corner, said point being in the Northerly boundary line of the
above-described Tract A - The Easterwood Leasehold Tract;
THENCE South 45(degrees) 33' 42" West, along the Northerly boundary
line of the above-described Tract A - The Easterwood Leasehold Tract, a distance
of 11.94 feet to a point for corner, said point being the Northwest corner of
the said Tract A - The Easterwood Leasehold Tract;
Exhibit B - Page 4 of 43
<PAGE> 62
THENCE South 14(degrees) 00' 00" East, along the Westerly boundary line
of the above-described Tract A - The Easterwood Leasehold Tract, a distance of
47.53 feet to a point for corner, said point being in the Northerly right-of-way
line of Elm Street;
THENCE North 76(degrees) 00' 00" East, along the Northerly right-of-way
line of Elm Street, a distance of 317.90 feet to the POINT OF BEGINNING, and
containing 39,913.49 square feet or 0.9163 acres of land.
TRACT C (The North St. Paul Street Sidewalk Tract)
Being the surface estate only in and to the tract or parcel of land
more particularly described below, such "surface" being all portions of such
land above the depth which is the lesser of (a) four feet (4') below the actual
surface as it presently exists, on the date hereof, or (b) the uppermost
surfaces of the underground improvements as constructed therein by First City
Center Associates, which surface estate was reserved by the City of Dallas in
that certain deed to C F Pacific, Inc., recorded in Volume 81105, Page 2799, of
the Deed Records of Dallas County, Texas, as such deed has been corrected by
that certain Master Corrective Deed from the City of Dallas to C F Pacific,
Inc., dated June 1, 1984, and recorded on June 14, 1984, in Volume 84118, Page
5300 of the Deed Records of Dallas County, Texas, and as such surface estate was
conveyed by First City Center Associates to the City of Dallas by that certain
Deed (the "FCCA Open Areas Deed"), dated June 1, 1984, and recorded on June 14,
1984, in Volume 84118, Page 5325 of the Deed Records of Dallas County, Texas,
subject, however, to the easements in favor of 1700 Pacific Associates Limited
Partnership, its successors and assigns, as the assignee of First City Center
Associates pursuant to the Special Warranty Deed and Assignment of Ground Leases
dated June 21, 1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the
Deed Records of Dallas County, Texas) granted and/or reserved in said deeds, as
more specifically described hereinafter as Parcel 9 (The Open Areas Easements
Tract):
Being all of that certain lot, tract, or parcel of land, being situated
in the J. Grigsby Survey, Abstract No. 495, Dallas County, Texas, and being a
part of North St. Paul Street (a 60-foot public right-of-way) adjacent to Lot 1,
Block A/475 (Official City Numbers) of the City of Dallas, Dallas County, Texas,
and being more particularly described as follows:
BEGINNING at a point for corner being the present intersection of the
Northerly right-of-way line of Elm Street (an 80-foot public right-of-way) with
the Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way);
Exhibit B - Page 5 of 43
<PAGE> 63
THENCE North 14(degrees) 00' 00" West, along the Westerly right-of-way
line of North St. Paul Street, a distance of 192.00 feet to a point for corner;
THENCE North 76(degrees) 00' 00" East, a distance of 6.85 feet to a
point for corner;
THENCE South 14(degrees) 00' 00" East, along a line which is 6.85 feet
perpendicularly distant Northeast from, and parallel to, the Westerly
right-of-way line of said North St. Paul Street, a distance of 192.00 feet to a
point for corner, said point being in the Northerly right-of-way line of Elm
Street;
THENCE South 76(degrees) 00' 00" West, along the Northerly right-of-way
line of Elm Street, a distance of 6.85 feet to the POINT OF BEGINNING, and
containing 1,315.2 square feet or 0.0302 acre of land.
TRACT D (The Mezzanine Tract - Concourse Level)
Being a subsurface estate only, bounded on the bottom at 443.0 feet
above mean sea level ("M.S.L.") and bounded at the top at 453.0 feet above
M.S.L., in and to the following described tract or parcel of land, but excluding
from such subsurface estate all existing structural columns, primary support
beams, foundations, bearing walls, and other structural improvements constructed
therein by First City Center Associates, and the land, areas, and spaces in
which such structural improvements are located, which subsurface estate was
granted from First City Center Associates to the City of Dallas by that certain
Deed (the "FCCA Mezzanine Deed"), dated June 1, 1984, recorded on June 14, 1984,
in Volume 84118, Page 5334 of the Deed Records of Dallas County, Texas, and is
subject to the restrictions upon the City of Dallas and the reservations,
easements, and interim rights in favor of 1700 Pacific Associates Limited
Partnership, its successors and assigns, as the assignee of First City Center
Associates pursuant to the Special Warranty Deed and Assignment of Ground Leases
dated June 21, 1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the
Deed Records of Dallas County, Texas) to use such subsurface estate, all as set
forth in said FCCA Mezzanine Deed, as more specifically described hereinafter as
Parcel 10 (The Mezzanine Easements Tract):
Being part of the Live Oak Office Building Addition, an addition to the
City of Dallas, Dallas County, Texas, as shown on the Map thereof recorded in
Volume 81122, Page 1117 of the Deed Records of Dallas County, Texas, and
situated in Lot 1, Block A/475 (Official City Numbers) of the City of Dallas,
Dallas County, Texas, and being more particularly described as follows:
Exhibit B - Page 6 of 43
<PAGE> 64
COMMENCING at a point being the present intersection of the Northerly
right-of-way line of Elm Street (an 80-foot public right-of-way) with the
Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way); thence South 76(degrees) 00' 00" West, along the Northerly
right-of-way line of said Elm Street, a distance of 276.23 feet to a point for
corner; and thence North 44(degrees) 15' 22" West, a distance of 62.09 feet to
the POINT OF BEGINNING;
THENCE North 44(degrees) 15' 22" West, a distance of 16.96 feet to a
point for corner;
THENCE North 45(degrees) 44' 38" East, a distance of 50.67 feet to a
point for corner;
THENCE South 14(degrees) 00' 00" East, a distance of 19.48 feet to a
point for corner, said point being on the Northerly boundary line of the
above-described Tract A - The Easterwood Leasehold Tract;
THENCE South 45(degrees) 33' 42" West, along the Northerly boundary
line of the said Tract A - The Easterwood Leasehold Tract, a distance of 40.85
feet to the POINT OF BEGINNING, and containing 772.82 square feet or 0.0177 acre
of land.
TRACT E (The Mezzanine Tract - Garage Level 1)
Being a subsurface estate only, bounded on the bottom at 433.0 feet
above M.S.L. and bounded at the top at 443.0 feet above M.S.L., in and to
the following described tract or parcel of land, but excluding from such
subsurface estate all existing structural columns, primary support beams,
foundations, bearing walls, and other structural improvements constructed
therein by First City Center Associates, and the land, areas, and spaces in
which such structural improvements are located, which subsurface estate was
granted from First City Center Associates to the City of Dallas by that certain
deed (the "FCCA Mezzanine Deed"), dated June 1, 1984, and recorded on June 14,
1984, in Volume 84118, Page 5334 of the Deed Records of Dallas County, Texas,
and is subject to the restrictions upon the City of Dallas and the
reservations, easements, and interim rights in favor of 1700 Pacific Associates
Limited Partnership, its successors and assigns, as the assignee of First City
Center Associates pursuant to the Special Warranty Deed and Assignment of Ground
Leases dated June 21, 1984 and recorded June 21, 1984 in Volume 84124, Page 402
of the Deed Records of Dallas County, Texas) to use such subsurface estate, all
as set-forth in said FCCA Mezzanine Deed, as more specifically described
hereinafter as Parcel 10 (The Mezzanine Easements Tract):
Exhibit B - Page 7 of 43
<PAGE> 65
Being all of that certain tract or parcel of land, a part of which
being situated in the Live Oak Office Building Addition, an addition to the City
of Dallas, Dallas County, Texas, as shown on the Map thereof recorded in Volume
81122, Page 1117, of the Deed Records of Dallas County, Texas, and in Lot 1,
Block A/475 (Official City Numbers) of the City of Dallas, Dallas County, Texas,
and a part of which being situated in the subsurface of the right-of-way of Elm
Street adjacent to said Lot 1, Block A/475, and being more particularly
described as follows:
COMMENCING at a point being the present intersection of the Southerly
right-of-way line of Pacific Avenue (an 80-foot public right-of-way) with the
Easterly right-of-way line of Ervay Street (a 50-foot public right-of-way);
thence South 14(degrees) 00' 00" East, along the Easterly right-of-way line of
said Ervay Street, a distance of 107.97 feet to the POINT OF BEGINNING;
THENCE North 76(degrees) 00' 00" East, a distance of 16.00 feet to a
point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 68.00 feet to a
point for corner;
THENCE North 45(degrees) 44' 38" East, a distance of 25.00 feet to a
point for corner;
THENCE North 44(degrees) 15' 22" West, a distance of 16.00 feet to a
point for corner;
THENCE North 45(degrees) 44' 38" East, a distance of 39.00 feet to a
point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 16.89 feet to a
point for corner, said point being on the Northerly boundary line of the above
described Tract A - The Easterwood Leasehold Tract;
THENCE South 45(degrees) 33' 42 West, along the Northerly boundary line
of the said Tract A - The Easterwood Leasehold Tract, a distance of 34.03 feet
to a point for corner, said point being the Northwest corner of the said Tract A
- The Easterwood Leasehold Tract;
THENCE South 14(degrees) 00' 00" East, along the Westerly boundary line
of the said Tract A - The Easterwood Leasehold Tract, a distance of 21.99 feet
to a point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 68.89 feet to a
point for corner;
Exhibit B - Page 8 of 43
<PAGE> 66
THENCE North 14(degrees) 00' 00" West, a distance of 9.17 feet to a
point for corner;
THENCE South 76(degrees) 00' 00" West, a distance of 17.18 feet to a
point for corner, said point being in the Easterly right-of-way line of Ervay
Street;
THENCE North 14(degrees) 00' 00" West, along the Easterly right-of-way
line of Ervay Street, a distance of 92.00 feet to the POINT OF BEGINNING, and
containing 4,873.01 square feet or 0.1119 acre of land.
TRACT F - (The Mezzanine Tract - Garage Level 2)
Being a subsurface estate only, bounded on the bottom at a variable
elevation above M.S.L., ranging from 421.5 feet above M.S.L. to 425.0 feet above
M.S.L., which bottom boundary is (a) the uppermost boundary of the below
described Tract G - The Subway Tunnel Tract, with respect to all portions of
the below described Mezzanine Tract - Garage Level 2 which are directly above
the said Subway Tunnel Tract, and (b) 425.0 feet above M.S.L., with respect to
all other portions of the below-described Mezzanine Tract - Garage Level 2, and
bounded on the top at 433.0 feet above M.S.L., in and to the following described
tract or parcel of land, but excluding from such subsurface estate all existing
structural columns, primary support beams, foundations, bearing walls, and other
structural improvements constructed therein by First City Center Associates, and
the land, areas, and spaces in which such structural improvements are located,
which subsurface estate was granted from First City Center Associates to the
City of Dallas by that certain deed (the "FCCA Mezzanine Deed"), dated June 1,
1984, and recorded on June 14, 1984, in Volume 84118, Page 5334 of the Deed
Records of Dallas County, Texas, and is subject to the restrictions upon the
City of Dallas and the reservations, easements, and interim rights in favor of
1700 Pacific Associates Limited Partnership, its successors and assigns, as the
assignee of First City Center Associates pursuant to the Special Warranty Deed
and Assignment of Ground Leases dated June 21, 1984 and recorded June 21, 1984
in Volume 84124, Page 402 of the Deed Records of Dallas County, Texas) to use
such subsurface estate, all as set forth in said FCCA Mezzanine Deed, as more
specifically described hereinafter as Parcel 10 (the Mezzanine Easements Tract):
Being all of that certain tract or parcel of land, a part of which
being situated in the Live Oak Office Building Addition, an addition to the City
of Dallas, Dallas County, Texas, as shown on the Map thereof recorded in Volume
81122, Page 1117, of the Deed Records of Dallas County, Texas, and in Lot 1,
Block A/475 (Official City Numbers) of the City of Dallas, Dallas County,
Exhibit B - Page 9 of 43
<PAGE> 67
Texas, and a part of which being situated in the subsurface of the
right-of-way of Elm Street adjacent to said Lot 1, Block A/475, and being more
particularly described as follows:
COMMENCING at a point being the present intersection of the Southerly
right-of-way line of Pacific Avenue (an 80-foot public right-of-way) with the
Easterly right-of-way line of Ervay Street (a 50-foot public right-of-way);
thence South 14(degrees) 00' 00" East, along the Easterly right-of-way line of
said Ervay Street, a distance of 125.42 feet to the POINT OF BEGINNING;
THENCE North 45(degrees) 44' 38" East, a distance of 22.14 feet to a
point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 56.00 feet to a
point for corner;
THENCE North 45(degrees) 44' 38" East, a distance of 14.83 feet to a
point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 2.00 feet to a
point for corner;
THENCE North 45(degrees) 44' 38" East, a distance of 9.67 feet to a
point for corner;
THENCE North 44(degrees) 15' 22" West, a distance of 22.00 feet to a
point for corner;
THENCE North 45(degrees) 44' 38" East, a distance of 40.00 feet to a
point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 7.00 feet to a
point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 23.00 feet to a
point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 2.00 feet to a
point for corner;
THENCE North 45(degrees) 44' 38" East, a distance of 23.00 feet to a
point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 16.88 feet to a
point for corner, said point being on the Northerly boundary line of the above
described Tract A - The Easterwood Leasehold Tract;
Exhibit B - Page 10 of 43
<PAGE> 68
THENCE South 45(degrees) 33' 42" West, along the Northerly boundary
line of said Tract A - The Easterwood Leasehold Tract, a distance of 34.05 feet
to a point for corner, said point being the Northwest corner of the said Tract A
- The Easterwood Leasehold Tract;
THENCE South 14(degrees) 00' 00" East, along the Westerly boundary line
of the said Tract A - The Easterwood Leasehold Tract, a distance of 22.01 feet
to a point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 68.86 feet to a
point for corner;
THENCE North 14(degrees) 00' 00" West, a distance of 9.17 feet to a
point for corner;
THENCE South 76(degrees) 00' 00" West, a distance of 17.18 feet to a
point for corner, said point being in the Easterly right-of-way line of Ervay
Street;
THENCE North 14(degrees) 00' 00" West, along the Easterly right-of-way
line of Ervay Street, a distance of 74.58 feet to the POINT OF BEGINNING, and
containing 5,055.60 square feet or 0.1160 acre of land.
TRACT G (The Subway Tunnel Tract)
Being a subsurface estate only, bounded on the bottom at 397.0 feet
above M.S.L. and bounded at the top at a variable elevation above M.S.L.,
ranging from 416.5 feet above M.S.L. to 421.5 feet above M.S.L., which top
boundary is three feet (3') below the lowermost surface of those two certain
concrete structural slabs heretofore constructed above such subsurface estate by
First City Center Associates at approximately 425.0 and 420.0 feet above M.S.L.,
in and to the following described tract or parcel of land, but excluding from
such subsurface estate all existing footings, caissons, columns, structural
beams and other supports, structural slabs, and other improvements constructed
therein by First City Center Associates, and the land, areas, and spaces in
which such improvements are located, which subsurface estate as granted from
First City Center Associates to the City of Dallas by that certain deed (the
"FCCA Subway Tunnel Deed") dated June 1, 1984, and recorded on June 14, 1984, in
Volume 84118, Page 5344 of the Deed Records of Dallas County, Texas, and is
subject to the restrictions upon the City of Dallas and the reservations,
easements, and rights of access in favor of 1700 Pacific Associates Limited
Partnership, its successors and assigns, as the assignee of First City Center
Associates pursuant to the Special Warranty Deed and Assignment of Ground Leases
dated June 21, 1984 and recorded June 21, 1984 in Volume 84124,
Exhibit B - Page 11 of 43
<PAGE> 69
Page 402 of the Deed Records of Dallas County, Texas), all as set forth in said
FCCA Subway Tunnel Deed, as more specifically described hereinafter as Parcel 11
(the Subway Tunnel Easements Tract):
Being all of that certain lot, tract, or parcel of land, a part of
which being situated in the Live Oak Office Building Addition, an addition to
the City of Dallas, as shown on the Map thereof recorded in Volume 81122, Page
1117, of the Deed Records of Dallas County, Texas, and in Lot 1, Block A/475
(Official City Numbers) of the City of Dallas, Dallas County, Texas, and parts
of which being situated in the subsurface of the rights-of-way of Pacific
Avenue and Elm Street adjacent to said Lot 1, Block A/475, and being more
particularly described as follows:
COMMENCING at a point being the present intersection of the Southerly
right-of-way line of Pacific Avenue (an 80-foot public right-of-way) with the
Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way); thence South 76(degrees) 00' 00" West, along the Southerly
right-of-way line of Pacific Avenue, a distance of 31.45 feet to the POINT OF
BEGINNING;
THENCE South 45(degrees) 44' 42" West, a distance of 278.39 feet to a
point for corner, said point being in the Easterly boundary line of the
above-described Tract A - The Easterwood Leasehold Tract;
THENCE North 14(degrees) 00' 00" West, along the said Easterly boundary
line of the said Tract A - The Easterwood Leasehold Tract, a distance of 15.38
feet to a point for corner, said point being the Northeast corner of the said
Tract A - The Easterwood Leasehold Tract;
THENCE South 45(degrees) 33' 42" West, along the Northerly boundary
line of the said Tract A - The Easterwood Leasehold Tract, a distance of 57.99
feet to a point for corner, said point being the Northwest corner of the said
Tract A - The Easterwood Leasehold Tract;
THENCE South 14(degrees) 00' 00" East, along the Westerly boundary line
of the said Tract A - The Easterwood Leasehold Tract, a distance of 15.16 feet
to a point for corner;
THENCE South 45(degrees) 44' 42" West, a distance of 84.10 feet to a
point for corner, said point being in the Easterly right-of-way line of Ervay
Street (a 50-foot public right-of-way);
THENCE North 14(degrees) 00' 00" West, along the Easterly right-of-way
line of said Ervay Street, a distance of 69.50 feet to a point for corner;
Exhibit B - Page 12 of 43
<PAGE> 70
THENCE North 45(degrees) 44' 42" East, a distance of 314.26 feet to a
point for corner, said point being on a line which is 16.0 feet distant
Northwest of, and parallel with, the Southerly right-of-way line of Pacific
Avenue;
THENCE North 76(degrees) 00' 00" East, along a line which is 16.0 feet
distant Northwest of, and parallel with, the Southerly right-of-way line of
Pacific Avenue, a distance of 119.08 feet to a point for corner;
THENCE South 45(degrees) 44' 42" West, a distance of 31.76 feet to a
point on the Southerly right-of-way line of Pacific Avenue, being the POINT OF
BEGINNING, and containing 22,227.67 square feet or 0.5103 acres of land.
PARCEL 2 (The Easterwood Leasehold Tract)
All that certain leasehold estate (excepting the last day of the term
thereof unless so extended, in which event excepting only the last day of the
term as so extended) in and to the following described parcel of land, created
by that certain Ground Lease, dated as of May 1, 1980, between Eva Easterwood
(now deceased), Individually and as the Independent Executrix of the Estate of
W. E. Easterwood, and Southern Methodist University, as Lessor (the fee interest
of Eva Easterwood having been conveyed to Southern Methodist University by deed
dated May 30, 1984, and recorded in Volume 84118, Page 5311 of the Deed Records
of Dallas County, Texas), and Pacific Investments, Inc., a Texas corporation, as
Lessee, a memorandum of which is recorded in Volume 80117, Page 0197 of the Deed
Records of Dallas County, Texas, which Ground Lease has been assigned: (a) by
C F Pacific, Inc. (formerly known as Pacific Investments, Inc.), a Texas
corporation, to First City Center Associates, a Texas limited partnership, the
sole general partner of which is C F Pacific, Inc., by Assignment of Lease,
dated June 22, 1981, and recorded in Volume 81122, Page 3288, Deed Records of
Dallas County, Texas; (b) by First City Center Associates, a Texas limited
partnership, the sole general partner of which is C F Pacific, Inc., to First
City Bank of Dallas, a Texas state banking corporation, by that certain Special
Warranty Deed and Assignment of Ground Lease, dated July 1, 1982, recorded in
Volume 82131, Page 2782 of the Deed Records of Dallas County, Texas; (c) by
First City Bank of Dallas, a Texas state banking corporation, to First City
Center Associates, a Texas limited partnership, the sole general partner of
which is C F Pacific, Inc., by that certain Special Warranty Deed and Assignment
of Ground Lease, dated May 18, 1984, recorded in Volume 84106, Page 2947 of the
Deed Records of Dallas County, Texas; and (d) by First City Center Associates, a
Texas limited partnership, to 1700 Pacific Associates Limited Partnership, a
Connecticut limited partnership, by that Special Warranty Deed
Exhibit B - Page 13 of 43
<PAGE> 71
and Assignment of Ground Leases dated June 21, 1984 and recorded June 21, 1984
in Volume 84124, Page 402 of the Deed Records of Dallas County, Texas, and which
Ground Lease has been amended by that certain Agreement, dated March 5, 1981,
and further amended by that certain Second Amendment to Lease, dated September
21, 1983, which Second Amendment to Lease is recorded in Volume 84083, Page 3298
of the Deed Records of Dallas County, Texas, as ratified by Statement of Ground
Lessor dated September 28, 1994 from Southern Methodist University to Teachers
Insurance Annuity Association of America recorded in Volume 95120, Page 1, Deed
Records, Dallas County, Texas (the Ground Lease, as the same has been so
assigned and so amended, is herein collectively called the "Easterwood Ground
Lease"), together with all rights, titles, interests, options, and estates of
1700 Pacific Associates Limited Partnership in, to, and under such Easterwood
Ground Lease (the said Easterwood Ground Lease being for a term of fifty (50)
years commencing on May 1, 1980 and ending on April 30, 2030, with five (5)
options to renew and extend said term for additional terms of ten (10) years
each):
Being all of that certain lot, tract, or parcel of land situated in the
Live Oak Office Building Addition, an addition to the City of Dallas, according
to the Map thereof recorded in Volume 81122, Page 1117 of the Deed Records of
Dallas County, Texas, and situated in the J. Grigsby Survey, Abstract No. 495,
and in Lot 1, Block A/475 (Official City Numbers) of the City of Dallas, Dallas
County, Texas, and being more particularly described as follows:
COMMENCING at a point being the present intersection of the Northerly
right-of-way line of Elm Street (an 80-foot public right-of-way) with the
Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way); thence South 76(degrees) 00' 00" West, along the Northerly
right-of-way line of Elm Street, a distance of 267.90 feet to the POINT OF
BEGINNING;
THENCE South 76(degrees) 00' 00" West, along the Northerly right-of-way
line of Elm Street, a distance of 50.00 feet to a point for corner;
THENCE North 14(degrees) 00' 00" West, a distance of 47.53 feet to a
point for corner;
THENCE North 45(degrees) 33' 42" East, a distance of 57.99 feet to a
point for corner;
THENCE South 14(degrees) 00' 00" East, a distance of 76.91 feet to a
point on the Northerly right-of-way line of Elm Street, being the POINT OF
BEGINNING, and containing 3110.90 square feet or 0.0714 acre of land.
Exhibit B - Page 14 of 43
<PAGE> 72
SAVE AND EXCEPT the following described Tracts B-1, D-1, E-1, F-1, and G-l:
TRACT B-1 (The Easterwood Open Areas Tract)
Being the surface estate only in and to the tract or parcel of land
more particularly described below, such "surface" being all portions of such
land above the depth which is the lesser of (a) four feet (4') below the actual
surface as it presently exists on the date hereof, or (b) the uppermost surfaces
of the underground improvements as constructed therein by First City Center
Associates, which surface estate was granted by Southern Methodist University to
the City of Dallas by that certain Deed (the "Easterwood Open Areas Deed"),
dated May 30, 1984, and recorded on June 14, 1984, in Volume 84118, Page 5351 of
the Deed Records of Dallas County, Texas, and is subject to the reservations and
easements in favor of 1700 Pacific Associates Limited Partnership, its
successors and assigns as the assignee of First City Center Associates pursuant
to that Special Warranty Deed and Assignment of Ground Leases dated June 21,
1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed Records of
Dallas County, Texas, and any successor lessee under the Easterwood Ground
Lease, as set forth in such Easterwood Open Areas Deed, as more specifically
described hereinafter as Parcel 9 (The Open Areas Easements Tract):
Being all of that certain lot, tract, or parcel situated in the Live
Oak Office Building Addition, an addition to the City of Dallas, according to
the Map thereof recorded in Volume 81122, Page 1117 of the Deed Records of
Dallas County, Texas, and in Lot 1, Block A/475 (Official City Numbers) of the
City of Dallas, Dallas County, Texas, and being more particularly described as
follows:
COMMENCING at a point being the present intersection of the Northerly
right-of-way line of Elm Street (an 80-foot public right-of-way) with the
Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way); thence South 76(degrees) 00' 00" West, along the Northerly
right-of-way line of Elm Street, a distance of 317.90 feet to a point for
corner; and thence North 14(degrees) 00' 00" West, along the Westerly boundary
line of the above described Parcel 2 - The Easterwood Leasehold Tract, a
distance of 24.88 feet to the POINT OF BEGINNING;
THENCE North 14(degrees) 00' 00" West, continuing along the Westerly
boundary line of the said Parcel 2 - The Easterwood Leasehold Tract, a distance
of 22.65 feet to a point for corner, said point being the Northwest corner of
the said Parcel 2 - The Easterwood Leasehold Tract;
Exhibit B - Page 15 of 43
<PAGE> 73
THENCE North 45(degrees) 33' 42" East, along the Northerly boundary
line of the said parcel 2 - The Easterwood Leasehold Tract, a distance of 11.94
feet to a point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 19.62 feet to a
point for corner;
THENCE South 45(degrees) 47' 33" West, a distance of 23.46 feet to the
POINT OF BEGINNING, and containing 346.20 square feet of land.
TRACT D-l (The Mezzanine Tract - Concourse Level)
Being a subsurface estate only, bounded on the bottom at 443.0 feet
above M.S.L. and bounded at the top at 453.0 feet above M.S.L., in and to the
following described tract or parcel of land, but excluding from such subsurface
estate all existing structural columns, primary support beams, foundations,
bearing walls, and other structural improvements constructed therein by First
City Center Associates, and the land, areas, and spaces in which such structural
improvements are located, which subsurface estate was granted by Southern
Methodist University to the City of Dallas by that certain deed (the "Easterwood
Mezzanine Deed") dated May 30, 1984, and recorded on June 14, 1984, in Volume
84118, Page 5359 of the Deed Records of Dallas County, Texas, and is subject to
the restrictions upon the City of Dallas and the reservations, easements, and
interim rights in favor of 1700 Pacific Associates Limited Partnership, its
successors and assigns as the assignee of First City Center Associates pursuant
to that Special Warranty Deed and Assignment of Ground Leases dated June 21,
1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed Records of
Dallas County, Texas, and any successor lessee under the Easterwood Ground
Lease, to use such subsurface estate, all as set forth in said, Easterwood
Mezzanine Deed, as more specifically described hereinafter as Parcel 10 (The
Mezzanine Easements Tract):
Being part of the Live Oak Office Building Addition, an addition to the
City of Dallas, Dallas County, Texas, as shown on the Map thereof recorded in
Volume 81122, Page 1117, of the Deed Records of Dallas County, Texas, and
situated in Lot 1, Block A/475 (Official City Numbers) of the City of Dallas,
Dallas County, Texas, and being more particularly described as follows:
COMMENCING at a point being the present intersection of the Northerly
right-of-way line of Elm Street (an 80-foot public right-of-way) with the
Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way); thence South 76(degrees) 00' 00" West, along the Northerly
right-of-way line of said Elm Street, a distance of 276.23 feet to a point for
corner; and
Exhibit B - Page 16 of 43
<PAGE> 74
THENCE North 44(degrees) 15' 22" West, a distance of 47.05 feet to the
POINT OF BEGINNING;
THENCE North 44(degrees) 15' 22" West, a distance of 15.04 feet to a
point for corner, said point being on the Northerly boundary line of the
above-described Parcel 2 - The Easterwood Leasehold Tract;
THENCE North 45(degrees) 33' 42" East, along the Northerly boundary
line of said Parcel 2 - The Easterwood Leasehold Tract, a distance of 40.85 feet
to a point for corner;
THENCE South 14(degrees) 00' 00" East, a distance of 17.57 feet to a
point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 32.00 feet to the
POINT OF BEGINNING, and containing 549.84 square feet or 0.0127 acre of land.
TRACT E-l (The Mezzanine Tract - Garage Level 1)
Being a subsurface estate only, bounded on the bottom at 433.0 feet
above M.S.L. and bounded at the top at 443.0 feet above M.S.L., in and to the
following described tract or parcel of land, but excluding from such subsurface
estate all existing structural columns, primary support beams, foundations,
bearing walls, and other structural improvements constructed therein by First
City Center Associates, and the land, areas, and spaces in which such structural
improvements are located, which subsurface estate was granted by Southern
Methodist University to the City of Dallas by that certain deed (the "Easterwood
Mezzanine Deed" dated May 30, 1984, and recorded on June 14, 1984, in Volume
84118, Page 5359 of the Deed Records of Dallas County, Texas, and is subject to
the restrictions upon the City of Dallas and the reservations, easements, and
interim rights in favor of 1700 Pacific Associates Limited Partnership, its
successors and assigns as the assignee of First City Center Associates pursuant
to that Special Warranty Deed and Assignment of Ground Leases dated June 21,
1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed Records of
Dallas County, Texas, and any successor lessee under the Easterwood Ground
Lease, to use such subsurface estate, all as set forth in said Easterwood
Mezzanine Deed, as more specifically described hereinafter as Parcel 10 (The
Mezzanine Easements Tract):
Being part of the Live Oak Office Building Addition, an addition to the
City of Dallas, Dallas County, Texas, as shown on the Map thereof recorded in
Volume 81122, Page 1117, of the Deed Records of Dallas County, Texas, and
situated in Lot 1, Block A/475 (Official City Numbers) of the City of Dallas,
Dallas County, Texas, and being more particularly described as follows:
Exhibit B - Page 17 of 43
<PAGE> 75
COMMENCING at a point being the present intersection of the Northerly
right-of-way line of Elm Street (an 80-foot public right-of-way) with the
Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way); thence South 76(degrees) 00' 00" West, along the Northerly
right-of-way line of said Elm Street, a distance of 317.90 feet to a point for
corner; and thence North 14(degrees) 00' 00" West, along the Westerly boundary
line of the above described Parcel 2 - The Easterwood Leasehold Tract, a
distance of 25.54 feet to the POINT OF BEGINNING;
THENCE North 14(degrees) 00' 00" West, continuing along the Westerly
boundary line of the said Parcel 2 - The Easterwood Leasehold Tract, a distance
of 21.99 feet to a point for corner, said point being the Northwest corner of
the said Parcel 2 - The Easterwood Leasehold Tract;
THENCE North 45(degrees) 33' 42" East, along the Northerly boundary
line of the said Parcel 2 - The Easterwood Leasehold Tract, a distance of 34.03
feet to a point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 5.11 feet to a
point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 22.00 feet to a
point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 14.00 feet to a
point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 23.11 feet to the
POINT OF BEGINNING, and containing 445.48 square feet or 0.0102 acre of land.
TRACT F-l (The Mezzanine Tract - Garage Level 2)
Being a subsurface estate only, bounded on the bottom at a variable
elevation above M.S.L., ranging from 421.5 feet above M.S.L. to 425.0 feet above
M.S.L., which bottom boundary is: (a) the uppermost boundary of the below
described Tract G-l - The Subway Tunnel Tract, with respect to all portions of
the below described Tract F-l - The Mezzanine Tract - Garage Level 2 which are
directly above the said Tract G-l - The Subway Tunnel Tract, and (b) 425.0 feet
above M.S.L., with respect to all other portions of the said Tract F-l - The
Mezzanine Tract - Garage Level 2, and bounded at the top at 433.0 feet above
M.S.L., in and to the following described tract or parcel of land, but excluding
from such subsurface estate all existing structural columns, primary support
beams, foundations, bearing walls, and other structural improvements constructed
therein by First City Center Associates, and the land, areas, and spaces in
which such
Exhibit B - Page 18 of 43
<PAGE> 76
structural improvements are located, which subsurface estate was granted by
Southern Methodist University to the City of Dallas by that certain deed (the
"Easterwood Mezzanine Deed"), dated May 30, 1984, and recorded on June 14, 1984,
in Volume 84118, Page 5359 of the Deed Records of Dallas County, Texas, and is
subject to the restrictions upon the City of Dallas and the reservations,
easements, and interim rights in favor of 1700 Pacific Associates Limited
Partnership, its successors and assigns as the assignee of First City Center
Associates pursuant to that Special Warranty Deed and Assignment of Ground
Leases dated June 21, 1984 and recorded June 21, 1984 in Volume 84124, Page 402
of the Deed Records of Dallas County, Texas, and any successor lessee under the
Easterwood Ground Lease, to use such subsurface estate, all as set forth in said
Easterwood Mezzanine Deed, as more specifically described hereinafter as Parcel
10 (The Mezzanine Easements Tract):
Being part of the Live Oak Office Building Addition, an addition to the
City of Dallas, Dallas County, Texas, as shown on the Map thereof recorded in
Volume 81122, Page 1117, of the Deed Records of Dallas County, Texas, and
situated in Lot 1, Block A/475 (Official City Numbers) of the City of Dallas,
Dallas County, Texas, and being more particularly described as follows:
COMMENCING at a point being the present intersection of the Northerly
right-of-way line of Elm Street (an 80-foot public right-of-way) with the
Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way); thence South 76(degrees) 00' 00" West, along the Northerly
right-of-way line of said Elm Street, a distance of 317.90 feet to a point for
corner; and thence North 14(degrees) 00' 00" West, along the Westerly boundary
line of the above-described Parcel 2 - The Easterwood Leasehold Tract, a
distance of 25.52 feet to the POINT OF BEGINNING;
THENCE North 14(degrees) 00' 00" West, continuing along the Westerly
boundary line of the said Parcel 2 - The Easterwood Leasehold Tract, a distance
of 22.01 feet to a point for corner, said point being the Northwest corner of
the said Parcel 2 - The Easterwood Leasehold Tract;
THENCE North 45(degrees) 33' 42" East, along the Northerly boundary
line of the said Parcel 2 - The Easterwood Leasehold Tract, a distance of 34.05
feet to a point for corner;
THENCE South 44(degrees) 15' 22" East, a distance of 5.12 feet to a
point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 22.00 feet to a
point for corner;
Exhibit B - Page 19 of 43
<PAGE> 77
THENCE South 44(degrees) 15' 22" East, a distance of 14.00 feet to
point for corner;
THENCE South 45(degrees) 44' 38" West, a distance of 23.14 feet to the
POINT OF BEGINNING, and containing 446.50 square feet or 0.0103 acre of land.
TRACT G-l (The Subway Tunnel Tract)
Being a subsurface estate only, bounded on the bottom at 397.0 feet
above M.S.L. and bounded at the top at approximately 421.5 feet above M.S.L.,
which top boundary is three feet (3') below the lowermost surface of a certain
concrete structural slab heretofore constructed above such subsurface estate by
First City Center Associates at approximately 425.0 feet above M.S.L., in and to
the following described tract or parcel of land, but excluding from such
subsurface estate all existing footings, caissons, columns, structural beams and
other supports, structural slabs, and other improvements constructed therein by
First City Center Associates, and the land, areas, and spaces in which such
improvements are located, which subsurface estate was granted by Southern
Methodist University to the City of Dallas by that certain deed (the "Easterwood
Subway Tunnel Deed"), dated May 30, 1984, and recorded on June 14, 1984, in
Volume 84118, Page 5370 of the Deed Records of Dallas County, Texas, and is
subject to the restrictions upon the City of Dallas and the reservations,
easements, and rights of access in favor of 1700 Pacific Associates Limited
Partnership, its successors and assigns as the assignee of First City Center
Associates pursuant to that Special Warranty Deed and Assignment of Ground
Leases dated June 21, 1984 and recorded June 21, 1984 in Volume 84124, Page 402
of the Deed Records of Dallas County, Texas, and any successor lessee under the
Easterwood Ground Lease, all as set forth in said Easterwood Subway Tunnel Deed,
as more specifically described hereinafter as Parcel 11 (The Subway Tunnel
Easements Tract):
Being part of the Live Oak Office Building Addition, an addition to the
City of Dallas, Dallas County, Texas, as shown on the Map thereof recorded in
Volume 81122, Page 1117, of the Deed Records of Dallas County, Texas, and
situated in Lot 1, Block A/475 (Official City Numbers) of the City of Dallas,
Dallas County, Texas, and being more particularly described as follows:
COMMENCING at a point being the present intersection of the Northerly
right-of-way line of Elm Street (an 80-foot public right-of-way) with the
Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way); thence South 76(degrees) 00' 00" West, along the Northerly
right-of-way line of said Elm Street, a distance of 317.90 feet to a point for
corner; and
Exhibit B - Page 20 of 43
<PAGE> 78
thence North 14(degrees) 00' 00" West, along the Westerly boundary line of the
above-described Parcel 2 - The Easterwood Leasehold Tract, a distance of 30.57
feet to the POINT OF BEGINNING;
THENCE North 14(degrees) 00' 00" West, continuing along the Westerly
boundary line of the said Parcel 2 - The Easterwood Leasehold Tract, a distance
of 15.16 feet to a point for corner, said point being the Northwest corner of
the said Parcel 2 - The Easterwood Leasehold Tract;
THENCE North 45(degrees) 33' 42" East, along the Northerly boundary of
the said Parcel 2 - The Easterwood Leasehold Tract, a distance of 57.99 feet to
a point for corner, said point being the Northeast corner of the said Parcel 2 -
The Easterwood Leasehold Tract;
THENCE South 14(degrees) 00' 00" East, along the Easterly boundary line
of the said Parcel 2 - The Easterwood Leasehold Tract, a distance of 15.38 feet
to a point for corner;
THENCE South 45(degrees) 44' 42" West, a distance of 57.88 feet to the
POINT OF BEGINNING, and containing 763.38 square feet or 0.0175 acre of land.
PARCEL 3 (The Garage Fee Tract)
Being a part of City Block B/125 of the JAMES BENTLY SUBDIVISION, an
addition to the City of Dallas, Dallas County, Texas, as recorded in Volume AA,
Page 213, of the Deed Records of Dallas County, Texas, and a part of City Block
33/125 of the RAILROAD ADDITION, an addition to the City of Dallas, Dallas
County, Texas, as recorded in Volume 4, Page 350 of the Map Records of Dallas
County, Texas, and being more particularly described as follows:
BEGINNING at a cross for corner at the present intersection of the
Easterly right-of-way line of North Harwood Street (a 75.25-foot public
right-of-way) with the Southerly right-of-way line of Elm Street (an 80-foot
public right-of-way);
THENCE North 76(degrees) 00' 00" East, along the Southerly right-of-way
line of Elm Street, a distance of 235.00 feet to a nail for corner;
THENCE South 14(degrees) 00' 00" East, a distance of 200.15 feet to a
nail for corner in the Northerly right-of-way line of Main Street (a 79.50-foot
public right-of-way);
Exhibit B - Page 21 of 43
<PAGE> 79
THENCE South 76(degrees) 00' 00" West, along said Northerly
right-of-way line of Main Street, a distance of 235.00 feet to a cross for
corner in the Easterly right-of-way line of North Harwood Street;
THENCE North 14(degrees) 00' 00" West, along said Easterly right-of-way
line of North Harwood Street, a distance of 200.15 feet to the POINT OF
BEGINNING, and containing 47,035.25 square feet or 1.0798 acres of land;
SAVE AND EXCEPT THE FOLLOWING DESCRIBED PARCEL:
Being a part of City Block B/125 of the JAMES BENTLY SUBDIVISION, an
addition to the City of Dallas, Dallas County, Texas, as recorded in Volume AA
Page 213 of the Deed Records of Dallas County, Texas, and a part of Block 33/125
of the RAILROAD ADDITION, an addition to the City of Dallas, Dallas County,
Texas, as recorded in Volume 4, Page 350 of the Map Records of Dallas County,
Texas, and being more particularly described as follows:
BEGINNING at a point for corner in the Southerly right-of-way line of
Elm Street (an 80-foot public right-of-way); said point being North 76(degrees)
00' 00" East, a distance of 166.00 feet from the present intersection of the
Southerly right-of-way line of Elm Street with the Easterly right-of-way line of
North Harwood Street (a 75.25-foot public right-of-way); said point also being
North 76(degrees) 00' 00" East, a distance of 175.0 feet from the former
intersection of the Southerly right-of-way line of Elm Street with the former
Easterly right-of-way line of North Harwood Street, at such intersection existed
prior to the conveyance of a 9.00 foot strip of land to the City of Dallas for
the widening of North Harwood Street by deed recorded in Volume 82093, Page 2970
of the Deed Records of Dallas County, Texas;
THENCE South 14(degrees) 00' 00" East, a distance of 100.00 feet to a
point for corner;
THENCE North 76(degrees) 00' 00" East, a distance of 68.00 feet to a
point for corner;
THENCE North 14(degrees) 00' 00" West, a distance of 100.00 feet to a
point for corner, said point being in the Southerly right-of-way line of Elm
Street;
THENCE, South 76(degrees) 00' 00" West, along the Southerly
right-of-way line of Elm Street, a distance of 68.00 feet to the POINT OF
BEGINNING, and containing 6,800.00 square feet or 0.1561 acres of land, the said
Parcel 3 containing a net of 40,235.25 square feet, or 0.9237 acres of land.
Exhibit B - Page 22 of 43
<PAGE> 80
PARCEL 4 (The Fonberg Leasehold Tract).
All that certain leasehold estate (excepting the last day of the term
thereof unless so extended, in which event excepting only the last day of the
term as so extended) in and to the following described tract or parcel of land,
created by that certain Ground Lease, dated June 1, 1981, by and between Elaine
Schwartz Fonberg, et al, as Lessor, and Teerts Corporation, as Lessee, a
memorandum of which is recorded in Volume 81170, Page 4141 of the Deed Records
of Dallas County, Texas, as such Ground Lease has been assigned (i) by Teerts
Corporation to C F Pacific, Inc., by Assignment of Lease, dated March 29, 1982,
recorded in Volume 82066, Page 0977 of the Deed Records of Dallas County, Texas,
and assigned (ii) by C F Pacific, Inc., to First City Center Associates, a Texas
limited partnership, the sole general partner of which is C F Pacific, Inc., by
Assignment of Lease, dated March 29, 1982, recorded in Volume 82066, Page 0983
of the Deed Records of Dallas County, Texas; and further assigned by (iii) First
City Center Associates, a Texas limited partnership, to 1700 Pacific Associates
Limited Partnership, a Connecticut limited partnership, by that Special Warranty
Deed and Assignment of Ground Leases dated June 21, 1984 and recorded June 21,
1984 in Volume 84124, Page 402 of the Deed Records of Dallas County, Texas, and
as such Ground Lease has been amended by: (a) that certain Amendment to Ground
Lease, dated effective as of June 1, 1981; (b) that certain Second Amendment to
Ground Lease, dated May 17, 1982, a memorandum of which Second Amendment to
Ground Lease is recorded in Volume 82100, Page 2456 of the Deed Records of
Dallas County, Texas; (c) that certain Third Amendment to Lease, dated June 1,
1984, and recorded in Volume 84118, Page 5397 of the Deed Records of Dallas
County, Texas; and (d) that certain Fourth Amendment to Lease, dated June 1,
1984, and recorded in Volume 84118, Page 5418 of the Deed Records of Dallas
County, Texas, as ratified by Statement of Ground Lessor dated October 14, 1994
from the lessor to Teachers Insurance and Annuity Association of America
recorded in Volume 95120, Page 1, Deed Records, Dallas County, Texas (the said
Ground Lease, as the same has been so amended and so assigned, is herein called
the "Fonberg Ground Lease"), together with all rights, titles, interests,
options, and estates of 1700 Pacific Associates Limited Partnership in, to, and
under such Fonberg Ground Lease (the said Fonberg Ground Lease being for a term
of fifty (50) years commencing on June 1, 1981 and ending on May 31, 2031 with
such renewal and extension options as are set forth in said Fonberg Ground
Lease):
Being a part of City Block B/125 of the JAMES BENTLY SUBDIVISION, an
addition to the City of Dallas, Dallas County, Texas, as recorded in Volume AA,
Page 213 of the Deed Records of Dallas County, Texas, and a part of City Block
33/125 of the
Exhibit B - Page 23 of 43
<PAGE> 81
RAILROAD ADDITION, an addition to the City of Dallas, Dallas County, Texas, as
recorded in Volume 4, Page 350 of the Map Records of Dallas County, Texas, and
being more particularly described as follows:
BEGINNING at a point for corner in the Southerly right-of-way line of
Elm Street (an 80-foot public right-of-way); said point being North 76(degrees)
00' 00" East, a distance of 166.00 feet from the present intersection of the
Southerly right-of-way line of Elm Street with the Easterly right-of-way line of
North Harwood Street (a 75.25-foot public right-of-way), said point also being
North 76(degrees) 00' 00" East, a distance of 175.00 feet from the former
intersection of the Southerly right-of-way line of Elm Street with the former
Easterly right-of-way line of North Harwood Street, as such intersection existed
prior to the conveyance of a 9.00 foot strip of land to the City of Dallas for
the widening of North Harwood Street by deed recorded in Volume 82093, Page 2970
of the Deed Records of Dallas County, Texas;
THENCE South 14(degrees) 00' 00" East, a distance of 100.00 feet to a
point for Corner;
THENCE North 76(degrees) 00' 00" East, a distance of 68.00 feet to a
point for corner;
THENCE North 14(degrees) 00' 00" West, a distance of 100.00 feet to a
point for corner, said point being in the Southerly right-of-way line of Elm
Street;
THENCE South 76(degrees) 00' 00" West, along the Southerly right-of-way
line of Elm Street, a distance of 68.00 feet to the POINT OF BEGINNING, and
containing 6,800.00 square feet or 0.1561 acres of land.
PARCEL 5 (The Pedestrian Tunnel License Tract)
The license rights of 1700 Pacific Associates Limited Partnership, its
successors and assigns as the assignee of First City Center Associates pursuant
to that Special Warranty Deed and Assignment of Ground Leases dated June 21,
1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed Records of
Dallas County, Texas, in and to a License, granting the right to use, for the
purpose of constructing, maintaining, and using a pedestrian tunnel within
subsurface space beneath Pacific Avenue, in the tract or parcel of land more
particularly described below, in accordance with, and subject to, the terms,
conditions, and provisions of City of Dallas Ordinance No. 17663, as amended by
City of Dallas Ordinance No. 17698, recorded in Volume 84040, Page 3620 of the
Deed Records of Dallas County, Texas, together with Acceptance of Ordinance as
shown in Volume 84040, Page 3643
Exhibit B - Page 24 of 43
<PAGE> 82
of the Deed Records of Dallas County, Texas, as ratified by Estoppel Certificate
from the City of Dallas dated September 20, 1994, recorded in Volume 95120, Page
1, Deed Records, Dallas County, Texas, such subsurface space extending from a
minimum depth of 3 feet below the crown of Pacific Avenue to a maximum depth of
24 feet below the crown of Pacific Avenue, within that certain tract or parcel
of land situated in the City of Dallas, Dallas County, Texas, and being more
particularly described as follows:
REVISED FIELD NOTES FROM ORDINANCE NO. 17698:
ALL THAT certain lot, tract or parcel of land lying and being situated in the
City and County of Dallas, Texas, more particularly described as follows:
BEING a part of Pacific Avenue between Block A/475 and Block B/477, official
City Block numbers, and being an area to accommodate a pedestrian tunnel under
said street and being more particularly described as follows:
BEGINNING at a point on a line that is 16.0 feet perpendicularly distant
northwest of and parallel with the southeast line of Pacific Avenue, said point
being South 76(degrees) 00' West, a distance of 185.5 feet along said line from
the southwest line of St. Paul Street;
THENCE South 76(degrees) 00' West along said line that is 16.0 feet
perpendicularly distant northwest of and parallel with the southeast line of
Pacific Avenue, a distance of 26.4 feet to a point for corner;
THENCE North 14(degrees) 00' West, a distance of 12.5 feet to a point for
corner;
THENCE North 76(degrees) 00' East, a distance of 8.0 feet to a point for corner;
THENCE North 14(degrees) 00' West, a distance of 51.5 feet to a point for corner
in the northwest line of Pacific Avenue;
THENCE North 76(degrees) 00' East along said northwest line of Pacific Avenue, a
distance of 18.4 feet to a point for corner;
THENCE South 14(degrees) 00' East crossing Pacific Avenue, a distance of 64.0
feet to the place of beginning and containing approximately 1,277 square feet of
land.
Exhibit B - Page 25 of 43
<PAGE> 83
PARCEL 6 (The Pedestrian Tunnel Easement Tract)
The easement in favor of 1700 Pacific Associates Limited Partnership,
its successors and assigns as the assignee of First City Center Associates
pursuant to that Special Warranty Deed and Assignment of Ground Leases dated
June 21, 1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed
Records of Dallas County, Texas, in the following described parcel or tract of
land, created by that certain Pedestrian Tunnel Development Construction,
Maintenance, and Easements Agreement, dated June 17, 1983, by and between First
City Center Associates, a Texas limited partnership, and RepublicBank Dallas,
National Association, a national banking association, recorded in Volume 84055,
Page 4218 of the Deed Records of Dallas County, Texas, as ratified by Estoppel
Certificate from Roxford Capital Corporation, successor in interest to
RepublicBank Dallas, National Association, dated October 13, 1994, recorded in
Volume 95120, Page 1, Deed Records of Dallas County, Texas (the "Tunnel
Agreement"), which tract is more particularly described as follows:
Being all of that certain lot, tract, or parcel of land situated in the
J. Grigsby Survey, Abstract A-495, and being part of City Block B/477 (Official
City Numbers) of the City of Dallas, Dallas County, Texas, and lying beneath the
present surface of the earth between an elevation of three feet (3') below the
crown of Pacific Avenue and an elevation of twenty-four feet (24') below the
crown of Pacific Avenue, and being more particularly described as follows:
COMMENCING at a point being the present intersection of the Southerly
right-of-way line of Pacific Avenue (an 80-foot public right-of-way) and the
Westerly right-of-way line of North St. Paul Street (a 60-foot public
right-of-way); thence South 76(degrees) 00' 00" West, a distance of 185.50 feet
along the Southerly right-of-way line of Pacific Avenue to a point for corner;
and thence North 14(degrees) 00' 00" West, a distance of 80.00 feet, across
Pacific Avenue, to the POINT OF BEGINNING, said point being in the Northerly
right-of-way line of Pacific Avenue and also being the Northeast corner of the
above-described Parcel 5 - The Pedestrian Tunnel License Tract;
THENCE South 76(degrees) 00' 00" West, along the Northerly right-of-way
line of Pacific Avenue and also along the Northerly boundary line of the
above-described Parcel 5 - The Pedestrian Tunnel License Tract, a distance of
18.40 feet to a point for corner;
THENCE North 14(degrees) 00' 00" West, a distance of 21.21 feet to a
point for corner;
Exhibit B - Page 26 of 43
<PAGE> 84
THENCE North 76(degrees) 00' 00" East, a distance of 18.40 feet to a
point for corner;
THENCE South 14(degrees) 00' 00" East, a distance of 21.21 feet to a
point on the Northerly right-of-way line of Pacific Avenue, being the POINT OF
BEGINNING, and containing 390.26 square feet or .0090 acres of land.
PARCEL 7 (The Skybridge License Tract)
The license rights of 1700 Pacific Associates Limited Partnership, its
successors and assigns as the assignee of First City Center Associates pursuant
to that Special Warranty Deed and Assignment of Ground Leases dated June 21,
1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed Records of
Dallas County, Texas, in and to a License, granting the right to use, for the
purpose of constructing, maintaining, and using a pedestrian skybridge within
certain airspace above North St. Paul Street, a public street, in the tract or
parcel of land more particularly described below, in accordance with, and
subject to, the terms, conditions, and provisions of City of Dallas Ordinance
No. 17664, as amended by City of Dallas Ordinance No. 17699, recorded in Volume
84040, Page 3646, Deed Records of Dallas County, Texas, as amended by City of
Dallas Ordinance No. 18309, recorded in Volume 84141, Page 3307 of the Deed
Records of Dallas County, Texas, as ratified by Estoppel Certificate from the
City of Dallas dated September 20, 1994, recorded in Volume 95120, Page 1, Deed
Records of Dallas County, Texas, such airspace being between a minimum height of
20 feet above the crown of North St. Paul Street up to a maximum height of 37
feet above the crown of North St. Paul Street, such airspace being above that
certain tract or parcel of land situated in the City of Dallas, Dallas County,
Texas, and being more particularly described as follows:
REVISED FIELD NOTES FROM ORDINANCE NO. 18309:
BEING situated in the John Grigsby Survey, Abstract No. 495, Dallas
County, Texas, and being an area over North St. Paul Street between Block A/475
and Block 94, official City Numbers, and being more particularly described as
follows:
COMMENCING at the present intersection of the northeast line of North
St. Paul Street with the southeast line of Pacific Avenue; and thence South
14(degrees) 00' 00" East, along the northeast line of North St. Paul Street, a
distance of 122.50 feet to the POINT OF BEGINNING;
THENCE South 14(degrees) 00' 00" East, along said northeast line of
North St. Paul Street, a distance of 15.12 feet to a point for corner;
Exhibit B - Page 27 of 43
<PAGE> 85
THENCE South 68(degrees) 25' 30" West, across North St. Paul Street a
distance of 60.47 feet to the intersection of same with the southwest line of
North St. Paul Street;
THENCE North 14(degrees) 00' 00" West, along said southwest line of
North St. Paul Street a distance of 15.12 feet to a point for corner;
THENCE North 68(degrees) 25' 30" East, across North St. Paul Street a
distance of 60.47 feet to the POINT OF BEGINNING and containing approximately
907 square feet of land.
PARCEL 8 (The Skybridge Easement Tracts)
The easements in favor of 1700 Pacific Associates Limited Partnership,
its successors and assigns as the assignee of First City Center Associates
pursuant to that Special Warranty Deed and Assignment of Ground Leases dated
June 21, 1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed
Records of Dallas County, Texas, created by that certain Skybridge Development,
Construction, Maintenance, and Easements Agreement, dated August 12, 1983, by
and among First City Center Associates, a Texas limited partnership, Pacific
Place Partners, Ltd., a Texas limited partnership, and Pacific Avenue
Associates, a Texas limited partnership, recorded in Volume 83176, Page 2482 of
the Deed Records of Dallas County, Texas, as assigned to 1700 Pacific Associates
Limited Partnership in that Pedestrian Walkway Development, Construction,
Maintenance, and Easements Agreement Assignment dated June, 1995 and recorded in
the Deed Records, Dallas County, Texas, and as amended by that Amendment to
Pedestrian Walkway Development, Construction, Maintenance, and Easements
Agreement dated June, 1995 and recorded or to be recorded in the Deed Records,
Dallas County, Texas, and as ratified by that Estoppel Certificate executed by
1700 Pacific Associates Limited Partnership dated June, 1995 and recorded or to
be recorded in the Deed Records, Dallas County, Texas, and as ratified by that
Certificate executed by Prentis/Copley Investment Group dated June, 1995 and
recorded or to be recorded in the Deed Records, Dallas County, Texas (the
"Skybridge Agreement"), in certain airspace above the following two (2) tracts
or parcels of land, described as Parcels 8A and 8B below:
Parcel 8A - The Pacific Avenue Associates Skybridge Tract
Being situated in City Block 94 (Official City Numbers) of the City of
Dallas, Dallas County, Texas, and being between elevation 475.00' above M.S.L.
and elevation 490.00' above M.S.L., and being more particularly described as
follows:
Exhibit B - Page 28 of 43
<PAGE> 86
BEGINNING at a point for corner in the Easterly right-of-way line of
North St. Paul Street, (a 60-foot public right-of-way) said point being North
14(degrees) 00' 00" West, a distance of 58.33 feet along the Easterly
right-of-way line of North St. Paul Street from the present intersection of the
Easterly right-of-way line of North St. Paul Street with the Northerly
right-of-way line of Elm Street (an 80-foot public right-of-way);
THENCE North 76(degrees) 00' 00" East, a distance of 110.47 feet to a
point for corner, said point being the Southwest corner of the below-described
Parcel 8B - The Pacific Place Partners Skybridge Tract;
THENCE North 14(degrees) 00' 00" West, along the Westerly boundary of
the below-described Parcel 8B - the Pacific Place Partners Skybridge Tract, a
distance of 19.68 feet to a point for corner;
THENCE South 76(degrees) 00' 00" West, a distance of 110.47 feet to a
point for corner, said point being in the Easterly right-of-way line of North
St. Paul Street;
THENCE South 14(degrees) 00' 00", East, along the Easterly right-of-way
line, of North St. Paul Street and, for part of its distance, along the Easterly
boundary line of the above-described Parcel 7 - The Skybridge License Tract, a
distance of 19.68 feet to the POINT OF BEGINNING, and containing 2174.05 square
feet.
Parcel 8B - The Pacific Place Partners Skybridge Tract
Being situated in City Block 94 (Official City Numbers) of the City of
Dallas, Dallas County, Texas, and being between elevation 475.00' above M.S.L.
and elevation 490.00' above M.S.L., and being more particularly described as
follows:
COMMENCING at the present intersection of the Northerly right-of-way
line of Elm Street (an 80-foot public right-of-way) with the Easterly
right-of-way line of North St. Paul Street (a 60-foot public right-of-way);
thence North 14(degrees) 00' 00" West, a distance of 58.33 feet along the
Easterly right-of-way line of North St. Paul Street to a point; and thence North
76(degrees) 00' 00" East, a distance of 110.47 feet to the POINT OF BEGINNING,
said POINT OF BEGINNING being the Southeast corner of the above-described Parcel
8A - The Pacific Avenue Associates Skybridge Tract;
THENCE North 14(degrees) 00' 00" West, along the Easterly boundary line
of the above-described Parcel 8A - The Pacific Avenue Associates Skybridge
Tract, a distance of 19.68 feet to a point for corner;
Exhibit B - Page 29 of 43
<PAGE> 87
THENCE North 76(degrees) 00' 00" East, a distance of 5.00 feet to a
point for corner;
THENCE South 14(degrees) 00' 00" East, a distance of 19.68 feet to a
point for corner;
THENCE South 76(degrees) 00' 00" West, a distance of 5.00 feet to the
POINT OF BEGINNING, and containing 98.4 square feet.
PARCEL 9 (The Open Areas Easements Tract)
The easements in favor of 1700 Pacific Associates Limited Partnership,
its successors and assigns as the assignee of First City Center Associates
pursuant to that Special Warranty Deed and Assignment of Ground Leases dated
June 21, 1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed
Records of Dallas County, Texas, to use the surface of the aforedescribed Tract
B (The Open Areas Tract), Tract C (The North St. Paul Street Sidewalk Tract),
and Tract B-l (The Easterwood Open Areas Tract) (collectively, the "Open Areas
Tracts") for pedestrian access to the building constructed by First City Center
Associates within the aforedescribed Parcels 1 and 2, and the rights to use,
maintain, replace, and restore those portions of any subsurface improvements
constructed by First City Center Associates which may penetrate to or through
the surface of the ground within the Open Areas Tracts, as granted to and/or
reserved by or for the benefit of First City Center Associates, its successors
and assigns (including 1700 Pacific Associates Limited Partnership), pursuant to
the terms of the aforedescribed FCCA Open Areas Deed (as defined in the
description of Tract B), the Easterwood Open Areas Deed (as defined in the
description of Tract B-l), that certain Master Corrective Deed from the City of
Dallas to C F Pacific, Inc. (as described in the description of Tract B), and
that certain Master Corrective Deed from C F Pacific, Inc. to First City Center
Associates recorded in Volume 84118, Page 5315, Deed Records of Dallas County,
Texas.
PARCEL 10 (The Mezzanine Easements Tract)
The easements in favor of 1700 Pacific Associates Limited Partnership,
its successors and assigns as the assignee of First City Center Associates
pursuant to that Special Warranty Deed and Assignment of Ground Leases dated
June 21, 1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed
Records of Dallas County, Texas, to use the aforedescribed Tracts D, D-l, E,
E-l, F, and F-l (collectively, the "Mezzanine Tracts") to: (a) have access
through said Mezzanine Tracts for the purpose of repairing, maintaining, and
replacing the structural improvements located therein, the ownership of which
had been reserved by First City Center Associates, and (b) to use the said
Mezzanine
Exhibit B - Page 30 of 43
<PAGE> 88
Tracts until such time as the City of Dallas requires said Mezzanine Tracts for
the construction of transit-related facilities therein, as such easements had
been reserved by or for the benefit of First City Center Associates, its
successors and assigns (including 1700 Pacific Associates Limited Partnership),
pursuant to the terms of the FCCA Mezzanine Deed (as defined in the descriptions
of Tracts D, E, and F) and the Easterwood Mezzanine Deed (as defined in the
descriptions of Tracts D-1, E-1 and F-1).
PARCEL 11 (The Subway Tunnel Easements Tract)
The easements in favor of 1700 Pacific Associates Limited Partnership,
its successors and assigns as the assignee of First City Center Associates
pursuant to that Special Warranty Deed and Assignment of Ground Leases dated
June 21, 1984 and recorded June 21, 1984 in Volume 84124, Page 402 of the Deed
Records of Dallas County, Texas, to use the aforedescribed Tracts G and G-l
(collectively, the "Subway Tunnel Tracts") to have access through said Subway
Tunnel Tracts for the purpose of repairing, maintaining, and replacing
structural improvements located therein, the ownership of which had been
reserved by First City Center Associates, its successors and assigns (including
1700 Pacific Associates Limited Partnership), as such easements have been
reserved by or for the benefit of First City Center Associates pursuant to the
terms of the FCCA Subway Tunnel Deed (as defined in the description of Tract G)
and the Easterwood Subway Tunnel Deed (as defined in the description of Tract
G-1).
PARCEL 12 (The Elm Street Garage Easement Tract)
Cross-access easement as created in that certain Operating Agreement
and Cross-Access Easement, dated 10/17/86, as evidenced by the Memorandum of
Operating Agreement and Cross-Access Easement, dated 9/30/88, recorded in Volume
88199, Page 4203, Deed Records of Dallas County, Texas; as amended by First
Amendment, dated 9/28/88, recorded in Volume 88199, Page 4228, Deed Records of
Dallas County, Texas; as assigned to 1700 Pacific Associates Limited Partnership
by Assignment Agreement RE Operating and Cross-Access Easement dated June, 1995
recorded or to be recorded in the Deed Records, Dallas County, Texas, as amended
by that Amendment to Operating and Cross-Access Easement dated June, 1995
recorded in the Deed Records, Dallas County, Texas, as subordinated by
Subordination to Operating Agreement and Cross-Access Easement dated March 7,
1995 recorded in Volume 95047, Page 4589, Deed Records, Dallas County, Texas,
said easement being over and across the following described tract of land, to
wit:
Exhibit B - Page 31 of 43
<PAGE> 89
BEING all of Tract "G" Addition in City Block 33/125, an Addition to
the City of Dallas, Texas according to the plat thereof recorded in Volume
86027, Page 3056, Dallas County, Texas, more particularly described by metes and
bounds as follows:
BEGINNING at an "X" cut in concrete at the northeast corner of said
Tract "G" Addition, at the intersection of the southerly R.O.W. line of Elm
Street (an 80.00 foot wide R.O.W.) and the westerly R.O.W. line of North Pearl
Street (an 80.00 foot wide R.O.W.);
THENCE South 14 degrees 00 minutes 00 seconds East, along said westerly
R.O.W. line, a distance of 200.00 feet to an "X" cut in concrete at the
intersection of said westerly R.O.W. line with the northerly R.O.W. line of Main
Street (a 79.50 foot wide R.O.W.) for the southeast corner of said Tract "G"
Addition;
THENCE South 76 degrees 00 minutes 00 seconds West, along said
northerly R.O.W. line, a distance of 225.10 feet to an "X" cut in concrete for
the southwest corner of said Tract "G" Addition;
THENCE North 14 degrees 00 minutes 00 seconds West, departing from said
northerly R.O.W. line, a distance of 200.00 feet to an "X" cut in concrete on
the southerly R.O.W. line of Elm Street for the northwest corner of said Tract
"G" Addition;
THENCE North 76 degrees 00 minutes 00 seconds East, along said
southerly R.O.W. line, a distance of 225.10 feet to the POINT OF BEGINNING, and
containing 45,020.00 square feet or 1.0335 acres of land, more or less.
PARCEL 13 (The Elm Street Tunnel to 1717 Main Building Easement Tract)
Easement created by Pedestrian Tunnel Maintenance and Easements
Agreement dated September 30, 1988, by and between First City Center Associates
II, a Texas limited partnership, and Elm Block Development Limited Partnership,
a Texas limited partnership, recorded in Volume 88199, Page 4066, Deed Records,
Dallas County, Texas; as amended by First Amendment to Pedestrian Tunnel
Maintenance and Easements Agreement dated October 7, 1988, by and between First
City Center Associates II, a Texas limited partnership, and Elm Block
Development Limited Partnership, a Texas limited partnership, recorded in Volume
88199, Page 4240, Deed Records, Dallas County, Texas, as assigned to 1700
Pacific Associates Limited Partnership by that Assignment of Pedestrian Tunnel,
Maintenance and Easements Agreement dated June, 1995 recorded or to be recorded
in the Deed Records, Dallas County,
Exhibit B - Page 32 of 43
<PAGE> 90
Texas, and as ratified by that Mutual Estoppel Agreement dated June, 1995,
recorded or to be recorded in the Deed Records, Dallas County, Texas, over the
following described tract of land:
ALL THAT CERTAIN lot, tract or parcel of land lying and being situated
in the City and County of Dallas, Texas, and being more particularly
described as follows:
Being part of Elm Street as described by Smith, Murphy, and Martin's
Addition, an addition to the City of Dallas, Texas, according to the map or plat
thereof, recorded in Volume 143, Page 403, Deed Records, Dallas County, Texas
and being adjacent to Blocks 95 and 94, Official City Numbers, and being more
particularly described as follows:
COMMENCING at the intersection of the East line of Ervay Street (55
foot wide) with the South line of Elm Street (80 foot wide), said intersection
being the northwest corner of said Block 95;
THENCE NORTH 76 Degrees 00 Minutes 00 Seconds East along the South line
of Elm Street, a distance of 193.42 feet to the POINT OF BEGINNING of the herein
described tract;
THENCE NORTH 14 Degrees 00 Minutes 00 Seconds West a distance of 38.86
feet to a point for corner;
THENCE NORTH 43 Degrees 29 Minutes 27 Seconds West, a distance of 30.03
feet to a point for corner;
THENCE NORTH 14 Degrees 00 Minutes 00 Seconds West, a distance of 15.00
feet to a point for corner;
THENCE NORTH 76 Degrees 00 Minutes 00 Seconds East, a distance of 27.90
feet to a point for corner;
THENCE SOUTH 14 Degrees 00 Minutes 00 Seconds East, a distance of
15.00 feet to a point for corner;
THENCE SOUTH 43 Degrees 29 Minutes 27 Seconds East, a distance of 56.77
feet to a point for corner;
THENCE SOUTH 14 Degrees 00 Minutes 00 seconds East, a distance of 15.58
feet to a point for corner in said South line of Elm Street;
THENCE SOUTH 76 Degrees 00 Minutes 00 Seconds West along said South
line of Elm Street, a distance of 41.06 feet to the POINT OF BEGINNING and
containing 2,590 square feet or 0.059 acres of land, more or less.
Exhibit B - Page 33 of 43
<PAGE> 91
PARCEL 14 (The Elm Street Tunnel to 1717 Main Building License Tract)
License Estate created by City of Dallas Ordinance No. 19329 recorded
in Volume 87002, Page 6318 and in Volume 88189, Page 2683, Deed Records, Dallas
County, Texas, as assigned to 1700 Pacific Associates Limited Partnership by
that Assignment of Pedestrian Tunnel, Maintenance and Easements Agreement dated
June, 1995 recorded or to be recorded in the Deed Records, Dallas County, Texas,
as ratified by Estoppel Certificate from the City of Dallas dated September 20,
1994, recorded in Volume 95120, Page 1, Deed Records of Dallas County, Texas,
over the following described tract of land:
ALL THAT CERTAIN lot, tract or parcel of land lying and being situated
in the City and County of Dallas, Texas, and being more particularly described
as follows:
Being part of Elm Street as described by Smith, Murphy, and Martin's
Addition, an addition to the City of Dallas, Texas, according to the map or plat
thereof, recorded in Volume 143, Page 403, Deed Records, Dallas County, Texas
and being adjacent to Blocks 95 and 94, Official City Numbers, and being more
particularly described as follows:
COMMENCING at the intersection of the East line of Ervay Street (55
foot wide) with the South line of Elm Street (80 foot wide), said intersection
being the northwest corner of said Block 95;
THENCE NORTH 76 Degrees 00 Minutes 00 Seconds East along the South line
of Elm Street, a distance of 193.42 feet to the POINT OF BEGINNING of the herein
described tract;
THENCE NORTH 14 Degrees 00 Minutes 00 Seconds West a distance of 38.86
feet to a point for corner;
THENCE NORTH 43 Degrees 29 Minutes 27 Seconds West, a distance of 30.03
feet to a point for corner;
THENCE NORTH 14 Degrees 00 Minutes 00 Seconds West, a distance of 15.00
feet to a point for corner;
THENCE NORTH 76 Degrees 00 Minutes 00 Seconds East, a distance of 27.90
feet to a point for corner;
THENCE SOUTH 14 Degrees 00 Minutes 00 Seconds East, a distance of 15.00
feet to a point for corner;
Exhibit B - Page 34 of 43
<PAGE> 92
THENCE SOUTH 43 Degrees 29 Minutes 27 Seconds East, a distance of 56.77
feet to a point for corner;
THENCE SOUTH 14 Degrees 00 Minutes 00 Seconds East, a distance of 15.58
feet to a point for corner in said South line of Elm Street;
THENCE SOUTH 76 Degrees 00 Minutes 00 Seconds West along said South
line of Elm Street, a distance of 41.06 feet to the POINT OF BEGINNING and
containing 2,590 square feet or 0.059 acre of land, more or less.
PARCEL 15 (The Pacific Place Second Floor Pedestrian Walkway)
Nonexclusive Easement Estate created by that certain Pedestrian Walkway
Development, Construction, Maintenance, and Easements Agreement executed by and
between First City Center Associates II, a Texas limited partnership, The
Prentiss/Copley Investment Group, a Delaware general partnership, and Pacific
Place Partners, Ltd., a Texas limited partnership dated October 12, 1988, filed
December 31, 1991, recorded in Volume 91252, Page 3046, Deed Records, Dallas
County, Texas, as amended by First Amendment to Pedestrian Walkway Development,
Construction, Maintenance, and Easements Agreement recorded in Volume 91252,
Page 3037, Deed Records, Dallas County, Texas, as modified by Letter Agreement
recorded in Volume 91252, Page 5575, Deed Records, Dallas County, Texas, as
assigned to 1700 Pacific Associates Limited Partnership by Pedestrian Walkway
Development, Construction, Maintenance, and Easements Agreement Assignment dated
June, 1995 and recorded or to be recorded in the Deed Records, Dallas County,
Texas, as amended by Third Amendment to Pedestrian Walkway Development,
Construction, Maintenance, and Easements Agreement dated June, 1995 and recorded
or to be recorded in the Deed Records, Dallas County, Texas, as ratified by
various estoppel certificates executed by First City Center Associates II, 1910
PP Limited Partnership, Prentis/Copley Investment Group, and 1700 Pacific
Associates Limited Partnership and all dated June, 1995 and recorded or to be
recorded in the Deed Records, Dallas County, Texas, as also ratified by the
Certificate from The Prentis/Copley Investment Group dated June, 1995 and
recorded or to be recorded in the Deed Records, Dallas County, Texas, over the
following described tract of land:
BEING all of that certain lot, tract or parcel of land situated in the
J. Grigsby Survey, A-495, and in City Block 94, Official City Numbers of the
City of Dallas, Dallas County, Texas, and also being all of those same two
tracts of land described as Tract One and Tract Two in deed from Martin Hull
Sparks, et al, to B.R. McLendon recorded in Volume 69110, Page 0420 of the Deed
Records of Dallas County, Texas, and being more particularly described as
follows:
Exhibit B - Page 35 of 43
<PAGE> 93
BEGINNING at a 60p nail for corner in the North R.O.W. line of Elm
Street (an 80' R.O.W.); said point being South 76 degrees 00 minutes 00 seconds
West, 187.17 feet from the present intersection of the North line of Elm Street
with the West R.O.W. line of North Harwood Street (a 66.25' R.O.W.);
THENCE South 76 degrees 00 minutes 00 seconds West, 130.77 feet with
the North line of Elm Street to a 8p nail at Southeast corner of that same tract
of land described in deed to William D. Felder Jr., Trustee, recorded in Volume
70134, Page 0340 of the Deed Records of Dallas County, Texas;
THENCE North 14 degrees 00 minutes 00 seconds West, 200.00 feet with
the East line of the Felder tract to a point for corner in the South R.O.W. line
of Pacific Avenue (an 80' R.O.W.);
THENCE North 76 degrees 00 minutes 00 seconds East, 130.77 feet with
the South line of Pacific Avenue to the Northwest corner of that same tract of
land described in deed to the City of Dallas, recorded in Volume 76250, Page
0261 of the Deed Records of Dallas County, Texas;
THENCE South 14 degrees 00 minutes 00 seconds East, 200.00 feet with
the West line of the City of Dallas tract to the PLACE OF BEGINNING and
containing 26,154.00 square feet or 0.6004 acres of land, more or less.
PARCEL 16 (The Elm Street Skybridge Easement Tract)
Nonexclusive Easement Estate as created by Pedestrian Walkway,
Development, Construction, Maintenance, and Easements Agreement recorded in
Volume 91252, Page 3046, Deed Records, Dallas County, Texas, as amended by First
Amendment to Pedestrian Walkway, Development, Construction, Maintenance, and
Easements Agreement recorded in Volume 91252, Page 3037, Deed Records, Dallas
County, Texas, as modified by Letter Agreement recorded in Volume 91252, Page
5575, Deed Records, Dallas County, Texas, as assigned to 1700 Pacific Associates
Limited Partnership by Pedestrian Walkway Development, Construction,
Maintenance, and Easements Agreement Assignment dated June, 1995 and recorded or
to be recorded in the Deed Records, Dallas County, Texas, as amended by Third
Amendment to Pedestrian Walkway Development, Construction, Maintenance, and
Easements Agreement dated June, 1995 and recorded or to be recorded in the Deed
Records, Dallas County, Texas, as ratified by various estoppel certificates
executed by First City Center Associates II, 1910 PP Limited Partnership,
Prentis/Copley Investment Group, and 1700 Pacific Associates Limited Partnership
and all dated June, 1995 and
Exhibit B - Page 36 of 43
<PAGE> 94
recorded or to be recorded in the Deed Records, Dallas County, Texas, as also
ratified by the Certificate from The Prentis/Copley Investment Group dated June,
1995 and recorded or to be recorded in the Deed Records, Dallas County, Texas,
over the following described tract of land:
FIELD NOTES FOR GRANTING A PRIVATE LICENSE TO CADILLAC FAIRVIEW URBAN
DEVELOPMENT, INC., AND PACIFIC PLACE PARTNERS, LTD. FOR ELEVATED PEDESTRIANWAY
CROSSING ELM STREET ADJACENT TO BLOCKS 94 AND 107:
BEING situated in the John Grigsby Survey, Abstract No. 495, Dallas
County Texas, and being a part of Elm Street adjacent to Blocks 94 and 107,
Official City Numbers, and being more particularly described as follows:
BEGINNING at a point in the southerly line of Elm Street that is 239.26
feet westerly and along said southerly line from the intersection of same with
the westerly line of Harwood Street;
THENCE in a westerly direction along said southerly line, a distance of
15.67 feet to a point for corner;
THENCE angle right 90 degrees 00 minutes and in a northerly direction,
a distance of 80.0 feet to the intersection of same with the northerly line of
Elm Street;
THENCE angle right 90 degrees 00 minutes and in an easterly direction
along said northerly line, a distance of 15.67 feet to point for corner;
THENCE angle right 90 degrees 00 minutes and in a southerly direction,
a distance of 80.0 feet to the place of beginning and containing approximately
1253 square feet of land, more or less.
PARCEL 17 (The Pocket Park Walkway Tract)
Nonexclusive Easement Estate created by that certain Pedestrian Walkway
Development, Construction, Maintenance, and Easements Agreement executed by and
between First City Center Associates II, a Texas limited partnership, The
Prentiss/Copley Investment Group, a Delaware general partnership, and Pacific
Place Partners, Ltd., a Texas limited partnership dated October 12, 1988, filed
December 31, 1991, recorded in Volume 91252, Page 3046, Deed Records, Dallas
County, Texas, as amended by First Amendment to Pedestrian Walkway Development,
Construction, Maintenance, and Easements Agreement recorded in Volume 91252,
Page 3037, Deed Records, Dallas County, Texas, as modified by Letter Agreement
recorded in Volume 91252, Page 5575, Deed
Exhibit B - Page 37 of 43
<PAGE> 95
Records, Dallas County, Texas, as assigned to 1700 Pacific Associates Limited
Partnership by Pedestrian Walkway Development, Construction, Maintenance, and
Easements Agreement Assignment dated June, 1995 and recorded or to be recorded
in the Deed Records, Dallas County, Texas, as amended by Third Amendment to
Pedestrian Walkway Development, Construction, Maintenance, and Easements
Agreement dated June, 1995 and recorded or to be recorded in the Deed Records,
Dallas County, Texas, as ratified by various estoppel certificates executed by
First City Center Associates II, 1910 PP Limited Partnership, Prentis/Copley
Investment Group, and 1700 Pacific Associates Limited Partnership and all dated
June, 1995 and recorded or to be recorded in the Deed Records, Dallas County,
Texas, as also ratified by the Certificate from The Prentis/Copley Investment
Group dated June, 1995 and recorded or to be recorded in the Deed Records,
Dallas County, Texas, over the following described tract of land:
BEING all of that certain lot, tract or parcel of land situated in the
J. Grigsby Survey, A-495, and in City Block 107, Official Numbers of the City of
Dallas, Dallas County, Texas and being more particularly described as follows:
BEGINNING at a point for corner in the South R.O.W. line of Elm Street
(an 80' R.O.W.); said point being North 76 degrees 00 minutes 00 seconds East,
175.00 feet from the present intersection of the South line of Elm Street with
the East R.O.W. line of North St. Paul Street (a variable width R.O.W.);
THENCE North 76 degrees 00 minutes 00 seconds East, 92.50 feet with the
South line of Elm Street to the Northwest corner of the W.O. Bankston and Max
Williams 0.1146 acre tract of land;
THENCE South 14 degrees 00 minutes 00 seconds East, 100.00 feet with
the West line of Bankston & Williams tract to a point for corner in the North
line of Joske's property;
THENCE South 76 degrees 00 minutes 00 seconds West, 92.50 feet with the
Joske's property line to a point for corner;
THENCE North 14 degrees 00 minutes 00 seconds West, 100.00 feet with
the Joske's property line to the PLACE OF BEGINNING and containing 9,250.00
square feet or 0.2123 acres of land, more or less.
PARCEL 18 (The McCrory Walkway Tract)
Nonexclusive Easement Estate created by that certain Pedestrian Walkway
Development, Construction, Maintenance, and Easements Agreement executed by and
between First City Center Associates II, a Texas limited partnership, The
Prentiss/Copley
Exhibit B - Page 38 of 43
<PAGE> 96
Investment Group, a Delaware general partnership, and Pacific Place Partners,
Ltd., a Texas limited partnership dated October 12, 1988, filed December 31,
1991, recorded in Volume 91252, Page 3046, Deed Records, Dallas County, Texas,
as amended by First Amendment to Pedestrian Walkway Development, Construction,
Maintenance, and Easements Agreement recorded in Volume 91252, Page 3037, Deed
Records, Dallas County, Texas, as modified by Letter Agreement recorded in
Volume 91252, Page 5575, Deed Records, Dallas County, Texas, as assigned to 1700
Pacific Associates Limited Partnership by Pedestrian Walkway Development,
Construction, Maintenance, and Easements Agreement Assignment dated June, 1995
and recorded or to be recorded in the Deed Records, Dallas County, Texas, as
amended by Third Amendment to Pedestrian Walkway Development, Construction,
Maintenance, and Easements Agreement dated June, 1995 and recorded or to be
recorded in the Deed Records, Dallas County, Texas, as ratified by various
estoppel certificates executed by First City Center Associates II, 1910 PP
Limited Partnership, Prentis/Copley Investment Group, and 1700 Pacific
Associates Limited Partnership and all dated June, 1995 and recorded or to be
recorded in the Deed Records, Dallas County, Texas, as also ratified by the
Certificate from The Prentis/Copley Investment Group dated June, 1995 and
recorded or to be recorded in the Deed Records, Dallas County, Texas, over the
following described tract of land:
TRACT A:
BEING a part of Block 107, City of Dallas, Dallas County, Texas, and
being more particularly described as follows:
BEGINNING at a point in the Southerly line of Elm Street, a distance of
65.75 feet Westerly along the Southerly line of Elm Street from its intersection
with the Westerly line of Harwood Street as widened (a 66.25 foot street);
THENCE Westerly along the Southerly line of Elm Street, a distance of
50.00 feet to a point for corner;
THENCE 90 degrees 00 minutes to the left and parallel to the Westerly
line of Harwood Street, a distance of 100.00 feet, a point for corner;
THENCE 90 degrees 00 minutes to the left and parallel to the Southerly
line of Elm Street a distance of 50.00 feet, a point for corner;
THENCE 90 degrees 00 minutes to the left and parallel to the Westerly
line of Harwood Street, a distance of 100.00 feet to the PLACE OF BEGINNING and
containing 5,000 square feet, more or less.
Exhibit B - Page 39 of 43
<PAGE> 97
TRACT B:
BEING a 50 feet X 100 feet out of Block 107, Official City Numbers, in
the City of Dallas, Texas, and being more particularly described as follows:
BEGINNING at a point 165.75 feet South 76 degrees West from the present
Southwest corner of Elm and Harwood Streets (Harwood Street having been widened
as evidenced by widening proceeding of the City of Dallas) on the South side of
Elm Street, said beginning point being the original Northwest corner of a tract
of land described in a Deed of Trust from Mary D. Ewell to C.E. Wellesley,
Trustee, dated September 10, 1988, recorded in Volume 20, Page 23, Deed of Trust
Records of Dallas County, Texas;
THENCE North 76 degrees East with the South line of Elm Street, 50
feet to a stake in South line of Elm Street;
THENCE South 14 degrees East, parallel with Harwood Street, as widened,
100 feet to a stake;
THENCE South 76 degrees West, parallel with Elm Street, 50 feet to a
stake in the original West line of Mary D. Ewell tract;
THENCE North 14 degrees West with said line, parallel with Harwood
Street, 100 feet to the PLACE OF BEGINNING.
PARCEL 19 (The Park Walkway Tract)
Nonexclusive Easement Estate created by that certain Pedestrian Walkway
Development, Construction, Maintenance, and Easements Agreement executed by and
between First City Center Associates II, a Texas limited partnership, The
Prentiss/Copley Investment Group, a Delaware general partnership, and Pacific
Place Partners, Ltd., a Texas limited partnership dated October 12, 1988, filed
December 31, 1991, recorded in Volume 91252, Page 3046, Deed Records, Dallas
County, Texas, as amended by First Amendment to Pedestrian Walkway Development,
Construction, Maintenance, and Easements Agreement recorded in Volume 91252,
Page 3037, Deed Records, Dallas County, Texas, as modified by Letter Agreement
recorded in Volume 91252, Page 5575, Deed Records, Dallas County, Texas, as
assigned to 1700 Pacific Associates Limited Partnership by Pedestrian Walkway
Development, Construction, Maintenance, and Easements Agreement Assignment dated
June, 1995 and recorded or to be recorded in the Deed Records, Dallas County,
Texas, as amended by Third Amendment to Pedestrian Walkway Development,
Construction, Maintenance, and Easements Agreement dated June, 1995 and recorded
or to be recorded in the Deed Records, Dallas County, Texas, as ratified by
various estoppel certificates executed by First City Center
Exhibit B - Page 40 of 43
<PAGE> 98
Associates II, 1910 PP Limited Partnership, Prentis/Copley Investment Group, and
1700 Pacific Associates Limited Partnership and all dated June, 1995 and
recorded or to be recorded in the Deed Records, Dallas County, Texas, as also
ratified by the Certificate from The Prentis/Copley Investment Group dated June,
1995 and recorded or to be recorded in the Deed Records, Dallas County, Texas,
over the following described tract of land:
BEING all of that certain lot, tract or parcel of land situated in the
J. Grigsby Survey, A-495, and in City Block 107, Official City Numbers of the
City of Dallas, Dallas County, Texas, and being more particularly described as
follows:
BEGINNING at a nail for corner at the present intersection of the South
R.O.W. line of Elm Street (an 80' R.O.W.) with the West R.O.W. line of North
Harwood Street (a 66.25' R.O.W.);
THENCE South 14 degrees 00 minutes 00 seconds East, 100.00 feet with
the West line of North Harwood Street to a cross for corner at the Northeast
corner of the L. Ronald Milner 0.1917 acre tract;
THENCE South 76 degrees 00 minutes 00 seconds West, 65.75 feet with the
North line of the Milner tract to the Southeast corner of the W.O. Bankston and
Max Williams 5000 square foot tract;
THENCE North 14 degrees 00 minutes 00 seconds West, 100.00 feet with
the East line of the Bankston and Williams tract to a point for corner in the
South line of Elm Street;
THENCE North 76 degrees 00 minutes 00 seconds East, 65.75 feet with the
South line of Elm Street to the PLACE OF BEGINNING and containing 6,575.00
square feet or 0.1509 acres of land, more or less.
PARCEL 20 (The Harwood Skybridge Easement Tract)
Nonexclusive Easement Estate as created by Pedestrian Walkway,
Development, Construction, Maintenance, and Easements Agreement recorded in
Volume 91252, Page 3046, Deed Records, Dallas County, Texas, as amended by First
Amendment to Pedestrian Walkway, Development, Construction, Maintenance, and
Easements Agreement recorded in Volume 91252, Page 3037, Deed Records, Dallas
County, Texas, as modified by Letter Agreement recorded in Volume 91252, Page
5575, Deed Records, Dallas County, Texas, as assigned to 1700 Pacific Associates
Limited Partnership by Pedestrian Walkway Development, Construction,
Maintenance, and Easements Agreement Assignment dated June, 1995 and recorded or
to be recorded in the Deed Records, Dallas County, Texas, as
Exhibit B - Page 41 of 43
<PAGE> 99
amended by Third Amendment to Pedestrian Walkway Development, Construction,
Maintenance, and Easements Agreement dated June, 1995 and recorded or to be
recorded in the Deed Records, Dallas County, Texas, as ratified by various
estoppel certificates executed by First City Center Associates II, 1910 PP
Limited Partnership, Prentis/Copley Investment Group, and 1700 Pacific
Associates Limited Partnership and all dated June, 1995 and recorded or to be
recorded in the Deed Records, Dallas County, Texas, as also ratified by the
Certificate from The Prentis/Copley Investment Group dated June, 1995 and
recorded or to be recorded in the Deed Records, Dallas County, Texas, over the
following described tract of land:
BEING a tract of land situated in the John Grigsby Survey, Abstract No.
495, Dallas County, Texas and being a part of North Harwood Street adjacent to
Blocks 107 and 125, Official City Numbers, and being more particularly described
as follows:
BEGINNING at a point in the westerly line of North Harwood Street that
is South 14 degrees 00 minutes 00 seconds East, 84.33 feet along said Westerly
line from the intersection of same with the Southerly line of Elm Street;
THENCE South 14 degrees 00 minutes 00 seconds East along said Westerly
line, a distance of 15.67 feet to a point for corner;
THENCE North 76 degrees 00 minutes 00 seconds East crossing said North
Harwood Street, a distance of 75.25 feet to a point on the Easterly line of
Harwood Street;
THENCE North 14 degrees 00 minutes 00 seconds West along said Easterly
line, a distance of 15.67 feet to a point for corner;
THENCE South 76 degrees 00 minutes 00 seconds West crossing said North
Harwood Street, a distance of 75.25 feet to the POINT OF BEGINNING and embracing
1,179.17 Square Feet or 0.027 acres of land, more or less.
PARCEL 21 (The Harwood Skybridge License Tract)
License Estate as created by City of Dallas Ordinance No. 18664
recorded in Volume 85186, Page 2227, Deed Records, Dallas County, Texas, over
the following described tract of land:
BEING a tract of land situated in the John Grigsby Survey, Abstract No.
495, Dallas County, Texas and being a part of North Harwood Street adjacent to
Blocks 107 and 125, Official City Numbers, and being more particularly described
as follows:
Exhibit B - Page 42 of 43
<PAGE> 100
BEGINNING at a point in the westerly line of North Harwood Street that
is South 14 degrees 00 minutes 00 seconds East, 84.33 feet along said Westerly
line from the intersection of same with the Southerly line of Elm Street;
THENCE South 14 degrees 00 minutes 00 seconds East along said Westerly
line, a distance of 15.67 feet to a point for corner;
THENCE North 76 degrees 00 minutes 00 seconds East crossing said North
Harwood Street, a distance of 75.25 feet to a point on the Easterly line of
Harwood Street;
THENCE North 14 degrees 00 minutes 00 seconds West along said Easterly
line, a distance of 15.67 feet to a point for corner;
THENCE South 76 degrees 00 minutes 00 seconds West crossing said North
Harwood Street, a distance of 75.25 feet to the POINT OF BEGINNING and embracing
1,179.17 Square Feet or 0.027 acres of land, more or less.
Exhibit B - Page 43 of 43 June 23, 1995
<PAGE> 101
EXHIBIT C
to Office Lease by and between
F/P/D Master Lease, Inc., as Landlord,
and
Service Asset Management Company, as Tenant
PROJECT RULES AND REGULATIONS
1. No birds, animals, reptiles, or any other creatures may be brought into
or about the Project except to assist disabled persons.
2. Nothing may be swept or thrown into the corridors, halls, elevator
shafts, or stairways.
3. Tenant may not make or permit any improper noises in the Building,
create a nuisance, or do or permit anything which, in Landlord's sole
judgment, interferes in any way with other tenants or persons having
business with them.
4. No equipment of any kind may be operated on the Leased Premises that
could in any way annoy any other tenant in the Building,
5. Tenant shall cooperate with Building employees in keeping the Leased
Premises neat and clean.
6. Corridor doors, when not in use, must be kept closed.
7. No bicycles or similar vehicles are allowed in the Building.
8. Tenant shall refer all contractors, contractor's representatives, and
installation technicians rendering any service on or to the Leased
Premises for Tenant to Landlord for Landlord's approval and supervision
for performance of any contractual service. This provision applies to
all work performed in the Building, including installation of
telephones, telephone equipment, electrical devices, and attachments
and installations of any nature affecting floors, walls, woodwork,
trim, windows, ceiling, equipment, or any other physical portion of the
Building.
9. No nails, hooks, or screws may be driven into or inserted in any part
of the Building except by Building maintenance personnel.
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10. Sidewalks, doorways, vestibules, halls, stairways, and similar areas
may not be obstructed by any Tenant Party, or used for any purpose
other than ingress and egress to and from the Leased Premises, or for
going from one part of the Building to another part of the Building. No
furniture may be placed in front of the Building or in any lobby or
corridor without prior consent of Landlord.
11. Any Tenant Party who desires to enter the Building after Building
Standard Hours, is required to sign in upon entry and sign out upon
leaving, giving the location during their stay and their time of
arrival and departure.
12. All deliveries must be made via the service entrance and service
elevator during Building Standard Hours or at other times as Landlord
may determine. Prior approval must be obtained from the Landlord for
all deliveries that are received after Building Standard Hours.
13. Landlord or its agents or employees may enter the Leased Premises at
reasonable times and upon reasonable notice (except no notice shall be
required in the event of an emergency) to examine the same or to make
repairs, alterations, or additions as Landlord deems necessary for the
safety, preservation, or improvement of the Building.
14. Landlord may require all Tenant Parties to evacuate the Building in the
event of an emergency or catastrophe.
15. Tenant may not do anything, or permit anything to be done, in or about
the Building, or bring or keep anything in the Building that in any way
increases the possibility of fire or other casualty, or do anything in
conflict with the valid laws, rules, or regulations of any governmental
authority.
16. Tenant shall notify the Building Manager when safes or other equipment
are to be taken into or out of the Building. Moving of those items must
be done under the supervision of the Building Manager, after receiving
approval from Landlord.
17. Landlord may prescribe the weight and position of safes and other heavy
equipment that may over stress any portion of the floor. All damage
done to the Building by the improper placing of heavy items that over
stress the floor will be repaired at the sole expense of the Tenant.
18. No food may be distributed from Tenant's office without the prior
approval of the Building Manager.
19. No additional locks may be placed on any doors without the prior
consent of Landlord. All necessary keys must be furnished by Landlord
and must be surrendered to Landlord upon termination of this Lease.
Tenant shall then give Landlord the combination for all locks on the
doors and vaults.
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<PAGE> 103
20. Tenant shall comply with parking rules and regulations as may be posted
and distributed from time to time.
21. Plumbing and appliances may be used only for the purposes for which
constructed. No sweeping, rubbish, rags, or other unsuitable material
may be thrown or placed therein. Any stoppage or damage resulting to
any fixtures or appliances from misuse by any Tenant Party is payable
by Tenant.
22. No signs, posters, advertisements, or notices may be painted or affixed
on any windows, doors, or other parts of the Building, except in
colors, sizes, and styles, and in places, approved in advance by
Landlord. Landlord has no obligation or duty to give this approval.
Building standard suite identification signs will be prepared by a sign
writer approved by Landlord. The cost of the Building standard signs is
payable by Tenant. Landlord may remove all unapproved signs without
notice to Tenant, at the expense of Tenant. Directories will be placed
by Landlord, at Landlord's expense, in conspicuous places in the
Building. No other directories are permitted.
23. No portion of the Building may be used as lodging rooms or for any
immoral or unlawful purposes.
24. Tenant may not operate, or allow the operation of any coin or token
operated vending machine or similar device for the sale of any goods,
wares, merchandise, food, beverages, or services, including but not
limited to pay lockers, pay toilets, scales, amusement devices and
machines for the sale of beverages, foods, candy, cigarettes or other
commodities, without the prior consent of Landlord.
25. Tenant must obtain Landlord's prior approval, which is at Landlord's
sole discretion, for installation of any solar screen material, window
shades, blinds, drapes, awnings, window ventilators, or other similar
equipment and any window treatment of any kind whatsoever. Landlord may
control all internal lighting that is visible from the exterior of the
Building and may change any unapproved lighting without notice to
Tenant, at Tenant's expense.
26. Landlord may rescind any of these Rules and Regulations and make other
future Rules and Regulations as in the judgment of Landlord are from
time to time 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. Those rules, when made and notice thereof
given to a tenant, are binding upon the Tenant in the same manner as
the original rules.
27. Tenant shall not permit any Tenant Party to hold, carry, smoke, or
dispose of a lighted cigar, cigarette, pipe, or any other lighted
smoking equipment in any common area of the Buildings. The common areas
includes, but are not limited to, all rest rooms, common corridors,
stairwells, elevator lobbies, first floor lobbies, and other areas used
in common
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with other tenants and occupants of the Buildings. In addition, the
Building shall be a nonsmoking building, with no smoking in the Leased
Premises or in any other area of the Building, including the exterior
portions thereof, provided that Landlord may provide for a smoking
area, in which case Tenant shall ensure that its employees smoke only
in such smoking area.
28. No provision in the Lease or these Rules and Regulations should be
construed in any manner as permitting, consenting to or authorizing
Tenant to violate requirements under the Access Laws, and any provision
of the Lease or these Rules and Regulations which could be construed as
authorizing a violation of the Access Laws shall be interpreted in a
manner which permits compliance with the Access Laws and the Lease and
these Rules and Regulations are deemed to permit such compliance.
29. The carrying of firearms of any kind in any leased premises, the
building in which such premises are situated, any related garage, or
any related complex of buildings of which the foregoing are a part, or
any sidewalks, drives, or other common areas related to any of the
foregoing, is prohibited except in the case of unconcealed firearms
carried by licensed security personnel hired or contracted for by
tenants for security of their premises as permitted by such tenants'
leases or otherwise consented to by Landlord in writing.
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EXHIBIT D
to Office Lease by and between
F/P/D Master Lease, Inc., as Landlord,
and
Service Asset Management Company, as Tenant
CONTRACTOR INSURANCE REQUIREMENTS
All contractors, subcontractors, suppliers, service providers, moving companies,
and others performing work of any type for Tenant in the Project shall:
o carry the insurance listed below with companies acceptable to
Landlord; and
o furnish Certificates of Insurance to Landlord evidencing
required coverages at least 10 days prior to entry in the
Project and annually thereafter.
Certificates of Insurance must provide for 30 days' prior written notice of
cancellation, non-renewal or material reduction in coverage to Landlord, c/o
Faison-Stone, Inc. (Manager), 1700 Pacific Avenue, Suite 4500, Dallas, Texas
75201, Attention: Property Manager.
1. WORKERS COMPENSATION: Statutory coverage in compliance with Workers
Compensation Laws of the state in which the Project is located.
2. EMPLOYERS' LIABILITY: With the following minimum limits of liability:
$100,000 Each Accident
$500,000 Disease-Policy Limit
$100,000 Disease-Each Employee
3. COMMERCIAL GENERAL LIABILITY: (1986 ISO Form or its equivalent): This
Insurance must provide contractual liability and a general aggregate
limit on a per location or per project basis. The minimum limits must
be $2,000,000 general aggregate and $1,000,000 per occurrence.
4. AUTOMOBILE LIABILITY: Insurance for claims arising out of ownership,
maintenance, or use of owned, non-owned, and hired motor vehicles at,
upon, or away from the Project with the following minimum limits:
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<PAGE> 106
$1,000,000 Each Accident Single Limit Bodily Injury and
Property Damage combined
5. UMBRELLA: At least Following Form liability insurance, in excess of the
Commercial General Liability, Employers Liability, and Automobile
Insurance above, with the following minimum limits:
$3,000,000 Each Occurrence
$3,000,000 Aggregate - Where Applicable
6. GENERAL REQUIREMENTS: All policies must be:
o written on an occurrence basis and not on a claims-made basis;
o except for the workers compensation insurance, endorsed to name
as additional insureds Landlord, Landlord's property manager,
Landlord's mortgagees, any ground, primary, or master lessor,
and their respective officers, directors, employees, agents,
partners, and assigns; and
o endorsed to waive any rights of subrogation against Landlord,
Landlord's property manager, Landlord's mortgagees, any ground,
primary, or master lessor, and their respective officers,
directors, employees, agents, partners, and assigns.
D-2
<PAGE> 107
EXHIBIT E
to Office Lease by and between
F/P/D Master Lease, Inc., as Landlord,
and
Service Asset Management Company, as Tenant
ESTOPPEL CERTIFICATE
_________________, 19____
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
Re: Office Lease dated ____________199__, between F/P/D) Master Lease, Inc.
("Landlord"), a New York corporation, and
________________________________________ ("Tenant"), a
_____________________________ (as amended, the "Lease")
1700 Pacific Avenue, Dallas, Texas (the "Project")
Dear___________________:
Tenant understands that _______________ ("Purchaser") is purchasing the Project
from Landlord and Purchaser and Landlord are relying on this Estoppel
Certificate.
For $10 and other good and valuable consideration, the receipt and sufficiency
of which are acknowledged, Tenant ratifies the Lease and certifies to Purchaser
and Landlord that:
1. Tenant is occupying and conducting business in the Leased Premises.
2. The Minimum Rent under the Lease is $ _____________ per month payable
in advance on the first day of each calendar month. Minimum Rent is
paid through ____________ 1, 19
E-1
<PAGE> 108
3. The Lease is in full force and effect and Tenant has not assigned or
subleased its interest in the Lease except as specified on Schedule A
attached to this Estoppel Certificate.
4. A true and correct copy of the Lease and all amendments thereto is
attached as Schedule B to this Estoppel Certificate.
5. The Lease is the entire agreement between Landlord and Tenant
concerning the Leased Premises.
6. The Lease Term expires on _____________, 19__.
7. Landlord has satisfied all of its obligations regarding the
installation of leasehold improvements.
8. To the best knowledge of Tenant, after due inquiry, no Event of Default
by Tenant or default by Landlord has occurred under the Lease and is
continuing and no act or omission has occurred that with the giving of
notice or passage of time or both would constitute an Event of Default
by Tenant except as specified on Schedule A.
9. Tenant is not entitled to any abatements, setoffs, or deductions from
Rent under the Lease except as specified in Schedule A.
10. No Rent has been paid more than one month in advance.
11. The Security Deposit is $_________________
Defined terms in the Lease have the same meanings in this Estoppel Certificate.
a
---------------------------------------,
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-2
<PAGE> 109
SCHEDULE A
1. List any assignments or subleases or state NONE:
2. List any Events of Default by Tenant that have occurred and are
continuing or any acts or omissions that have occurred that with the
giving of notice or passage of time or both would constitute an Event
of Default by Tenant or state NONE:
3. List any Events of Default by Landlord that have occurred and are
continuing or any acts or omissions that have occurred that with the
giving of notice or passage of time or both would constitute an Event
of Default by Landlord or state NONE:
4. List any abatements, setoffs, or deductions from Rent to which Tenant
is entitled at this time or state NONE:
E-3
<PAGE> 110
SCHEDULE B
COVER PAGE FOR COPIES OF LEASE AND AMENDMENTS
E-4
<PAGE> 111
EXHIBIT F
to Office Lease by and between
F/P/D Master Lease, Inc., as Landlord,
and
Service Asset Management Company, as Tenant
TENANT FINISH CONSTRUCTION
1. PLANS AND SPECIFICATIONS: Tenant and Landlord have approved complete
plans and specifications (the CONSTRUCTION DOCUMENTS) for the
construction of the tenant finish in the Leased Premises. Tenant shall
pay the cost of the Construction Documents, provided that the Work
Allowance, defined below, may be applied to the cost of the
Construction Documents.
All work to be performed by Landlord pursuant to the Construction
Documents is referred to as the TENANT FINISH WORK. Landlord shall not
be deemed to represent and warrant that the Construction Documents
comply with Applicable Laws and Tenant, at its sole cost and expense,
is responsible for the Construction Documents and Tenant's business
operations at the Leased Premises complying with Access Laws.
2. TENANT FINISH WORK. Landlord shall construct or cause to be constructed
the Tenant Finish Work in substantial accordance with the Construction
Documents, subject to the Building Service Fee and Administrative Fee
specified below. Tenant shall pay the Actual Cost (defined below) of
all Tenant Finish Work in excess of $629,560 (the WORK ALLOWANCE). The
Work Allowance may be applied to the cost of preparing the Construction
Documents, relocation, installation of cabling, and space planning. The
contractor Landlord selects to perform the Tenant Finish Work shall be
selected by Landlord from at least three (3) qualified contractors who
bid for such Tenant Finish Work. If the Actual Cost exceeds the Work
Allowance, then Landlord agrees to pay up to $5.00 per rentable square
foot contained in the Leased Premises, which additional sums shall be
repaid by Tenant to Landlord by Minimum Rent being increased by an
amount sufficient to fully amortize and pay such additional allowance
together with interest at the rate of 10% per annum over the first 5
years of the Lease Term.
F-1
<PAGE> 112
The term ACTUAL COST means the cost of all labor and materials and all
hard and soft costs, together with the Building Service Fee of 2.5% of
all hard costs, incurred by Landlord in performing the Tenant Finish
Work or the Additional Work (defined below), as applicable.
If prior to commencement of the Tenant Finish Work Landlord
determines, based on construction bids received by Landlord, that the
Actual Cost of the Tenant Finish Work will exceed the Work Allowance,
Tenant shall pay the excess to Landlord. Landlord is not obligated to
commence the Tenant Finish Work until it receives the excess payment
from Tenant.
If during construction the Actual Cost of the Tenant Finish Work
exceeds the Work Allowance and all amounts previously paid by Tenant to
Landlord prior to the commencement of construction, Landlord shall
submit interim statements covering any excess costs incurred by
Landlord under this Paragraph and Tenant shall pay the amount of the
excess costs to Landlord.
If the Actual Cost of the Tenant Finish Work is less than the Work
Allowance (not increased by the $5.00 per rentable square foot
additional allowance discussed above), such excess, not to exceed $2.00
per rentable square foot, shall be credited against the first accruing
Minimum Rent hereunder.
3. ADDITIONAL WORK. If Landlord performs, at Tenant's request and upon
submission by Tenant and approval by Landlord of necessary plans and
specifications (as approved, the ADDITIONAL WORK PLANS), any work over
and above the Tenant Finish Work (ADDITIONAL WORK), including any
Additional Work approved by change order or work order, the Additional
Work is at Tenant's expense, to which of any remaining balance of the
Work Allowance may be applied. Landlord is not obligated to perform any
Additional Work until Tenant pays Landlord the Actual Cost of the
Additional Work, as estimated by Landlord. If the Actual Cost of the
Additional Work exceeds the estimated amount paid by Tenant, Tenant
shall pay the excess to Landlord.
The Additional Work is not part of the Tenant Finish Work. If Landlord
agrees to perform any Additional Work, Landlord shall request that its
contractor estimate the additional amount of time that will be added to
the completion of the Tenant Finish Work because of the Additional Work
(the ADDITIONAL WORK PERIOD). This estimate is conclusive and binding
on Landlord and Tenant for the purpose of establishing the Ready for
Occupancy Date.
4. DELAYS: If Landlord is delayed in substantially completing the Tenant
Finish Work or any Additional Work as a result of:
(a) Tenant's failure to promptly and timely furnish any
information required by Landlord;
F-2
<PAGE> 113
(b) Tenant's delay in approving the Construction Documents or in
submitting any Additional Work Plans or in modifying the
Additional Work Plans as required by Landlord;
(c) Tenant's request for materials, finishes, or installations
other than Landlord's Building standard items or for long lead
items;
(d) Tenant's changes in the Construction Documents or any
Additional Work Plans;
(e) interference with Landlord's work by any Tenant Party; or
(f) Tenant does not timely obtain the approval, if required, of
the Texas Department of Licensing and Regulation;
then the Ready for Occupancy Date is accelerated by the number of days
of Tenant delays.
5. EARLY ENTRY: Upon request by Tenant, Landlord shall permit Tenant and
its contractors to enter the Leased Premises prior to the Ready for
Occupancy Date, in order that Tenant may perform through its own
contractor(s) (who must be approved by Landlord) other work and
decorations Tenant wants in the Leased Premises while Landlord's
contractors are working. This license to enter prior to the Ready for
Occupancy Date is subject to the following conditions:
(a) Tenant's contractor(s) must work in harmony and not interfere
with Landlord's contractors and subcontractors; and
(b) Prior to commencement of the work by Tenant's contractor(s),
Tenant must deliver evidence to Landlord of compliance with
the requirements of Exhibit D.
Landlord may revoke this license upon 48 hours' notice to Tenant if the
entry causes disharmony or interference with the Tenant Finish Work or
any Additional Work.
Landlord Is not liable in any way for any injury, loss, or damage that
occurs to any of Tenant's decorations or installations made prior to
the Ready for Occupancy Date, the entry being solely at Tenant's risk.
Tenant shall indemnify, defend, and hold Landlord harmless from any
claims, demands, actions, losses, and damages arising from activities
of Tenant's contractors, workers, and mechanics.
6. PROJECT ENGINEER: Tenant must use the fire alarm, mechanical,
electrical, and plumbing engineer(s) of record for the Project in
connection with any Tenant Finish Work or Additional Work affecting the
Building's fire alarm, mechanical, electrical, or plumbing systems.
Landlord shall designate from time to time (i) the mechanical,
electrical and
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<PAGE> 114
plumbing engineer of record for the Project, and (ii) the fire alarm
contractor of record for the Project.
7. PAYMENTS BY TENANT: All amounts payable by Tenant under this Exhibit F
are payable to Landlord as additional Rent within 10 days after
Tenant's receipt of Landlord's demand.
8. STANDARD IMPROVEMENTS; TENANT IMPROVEMENTS: For purposes of allocating
repair and obligations, the Standard Improvements are those
improvements located in the Leased Premises as of the date of this
Lease (and all other improvements in and to the Leased Premises are
Tenant Improvements).
F-4
<PAGE> 115
EXHIBIT G
to Office Lease by and between
F/P/D Master Lease, Inc., as Landlord,
and
Service Asset Management Company, as Tenant
JANITORIAL SPECIFICATIONS
G-1
<PAGE> 116
DETAILED SPECIFICATIONS - NIGHTLY CLEANING
GENERAL OFFICE AREAS
1. Vacuum carpet areas that can be reasonably vacuumed including the moving of
light furniture and chairs to accomplish this task.
2. Detailed carpet spotting in areas as they appear.
3. Dust mop and spot clean spillage stains and marks nightly from hardwood
floor surfaces. Wet mop and spray buff to restore floor finish weekly.
4. Empty waste paper baskets, special canisters and/or receptacles into
collection units and disposed from the Project nightly. Wastebaskets and trash
containers will be wiped clean and washed as needed.
5. Thorough dusting of horizontal surfaces, with treated dust cloths. Areas to
be dusted nightly include but are not limited to: desks, chairs, tables,
cabinets, credenzas, shelves, low ledges, window sills, coat racks, picture
frames, signs, and wall panel sections.
6. Remove finger prints, marks and stains from doors and frames nightly
utilizing the specified materials and cloths. Wipe down, clean and polish
quarterly utilizing the specified materials and cloths.
7. Furniture cleaning utilizing the specified furniture polish and cleaning
products of all desks, credenzas, cabinets, tables and office furniture, as
required.
8. Dust and clean horizontal surfaces, utilizing the specified treated cloths
and materials. Remove spills, stains and rings.
9. Dust arms, backs and leg rungs of sofas and chairs, utilizing the specified
materials and cloths. Detail vacuum utilizing the specified back pack vacuum
cleaner with furniture attachments, as required.
10. Clean and dust vertical surfaces utilizing the specified treated cloths, as
required.
11. Spot clean finger prints, stains and surface dust from glass doors,
sidelights and partitions.
12. Spot clean marks, stains and fingerprints from vinyl wall surfaces,
utilizing the specified materials and cloths.
13. Spot clean marks and fingerprints, on light switches and cover plates.
14. Drinking fountains shall be cleaned, sanitized and polished utilizing the
specified cleaning materials and cloths on a nightly basis. Metal finishes will
be restored to a sparkling clean and sanitary condition.
RESTROOMS
1. Finger prints, marks and stains will be removed from doors and frames,
utilizing the specified materials and cloths.
2. Wipe down, clean and polish doors and frames, utilizing the specified
materials and cloths.
3. Sweep and wet mop nightly tile floor utilizing the specified cleaning
materials. Machine scrub monthly utilizing specified cleaning material.
4. Wipe down stains and finger prints from wall tile nightly utilizing the
specified materials and cloths. Completely wash and wipe down all tile wall
surfaces monthly utilizing the specified materials and cloths.
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<PAGE> 117
5. Wipe down stains and finger prints from vinyl wall surfaces nightly
utilizing the specified materials and cloths. Completely wash and wipe down all
vinyl wall surfaces monthly utilizing the specified materials and cloths.
6. Refill hand towel dispensers with specified paper products as needed and
completely wash and wipe down to a sanitary condition.
7. Refill toilet paper dispensers with specified paper products as needed.
8. Refill soap dispenser with specified product as needed.
9. Trash containers, special canisters and/or receptacles will be emptied
nightly with trash container liner changed nightly. Trash container will be
wiped clean and washed nightly.
10. Wash and wipe down sinks, countertops and faucets nightly to a sanitary
condition utilizing the specified materials and cloths.
11. Wash and wipe down toilets and urinals nightly utilizing the specified
equipment and materials.
12. Wash and wipe down flush valves and chrome piping nightly to a sanitary
condition, utilizing the specified materials and cloths. Restore chrome finishes
to a sparkling clean condition.
13. Remove spots, water marks and fingerprints nightly utilizing the specified
materials and cloths, as needed. Wash and wipe all mirror finishes weekly
utilizing the specified materials and cloths.
14. Remove spots, water marks, stains, dust on horizontal surfaces and finger
prints utilizing the specified materials and cloths, as needed. Completely wash
and wipe all partitions weekly surfaces utilizing the specified materials and
cloths. Restore surface to a sanitary and sparkling clean condition.
ELEVATORS - (PASSENGER, FREIGHT, AND GARAGE CARS)
1. Wipe down wood wall surfaces utilizing the specified materials and cloths.
2. Wipe down elevator doors and frames nightly with treated cloth as specified.
Remove finger prints, smudge marks, stains and grease.
3. Clean light lenses nightly utilizing the specified treated cloths.
4. Wash and wipe down mirror finishes nightly utilizing the specified materials
and cloths. Restore to a sparkling clean condition.
5. Clean and wipe down metal finishes nightly utilizing specified materials and
cloths to remove finger prints, smudge marks and grease.
6. Clean and wipe down metal flooring nightly. Detail clean utilizing specified
cleaning materials, products and equipment, as required.
7. Vacuum carpet utilizing the specified commercial upright vacuum cleaner.
8. Vacuum elevator door tracks removing all debris. Thoroughly polish metal
finish utilizing specified materials and cloths, as required.
FIRE STAIRWELLS (AS REQUIRED)
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<PAGE> 118
1. Completely wipe down handrails utilizing the specified materials and cloths.
2. Sweep and wet mop risers utilizing specified materials and equipment. All
floor surfaces shall be slip resistant at all times.
3. Sweep and wet mop landings utilizing specified materials and equipment. All
floor surfaces shall be slip resistant at all times. Completely strip existing
concrete floor finish and reseal utilizing the specified materials. All floor
surfaces shall be slip resistant at all times.
4. Wipe down sprinkler riser pipes utilizing the specified treated cloths, areas
that are below six feet in height. Contractor to use caution while cleaning any
related equipment valves and fire sprinkler system devices.
5. Clean light lenses utilizing the specified treated cloths.
BUILDING ENTRANCES
1. Spot clean from glass doors, sidelights, and partitions nightly finger
prints, stains and surface dust. Detail clean quarterly utilizing the specified
glass and window cleaning equipment and materials.
2. Remove finger prints, marks and stains from doors and frames nightly. Wipe
down, clean and polish quarterly.
3. Completely clean and wipe down metal finishes nightly utilizing specified
materials and cloths to remove finger prints, smudge marks and grease.
4. Vacuum carpet including areas that can be reasonably vacuumed including the
moving of light furniture and chairs to accomplish this task.
5. Detailed carpet spotting in areas as they appear.
MAIN LOBBIES
1. Vacuum carpet cleaning utilizing the specified commercial upright vacuum
cleaner. Includes all areas that can be reasonably vacuumed including the moving
of light furniture and chairs to accomplish this task.
2. Detail carpet spotting in areas as they appear.
3. Dust mop and then wet mop all hard floor surfaces utilizing specified
cleaning materials, products and equipment. Wet mop and then spray buff weekly
to restore floor finish utilizing specified cleaning materials, products and
equipment. Detail and thoroughly clean monthly utilizing specified cleaning
materials, products and equipment.
4. Empty waste paper baskets, special canisters and/or receptacles into
collection units and dispose from the Project nightly. Waste paper baskets and
containers will be wiped clean and washed nightly.
5. Dusting of horizontal surfaces nightly with treated dust cloths.
6. Remove finger prints, marks and stains from doors and frames nightly
utilizing the specified materials and cloths.
3
<PAGE> 119
FIRST AMENDMENT TO
OFFICE LEASE
THIS FIRST AMENDMENT TO OFFICE LEASE (this "Amendment") is made as of this 16th
day of July, 1998, ("Effective Date") by and between F/P/D MASTER LEASE, INC., a
Texas corporation ("Landlord"), and SERVICE ASSET MANAGEMENT COMPANY, INC., a
North Carolina corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Office Lease dated
April_____, 1998 (the "Lease"), with respect to the lease of approximately
31,478 Rentable Square Feet (as defined in the Lease) on the 14th and 15th
floors known as Suites 1400 and 1500 (the "Premises") of that certain office
building known as 1700 Pacific Avenue, and located at 1700 Pacific Avenue,
Dallas, Texas (the "Building");
WHEREAS, Landlord and Tenant now desire to amend the Lease to modify certain
provisions of the Lease as set forth herein but not otherwise.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Landlord and Tenant, intending to be and
being legally bound, do hereby agree as follows:
1. DEFINED TERMS
All capitalized terms used herein and not defined herein have the meanings set
forth in the Lease.
2. PARKING
Commencing on the Effective Date and continuing through and until the last day
of the Lease Term, as extended if applicable, (in addition to and not in lieu of
the Parking provided for in Section 53 of the Lease), Landlord shall provide two
(2) additional spaces in the On-Site Garage, which two (2) spaces shall be
unreserved spaces, (the "Additional Spaces") and issue to Tenant one parking
access card for each parking space. The Additional Spaces shall be added to and
become a part of the unreserved parking spaces in the On-site Garage to which
Tenant is entitled and shall be leased by Tenant on the same terms and
conditions, including parking charges, set forth in Section 53 of the Lease.
3. FULL FORCE AND EFFECT
In the event any of the terms of the Lease conflict with the terms of this
Amendment, the terms of this Amendment shall control. Except as amended hereby,
all terms and conditions of the Lease shall remain in full force and effect, and
Landlord and Tenant hereby ratify and confirm the Lease.
<PAGE> 120
SECOND AMENDMENT TO OFFICE LEASE
THIS SECOND AMENDMENT TO OFFICE LEASE (this "Amendment") is made and
entered into this 17th day of February, 1999 (the "Amendment Effective Date"),
by and between F/P/D MASTER LEASE, INC., a Texas corporation ("Landlord"), and
SERVICE ASSET MANAGEMENT COMPANY, a North Carolina corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated as of May 20th, 1998, as amended by the First Amendment to Office Lease,
dated as of July 16th, 1998 (the "Lease"), with respect to the lease of
approximately 31,478 Rentable Square Feet ("Leased Premises") in the building
commonly referred to as 1700 Pacific Avenue located in Dallas, Texas (the
"Building"); and
WHEREAS, Landlord and Tenant mutually desire to amend the Lease to
expand the Leased Premises and to modify certain other provisions of the Lease
as set forth herein but not otherwise.
NOW THEREFORE, for and in consideration of Ten Dollars and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, Landlord and Tenant, intending to be and being
legally bound, do hereby agree as follows:
1. Defined Terms.
(a) The "Expansion Date" shall be the earliest to occur of (i) March 1,
1999, (ii) the date Tenant occupies any part of the Expansion Space, or (iii)
the Expansion Space Ready for Occupancy Date (defined below).
(b) The "Expansion Space Ready for Occupancy Date" is the earlier to
occur of:
(1) the date that Landlord notifies Tenant that the City of Dallas
has approved the Expansion Space for occupancy; or
(2) the date the City of Dallas would have approved the Expansion
Space for occupancy but for delays caused by any Tenant Party;
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<PAGE> 121
provided, if landlord performs any Additional Work (defined in
Exhibit B), the Expansion Space Ready for Occupancy Date is
deemed accelerated by the number of days in the Additional
Work Period (defined in Exhibit B).
(c) All other capitalized terms utilized herein and not defined herein
shall have the meaning ascribed thereto in the Lease.
2. Expansion of Leased Premises.
Commencing on the Expansion Date, the Leased Premises shall be expanded
from the existing 31,478 Rentable Square Feet (the "Existing Space") to include
an additional 3,198 Rentable Square Feet on Floor 15 of the Building (the
Expansion Space") as shown on Exhibit A attached hereto and made a part hereof,
such that the total rentable square footage of the Leased Premises as of the
Expansion Date shall be 34,676 Rentable Square Feet. The Expansion Space shall
be added to and become part of the Leased Premises for all purposes of the Lease
and shall be subject to all of the provisions of the Lease as amended hereby,
applicable to the Leased Premises, including, without limitation, Tenant's
obligation to pay Rent.
3. Term of Expansion Space.
The term of the Expansion Space shall commence on the Expansion Date
and shall expire on the Expiration Date.
4. Parking.
Commencing on the Expansion Date, Landlord shall provide to Tenant,
and Tenant shall accept and lease for the remainder of the Lease Term, as it
may be extended, three (3) additional unreserved spaces in the Off-Site Garage
(for a total of thirty (30) unreserved spaces in the Off-Site Garage) on the
same terms and conditions as set forth in Section 53 of the Lease. Such
additional three (3) spaces shall not be considered Temporary Spaces.
5. Tenant Improvements.
(a) Landlord and Tenant each shall comply with the provisions of
Exhibit B attached hereto. Tenant agrees to cooperate with Landlord in
Landlord's construction of the Tenant Finish Work, and Tenant shall not take
any action which would impede or hinder Landlord's construction of the Tenant
Finish Work. Tenant hereby grants to Landlord access to the Existing Space
commencing on the date thereof, for the purpose of the construction of the
Tenant Finish Work and performing the obligations of Landlord set forth in
Exhibit B. Tenant acknowledges that (i) the construction of the Tenant Finish
Work may affect Tenant's business, (ii) Landlord shall not be responsible for
any effect such construction may have on Tenant's business, and (iii) any such
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disturbance or effect in (i) or (ii) shall not constitute a default by Landlord
under the Lease as amended hereby.
(b) THE EXPANSION SPACE SHALL BE FURNISHED TO TENANT AT THE EXPANSION DATE
IN AN AS-IS CONDITION AND LANDLORD SHALL NOT BE OBLIGATED TO MAKE ANY
IMPROVEMENTS THERETO EXCEPT AS MAY BE PROVIDED IN EXHIBIT B, NOR SHALL TENANT BE
ENTITLED TO ANY ALLOWANCE WITH RESPECT THERETO. ADDITIONALLY, LANDLORD MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASEHOLD IMPROVEMENTS IN
THE EXISTING SPACE OR THE EXPANSION SPACE. ALL IMPLIED WARRANTIES WITH RESPECT
THERETO, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, ARE EXPRESSLY NEGATED AND WAIVED.
6. Minimum Rent for Expansion Space
(a) Commencing on the Expansion Date and continuing through and until
the Expiration Date, Tenant's Minimum Rent for the Expansion Space shall be an
annual amount equal to the sum of the product of (x) the annual Minimum Rental
Rate identified below for the applicable period identified therein multiplied
by (y) the Rentable Square Feet of the Expansion Space.
<TABLE>
<CAPTION>
Period Minimum Rental Rate
------ -------------------
<S> <C>
Expansion Date through the expiration of the
thirtieth (30th) month of the Lease Term $ 16.00
The commencement of the thirty-first (31st)
month of the Lease Term through the
expiration of the fifty-fourth (54th) month of
the Lease Term $ 17.00
The commencement of the fifty-fifth (55th)
month of the Lease Term through the
expiration of the seventh-eight (78th) month
of the Lease Term $ 18.00
</TABLE>
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<PAGE> 123
The commencement of the seventy-ninth (79th) $19.00
month of the Lease Term through the expiration of the
one hundred second (102nd) month of the Lease Term
The commencement of the one hundred third (103rd) $21.00
month of the Lease Term through the expiration of the
one hundred twenty-sixth (126th) month of the Lease
Term
All such Minimum Rent shall be payable in accordance with the
provisions set forth in the Lease.
7. Tenant's Proportionate Share.
Effective as of the Effective Date, Tenant's Proportionate Share shall
be 2.587% (in lieu of the 2.348% share set forth in Section 1 of the Lease) and
determined by dividing the number of Rentable Square Feet of the Leased Premises
(as expanded) by the Total Building Area. Tenant's Proportionate Share as
recalculated shall be paid in accordance with the provisions set forth in the
Lease. The Base Year for the purpose of calculating the Operating Costs shall
remain the calendar 1998 and shall be applicable to both the Expansion Space and
the Existing Space.
8. Brokerage Commission.
Landlord and Tenant hereby represent and warrant to each other that no
commission is due and payable to any broker or other leasing agent in connection
with this Amendment as a result of its own dealings with any such broker or
leasing agent except Trinity Advisory Group, Inc. ("Broker"), and Landlord and
Tenant hereby agree to indemnify and hold each other harmless from and against
all loss, damage, cost and expense (including reasonable attorneys' fees)
suffered by the other party as a result of a breach of the foregoing
representation and warranty.
Landlord has agreed to pay Broker a commission pursuant to a separate
agreement between Broker and Landlord.
9. Acceptance of Leased Premises.
Tenant's occupancy of the Expansion Space is conclusive evidence that
Tenant: (A) accepts the Expansion Space as suitable for the purposes for which
they are leased; (B) accepts the Expansion Space as being in a good and
satisfactory condition; and (C) waives any defects in the Expansion Space.
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<PAGE> 124
10. Full Force and Effect.
In the event any of the terms of the Lease conflict with the terms of this
Amendment, the terms of this Amendment shall control. The Lease remains in full
force and effect without any further amendments, alterations, or modifications
thereto except as set forth herein, and Landlord and Tenant expressly ratify and
confirm the Lease as amended hereby. The Lease, as amended by this Amendment,
constitutes the entire agreement between the parties hereto and no further
modification of the Lease shall be binding unless evidenced by an agreement in
writing signed by Landlord and Tenant.
EXECUTED the day and year first above written.
LANDLORD:
F/P/D MASTER LEASE, INC.,
a Texas corporation
By: /s/ JOHN B.DETWILER
--------------------------
Name: John B. Detwiler
------------------------
Title: Asst VP
-----------------------
TENANT:
SERVICE ASSET MANAGEMENT COMPANY,
a North Carolina corporation
By: /s/ ROGER J. EAGEMOEN, JR
--------------------------
Name: Roger J. Eagemoen, Jr
------------------------
Title: President
-----------------------
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<PAGE> 125
THIRD AMENDMENT TO OFFICE LEASE
THIS THIRD AMENDMENT TO OFFICE LEASE (this "Amendment") is
made and entered into this 30th day of September, 1999, but to be effective as
of February 17, 1999 (the "Amendment Effective Date"), by and between F/P/D
MASTER LEASE, INC., a Texas corporation "(Landlord"), and SERVICE ASSET
MANAGEMENT COMPANY, a North Carolina corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease
Agreement (the "Original Lease") dated as of May 20, 1998, with respect to the
lease of approximately 31,478 Rentable Square Feet ("Leased Premises") in the
building commonly referred to as 1700 Pacific Avenue located in Dallas, Texas
(the "BUILDING");
WHEREAS, the Original Lease has been amended by that certain
First Amendment to Office Lease dated as of July 16, 1998, and that certain
Second Amendment to Office Lease dated as of February 17, 1999 (the "Second
Amendment") (the Original Lease, as amended, the "LEASE"); and
WHEREAS, Landlord and Tenant mutually desire to amend the
Lease to modify the number of Rentable Square Feet comprising the Expansion
Space as provided in the Second Amendment and to modify certain other provisions
of the Second Amendment as set forth herein but not otherwise.
NOW THEREFORE, for and in consideration of Ten Dollars and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Landlord and Tenant, intending to be and
being legally bound, do hereby agree as follows:
1. Defined Terms.
All capitalized terms utilized herein and not defined herein shall have
the meanings ascribed thereto in the Lease.
2. Change in Rentable Square Feet.
Effective as of the Amendment Effective Date, Paragraph 2 of the Second
Amendment shall be amended as follows:
(a) The number "3,198" located in the second line thereof shall be
deleted and replaced with the number "3,448"; and
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<PAGE> 126
(b) The number "34,676" located in the fifth line thereof shall be
deleted and replaced with the number "34,926".
3. Tenant's Proportionate Share.
Effective as of the Amendment Effective Date, Paragraph 7 of the Second
Amendment shall be amended to delete the percentage "2.578%" located in the
first line thereof and to replace the percentage "2.605%" therefor.
4. Work Allowance.
Effective as of the Amendment Effective Date, the first paragraph of Section 2
of EXHIBIT B attached to the Second Amendment shall be amended to delete the
amount "$55,032" located in the fourth line thereof and to replace the amount
"$59,334.06" therefor.
5. Exhibit A.
Effective as of the Amendment Effective Date, EXHIBIT A attached to the Second
Amendment shall be deleted and replaced with EXHIBIT A attached hereto.
6. Brokerage Commission.
Except for the commission due and payable to Trinity Advisory Group and
Cousins Stone, LP. (collectively, the "BROKERS"), which commissions shall be
payable by Landlord pursuant to separate agreements entered into by Landlord and
Brokers, Landlord and Tenant hereby represent and warrant to each other that no
commission is due and payable to any broker or other leasing agent in connection
with this Amendment as a result of its own dealings with any such broker or
leasing agent, and Landlord and Tenant hereby agree to indemnify and hold each
other harmless from and against all loss, damage, cost and expense (including
reasonable attorneys fees) suffered by the other party as a result of a breach
of the foregoing representation and warranty.
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<PAGE> 127
7. Full Force and Effect.
In the event any of the terms of the Lease conflict with the terms of this
Amendment, the terms of this Amendment shall control. The Lease remains in full
force and effect without any further amendments, alterations, or modifications
thereto except as set forth herein, and Landlord and Tenant expressly ratify and
confirm the Lease as amended hereby. The Lease, as amended by this Amendment,
constitutes the entire agreement between the parties hereto and no further
modification of the Lease shall be binding unless evidenced by an agreement in
writing signed by Landlord and Tenant.
EXECUTED the day and year first above written.
LANDLORD:
F/P/D MASTER LEASE, INC.,
a Texas corporation
By: /s/ JOHN B. DETWILER
-------------------------------------
Name: John B. Detwiler
-----------------------------------
Title: Asst VP
----------------------------------
TENANT:
SERVICE ASSET MANAGEMENT COMPANY,
a North Carolina corporation
By: /s/ ROGER J. ENGEMOEN, JR.
-------------------------------------
Name: Roger J. Engemoen, Jr.
-----------------------------------
Title: President
----------------------------------
<PAGE> 128
FOURTH AMENDMENT TO OFFICE LEASE
THIS FOURTH AMENDMENT TO OFFICE LEASE (this "Amendment") is
made and entered into this 30th day of November, 1999 (the "Amendment Effective
Date"), by and between F/P/D MASTER LEASE, INC., a Texas corporation
("Landlord"), and SERVICE ASSET MANAGEMENT COMPANY, a North Carolina corporation
("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Office
Lease dated as of May 20, 1998, as amended by (i) that certain First Amendment
to Office Lease, dated as of July 16, 1998, (ii) that certain Second Amendment
to Office Lease dated as of February 17, 1999, and (iii) that certain Third
Amendment to Office Lease (the "Third Amendment"), dated as of September 20,
1999 (as amended, the "Lease"), with respect to the lease of approximately
34,676 Rentable Square Feet ("Leased Premises") in the building commonly
referred to as 1700 Pacific Avenue located in Dallas, Texas (the "Building");
and
WHEREAS, Landlord and Tenant mutually desire to amend the
Lease to expand the Leased Premises and to modify certain other provisions of
the Lease as set forth herein but not otherwise.
NOW THEREFORE, for and in consideration of Ten Dollars and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Landlord and Tenant, intending to be and
being legally bound, do hereby agree as follows:
1. Defined Terms.
(a) The "First Expansion Date" shall be the earliest to occur of (i)
January 15, 2000, or (ii) the date Tenant occupies any part of the First
Expansion Space (as defined below).
(b) The "Second Expansion Date" shall be the earliest to occur of (i)
July 1, 2000, or (ii) the date Tenant occupies any part of the Second Expansion
Space (as defined below).
(c) The "Expansion Space" shall mean, individually and collectively as
the context requires, the First Expansion Space and/or the Second Expansion
Space.
(d) All other capitalized terms utilized herein and not defined herein
shall have the meanings ascribed thereto in the Lease.
2. Expansion of Leased Premises.
(a) Commencing on the First Expansion Date, the Leased Premises shall
be expanded from the existing 34,926 Rentable Square Feet (the "Existing Space")
to include an additional 4,345
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<PAGE> 129
Rentable Square Feet on Floor 15 of the Building (the "First Expansion Space")
as shown on Exhibit A attached hereto and made a part hereof, such that the
total Rentable Square Feet contained within the Leased Premises as of the First
Expansion Date shall be 39,271 Rentable Square Feet.
(b) Commencing on the Second Expansion Date, the Leased Premises shall
be expanded from the then existing 39,271 Rentable Square Feet (as previously
expanded to include the First Expansion Space) to include an additional 11,052
Rentable Square Feet on Floor 15 of the Building (the "Second Expansion Space")
as shown on Exhibit A, such that the total Rentable Square Feet contained within
the Leased Premises as of the Second Expansion Date shall be 50,323 Rentable
Square Feet.
(c) The Expansion Space shall be added to and become part of the Leased
Premises for all purposes of the Lease and, except as expressly set forth
herein, shall be subject to all of the provisions of the Lease, as amended
hereby, applicable to the Leased Premises, including, without limitation,
Tenant's obligation to pay Rent.
3. Term of Lease for Expansion Space.
The term of the Lease (i) for the First Expansion Space shall commence
on the First Expansion Date, (ii) for the Second Expansion Space shall commence
on the Second Expansion Date, and (iii) shall expire for the First Expansion
Space, the Second Expansion Space and all other portions of the Leased Premises
on the Expiration Date.
4. Parking.
(a) Commencing on the First Expansion Date, Landlord shall provide to
Tenant, and Tenant shall accept and lease for the remainder of the Lease Term,
as it may be extended, (i) six (6) additional unreserved spaces in the Off-Site
Garage (for a total of thirty (36) unreserved spaces in the Off-Site Garage),
and (ii) one (1) additional unreserved space in the On-Site Garage (for a total
of seven (7) unreserved spaces in the On-Site Garage).
(b) Commencing on the Second Expansion Date, Landlord shall provide to
Tenant, and Tenant shall accept and lease for the remainder of the Lease Term,
as it may be extended, (i) six (6) additional unreserved spaces in the Off-Site
Garage (for a total of forty-two (42) unreserved spaces in the Off-Site Garage),
and (ii) two (2) additional unreserved spaces in the On-Site Garage (for a total
of nine (9) unreserved spaces in the On-Site Garage).
(c) Such additional spaces shall be provided to Tenant on the same
terms and conditions as set forth in Section 53 of the Lease and shall not be
considered Temporary Spaces.
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<PAGE> 130
5. Tenant Improvements.
(a) Landlord and Tenant each shall comply with the provisions of
Exhibit B attached hereto. Tenant agrees to cooperate with Landlord in
Landlord's construction of the Tenant Finish Work (as defined in said Exhibit
B), and Tenant shall not take any action which would impede or hinder Landlord's
construction of the Tenant Finish Work. Tenant hereby grants to Landlord access
to the Existing Space and the Expansion Space commencing on the date hereof, for
the purpose of the construction of the Tenant Finish Work and performing the
obligations of Landlord set forth in Exhibit B. Tenant acknowledges that (i) the
construction of the Tenant Finish Work may affect Tenant's business, (ii)
Landlord shall not be responsible for any effect such construction may have on
Tenant's business, and (iii) any such disturbance or effect in (i) or (ii) shall
not constitute a default by Landlord under the Lease as amended hereby.
(b) THE FIRST EXPANSION SPACE SHALL BE FURNISHED TO TENANT ON THE FIRST
EXPANSION DATE AND THE SECOND EXPANSION SPACE SHALL BE FURNISHED TO TENANT ON
THE SECOND EXPANSION DATE, EACH IN AN AS-IS CONDITION AND LANDLORD SHALL NOT BE
OBLIGATED TO MAKE ANY IMPROVEMENTS THERETO, EXCEPT AS MAY BE PROVIDED IN EXHIBIT
B, NOR SHALL TENANT BE ENTITLED TO ANY ALLOWANCE WITH RESPECT THERETO, EXCEPT AS
MAY BE PROVIDED IN EXHIBIT B. ADDITIONALLY, LANDLORD MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASEHOLD IMPROVEMENTS IN THE EXISTING
SPACE, THE EXPANSION SPACE OR ANY PORTION THEREOF. ALL IMPLIED WARRANTIES WITH
RESPECT THERETO, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY NEGATED AND WAIVED.
6. Minimum Rent for Expansion Space
(a) Commencing (i) on the First Expansion Date with respect to the
First Expansion Space, and (ii) on the Second Expansion Date with respect to the
Second Expansion Space, and continuing through and until the Expiration Date,
Tenant's Minimum Rent for the Expansion Space shall be an annual amount equal to
the sum of the product of(x) the annual Minimum Rental Rate, identified below
for the applicable period identified therein, multiplied by (y) the Rentable
Square Feet then included within the Expansion Space, subject in each case,
however, to the provisions of Paragraph 2 of Exhibit B.
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<PAGE> 131
<TABLE>
<CAPTION>
Period Minimum Rental Rate
------ -------------------
<S> <C>
First Expansion Date or Second Expansion $ 16.00
Date, as applicable, through the expiration of
the thirtieth (30th) month of the Lease Term
The commencement of the thirty-first (31st) $ 17.00
month of the Lease Term through the
expiration of the fifty-fourth (54th) month of
the Lease Term
The commencement of the fifty-fifth (55th) $ 18.00
month of the Lease Term through the
expiration of the seventh-eighth (78th) month
of the Lease Term
The commencement of the seventy-ninth $ 19.00
(79th) month of the Lease Term through the
expiration of the one hundred second (102nd)
month of the Lease Term
The commencement of the one hundred third $ 21.00
(103rd) month of the Lease Term through the
expiration of the one hundred twenty-sixth
(126th) month of the Lease Term
</TABLE>
All such Minimum Rent shall be payable in accordance with the
provisions set forth in the Lease.
7. Tenant's Proportionate Share.
(a) Effective as of the First Expansion Date, Tenant's Proportionate
Share shall become 2.911% (in lieu of the 2.605% share set forth in the Third
Amendment), as determined by dividing the number of Rentable Square Feet of the
Leased Premises (as expanded to include the First Expansion Space) by the Total
Building Area.
(b) Effective as of the Second Expansion Date, Tenant's Proportionate
Share shall become 3.735% (in lieu of the 2.911% share set forth in Section 7(a)
above), as determined by dividing the number of Rentable Square Feet of the
Leased Premises (as expanded to include the Second Expansion Space) by the Total
Building Area.
(c) Tenant's Proportionate Share of both Operating Costs and Total
Electricity Costs, as recalculated, shall be paid in accordance with the
provisions set forth in the Lease. The Base Year for the purpose of calculating
the Operating Costs shall remain calendar year 1998 and shall be applicable to
both the Expansion Space and the Existing Space.
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<PAGE> 132
8. Right of First Notice.
(a) If during the Lease Term space on floor 20 of the Building (the
FIRST NOTICE SPACE) is available for lease and Landlord receives an expression
of interest in the First Notice Space from a prospective tenant, Landlord shall
deliver a notice to Tenant offering to lease the First Notice Space to Tenant
(subject to subparagraph (i) below). Landlord's notice must specify the First
Notice Rate (defined below). The term AVAILABLE FOR LEASE means that the First
Notice Space is not then subject to any existing rights of third parties,
including, without limitation, rights of first notice, expansion rights,
extension rights, options to lease, or other rights. Notwithstanding the
foregoing, if during the Lease Term Landlord receives an expression of interest
in all or a part of floor 20 that also includes an expression of interest in all
or a part of any other floor from a prospective tenant, then Landlord shall not
be obligated to offer the First Notice Space to Tenant, and Tenant may not
exercise its option to lease the First Notice Space in such case.
(b) Tenant may elect to lease the First Notice Space by delivering a
notice (the RESPONSE NOTICE) to Landlord within 5 days after the date of
Landlord's notice specifying that Tenant elects either (1) to lease all, but not
less than all, of the applicable First Notice Space offered or (2) to decline to
lease the applicable First Notice Space offered.
(c) If (l) Landlord does not receive the Response Notice within the
5-day period or (2) in the Response Notice Tenant does not elect to lease all of
the applicable First Notice Space offered, Tenant is deemed to waive its right
to lease the First Notice Space and Tenant has no further rights under this
Paragraph, but Tenant shall have a continuing right of first notice with respect
to the First Notice Space subsequently offered on terms materially different
from those contained in Landlord's notice or if Landlord does not enter into a
binding commitment with the prospective tenant within 120 days after delivery of
Landlord's notice to Tenant.
(d) If Tenant timely delivers a Response Notice electing to lease all
of the applicable First Notice Space offered, Tenant's lease of the applicable
First Notice Space commences on the earlier of the date that Tenant occupies
such First Notice Space or the date 60 days after Landlord's receipt of the
Response Notice and is on the same terms as the Lease except that the Rent and
other applicable terms for the First Notice Space adjust based on the First
Notice Rate. Landlord shall prepare and deliver to Tenant an amendment to the
Lease adding the First Notice Space to the Leased Premises upon the terms
specified in this Paragraph, Tenant shall execute, and deliver the amendment to
Landlord within 10 days after Tenant's receipt of the amendment, and Landlord
will deliver to Tenant a counterpart of the amendment executed by Landlord.
(e) Landlord is not obligated to offer the First Notice Space to
Tenant, and Tenant may not exercise its option to lease the First Notice Space,
if at the time Landlord would otherwise be obligated to give the Notice to
Tenant, Tenant is in default under the Lease.
(f) The term FIRST NOTICE RATE means the Market Rate, as defined in
Paragraph 60 of the Lease, as determined by Landlord in its sole discretion,
provided the Rent components of the First Notice Rate will not be less than the
Rent then being paid under the Lease.
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<PAGE> 133
(g) Tenant may not assign this option to lease the First Notice Space
to any assignee of the Lease, nor may any sublessee or assignee exercise this
option.
9. Brokerage Commission.
Landlord and Tenant hereby represent and warrant to each other that no
commission is due and payable to any broker or other leasing agent in connection
with this Amendment as a result of its own dealings with any such broker or
leasing agent, except Trinity Advisory Group, Inc. ("Broker"), and Landlord and
Tenant hereby agree to indemnify and hold each other harmless from and against
all loss, damage, cost and expense (including reasonable attorneys' fees)
suffered by the other party as a result of a breach of the foregoing
representation and warranty.
Landlord has agreed to pay Broker a commission pursuant to a separate
agreement between Broker and Landlord.
10. Acceptance of Expansion Space.
Tenant's occupancy of the Expansion Space is conclusive evidence that
Tenant: (A) accepts the Expansion Space as suitable for the purposes for which
they are leased; (B) accepts the Expansion Space as being in a good and
satisfactory condition; and (C) waives any defects in the Expansion Space.
11. Full Force and Effect.
In the event any of the terms of the Lease conflict with the terms of
this Amendment, the terms of this Amendment shall control. The Lease remains in
full force and effect without any further amendments, alterations, or
modifications thereto, except as set forth herein, and Landlord and Tenant
expressly ratify and confirm the Lease as amended hereby. The Lease, as amended
by this Amendment, constitutes the entire agreement between the parties hereto
and no further modification of the Lease shall be binding unless evidenced by an
agreement in writing signed by Landlord and Tenant.
[END OF PAGE; SIGNATURE PAGE FOLLOWS]
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<PAGE> 134
EXECUTED the day and year first above written.
LANDLORD:
F/P/D MASTER LEASE, INC.,
a Texas corporation
By: /s/ JOHN B. DETWILER
-----------------------------------
Name: John B. Detwiler
---------------------------------
Title: Assistant Vice President
-------------------------------
TENANT:
SERVICE ASSET MANAGEMENT
COMPANY, a North Carolina corporation
By: /s/ ROGER J. ENGEMOEN JR.
-----------------------------------
Name: Roger J. Engemoen Jr.
---------------------------------
Title: President
-------------------------------
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<PAGE> 135
FIFTH AMENDMENT TO OFFICE LEASE
THIS FIFTH AMENDMENT TO OFFICE LEASE (this "Amendment") is made
and entered into this 25th day of May, 2000 (the "Amendment Effective Date"), by
and between F/P/D MASTER LEASE, INC., a Texas corporation ("Landlord"), and
SERVICE ASSET MANAGEMENT COMPANY, a North Carolina corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Office
Lease (the "Original Lease") dated as of May 20, 1998, with respect to the lease
of approximately 31,478 Rentable Square Feet ("Leased Premises") in the building
commonly referred to as 1700 Pacific Avenue located in Dallas, Texas (the
"Building");
WHEREAS, the Original Lease has been amended by that certain
First Amendment to Office Lease dated as of July 16, 1998, that certain Second
Amendment to Office Lease dated as of February 17, 1999, that certain Third
Amendment to Office Lease dated as of September 20, 1999, and that certain
Fourth Amendment to Office Lease dated as of November 30th, 1999 (the Original
Lease, as amended, the "Lease"); and
WHEREAS, Landlord and Tenant mutually desire to amend the Lease
to expand the Leased Premises and to modify certain other provisions of the
Lease as set forth herein but not otherwise.
NOW THEREFORE, for and in consideration of Ten Dollars and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Landlord and Tenant, intending to be and
being legally bound, do hereby agree as follows:
1. Defined Terms.
(a) The "Expansion Date" shall be the earliest to occur of (i) January
1, 2001, or (ii) the date Tenant occupies any part of the Expansion Space.
(b) All other capitalized terms utilized herein and not defined herein
shall have the meanings ascribed thereto in the Lease.
2. Expansion of Leased Premises.
Commencing on the Expansion Date, the Leased Premises shall be expanded
from the existing 50,323 Rentable Square Feet (the "Existing Space") to include
an additional 12,620 Rentable Square Feet on Floor 20 of the Building (the
"Expansion Space") as shown on Exhibit A attached hereto and made a part hereof,
such that the total Rentable Square Feet contained within the
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<PAGE> 136
Leased Premises as of the Expansion Date shall be 62,943 Rentable Square Feet.
The Expansion Space shall be added to and become part of the Leased Premises for
all purposes of the Lease and, except as expressly set forth herein, shall be
subject to all of the provisions of the Lease as amended hereby, applicable to
the Leased Premises, including, without limitation, Tenant's obligation to pay
Rent.
3. Term OF Expansion Space.
The term of the Lease for the Expansion Space (the "EXPANSION TERM")
shall commence on the Expansion Date and shall terminate on December 31, 2008
(the "EXPIRATION DATE"), which date is the same date the Lease shall terminate
with respect to the remainder of the Leased Premises (unless the Term of the
Lease is extended pursuant to Section 61 of the Lease, in which case the term
for the Expansion Space shall terminate on the last day of such renewal term).
4. Parking.
Commencing on the Expansion Date, Landlord shall provide to Tenant, and
Tenant shall accept and lease for the remainder of the Lease Term, as it may be
extended, ten (10) additional unreserved spaces in the Off-Site Garage (for a
total of fifty-two (52) unreserved spaces in the Off-Site Garage), and three (3)
additional unreserved spaces in the On-Site Garage (for a total of twelve (12)
spaces in the On-Site Garage), on the same terms and conditions as set forth in
Section 53 of the Lease. Such additional thirteen (13) spaces provided herein
shall not be considered Temporary Spaces.
5. Tenant Improvements.
(a) Landlord and Tenant each shall comply with the provisions of
EXHIBIT B attached hereto. Tenant agrees to cooperate with Landlord in
Landlord's construction of the Tenant Finish Work (as defined in said EXHIBIT
B), and Tenant shall not take any action which would impede or hinder
Landlord's construction of the Tenant Finish Work. Tenant hereby grants to
Landlord access to the Existing Space and the Expansion Space commencing on the
date hereof, for the purpose of the construction of the Tenant Finish Work and
performing the obligations of Landlord set forth in EXHIBIT B. Tenant
acknowledges that (i) the construction of the Tenant Finish Work may affect
Tenant's business, (ii) Landlord shall not be responsible for any effect such
construction may have on Tenant's business, and (iii) any such disturbance or
effect in (i) or (ii) shall not constitute a default by Landlord under the Lease
as amended hereby.
(b) THE EXPANSION SPACE SHALL BE FURNISHED TO TENANT ON THE EXPANSION
DATE IN AN AS-IS CONDITION AND LANDLORD SHALL NOT BE OBLIGATED TO MAKE ANY
IMPROVEMENTS THERETO EXCEPT AS MAY BE PROVIDED IN EXHIBIT B, NOR SHALL TENANT BE
ENTITLED TO ANY ALLOWANCE WITH RESPECT THERETO, EXCEPT AS MAY BE PROVIDED IN
EXHIBIT B. ADDITIONALLY, LANDLORD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH
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<PAGE> 137
RESPECT TO THE LEASEHOLD IMPROVEMENTS IN THE EXISTING SPACE, THE EXPANSION SPACE
OR ANY PORTION THEREOF. ALL IMPLIED WARRANTIES WITH RESPECT THERETO, INCLUDING
BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, ARE EXPRESSLY NEGATED AND WAIVED.
6. Minimum Rent For Expansion Space.
(a) Commencing on the Expansion Date and continuing through and until
the Expiration Date, Tenant's Minimum Rent for the Expansion Space shall be an
annual amount equal to the sum of the product of (x) the annual Minimum Rental
Rate identified below for the applicable period identified therein multiplied by
(y) the Rentable Square Feet of the Expansion Space.
<TABLE>
<CAPTION>
Period Minimum Rental Rate
------ -------------------
<S> <C>
Expansion Date through the expiration $ 17.00
of the twenty-fourth (24th) month of the
Expansion Term
The commencement of the twenty-fifth $ 18.00
(25th) month of the Expansion Term
through the expiration of the forty-eighth
(48th) month of the Expansion Term
The commencement of the forty-ninth $ 19.00
(49th) month of the Expansion Term
through the expiration of the seventy-
second (72nd) month of the Expansion
Term
The commencement of the seventy-third $ 22.00
(73rd) month of the Expansion Term
through the Expiration Date
</TABLE>
All such Minimum Rent shall be payable in accordance with the
provisions set forth in the Lease; provided, however, the first installment of
Minimum Rent for the Expansion Space shall be due and payable upon the Amendment
Effective Date.
7. Tenant's Proportionate Share.
Effective as of the Expansion Date, Tenant's Proportionate Share shall
be 4.696% (in lieu of the 3.735% share set forth in Section 1 of the Lease) and
determined by dividing the number of Rentable Square Feet of the Leased Premises
(as expanded) by the Total Building Area. Tenant's
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<PAGE> 138
Proportionate Share as recalculated shall be paid in accordance with the
provisions set forth in the Lease. The Base Year for the purpose of calculating
the Operating Costs shall remain calendar year 1998 and shall be applicable to
both the Expansion Space and the Existing Space.
8. Right of First Notice.
(a) If during the Lease Term space on floor 20 of the Building (the
FIRST NOTICE SPACE) is available for lease and Landlord receives an expression
of interest in the First Notice Space from a prospective tenant, Landlord shall
deliver a notice to Tenant offering to lease the First Notice Space to Tenant
(subject to subparagraph (i) below). Landlord's notice must specify the First
Notice Rate (defined below). The term AVAILABLE FOR LEASE means that the First
Notice Space is not then subject to any existing rights of third parties,
including, without limitation, rights of first notice, expansion rights,
extension rights, options to lease, or other rights. Notwithstanding the
foregoing, if during the Lease Term Landlord receives an expression of interest
in all or a part of floor 20 that also includes an expression of interest in all
or a part of any other floor from a prospective tenant, then Landlord shall not
be obligated to offer the First Notice Space to Tenant, and Tenant may not
exercise its option to lease the First Notice Space in such case.
(b) Tenant may elect to lease the First Notice Space by delivering a
notice (the RESPONSE NOTICE) to Landlord within 5 days after the date of
Landlord's notice specifying that Tenant elects either (1) to lease all, but
not less than all, of the applicable First Notice Space offered or (2) to
decline to lease the applicable First Notice Space offered.
(c) If (1) Landlord does not receive the Response Notice within the
5-day period or (2) in the Response Notice Tenant does not elect to lease all of
the applicable First Notice Space offered, Tenant is deemed to waive its right
to lease the First Notice Space and Tenant has no further rights under this
Paragraph, but Tenant shall have a continuing right of first notice with respect
to the First Notice Space subsequently offered on terms materially different
from those contained in Landlord's notice or if Landlord does not enter into a
binding commitment with the prospective tenant within 120 days after delivery of
Landlord's notice to Tenant.
(d) If Tenant timely delivers a Response Notice electing to lease all
of the applicable First Notice Space offered, Tenant's lease of the applicable
First Notice Space commences on the earlier of the date that Tenant occupies
such First Notice Space or the date 60 days after Landlord's receipt of the
Response Notice and is on the same terms as the Lease except that the Rent and
other applicable terms for the First Notice Space adjust based on the First
Notice Rate. Landlord shall prepare and deliver to Tenant an amendment to the
Lease adding the First Notice Space to the Leased Premises upon the terms
specified in this Paragraph, Tenant shall execute, and deliver the amendment to
Landlord within 10 days after Tenant's receipt of the amendment, and Landlord
will deliver to Tenant a counterpart of the amendment executed by Landlord.
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<PAGE> 139
(e) Landlord is not obligated to offer the First Notice Space to
Tenant, and Tenant may not exercise its option to lease the First Notice Space,
if at the time Landlord would otherwise be obligated to give the Notice to
Tenant, Tenant is in default under the Lease.
(f) The term FIRST NOTICE RATE means the Market Rate, as defined in
Paragraph 60 of the Lease, as determined by Landlord in its sole discretion,
provided the Rent components of the First Notice Rate will not be less than the
Rent then being paid under the Lease.
(g) Tenant may not assign this option to lease the First Notice Space
to any assignee of the Lease, nor may any sublessee or assignee exercise this
option.
9. Brokerage Commission.
Landlord and Tenant hereby represent and warrant to each other that no
commission is due and payable to any broker or other leasing agent in connection
with this Amendment as a result of its own dealings with any such broker or
leasing agent, except Trinity Advisory Group, Inc. ("Broker"), and Landlord and
Tenant hereby agree to indemnify and hold each other harmless from and against
all loss, damage, cost and expense (including reasonable attorneys' fees)
suffered by the other party as a result of a breach of the foregoing
representation and warranty.
10. Acceptance of Expansion Space.
Tenant's occupancy of the Expansion Space is conclusive evidence that
Tenant: (A) accepts the Expansion Space as suitable for the purposes for which
they are leased; (B) accepts the Expansion Space as being in a good and
satisfactory condition; and (C) waives any defects in the Expansion Space.
11. Full Force and Effect.
In the event any of the terms of the Lease conflict with the terms of
this Amendment, the terms of this Amendment shall control. The Lease remains in
full force and effect without any further amendments, alterations, or
modifications thereto except as set forth herein, and Landlord and Tenant
expressly ratify and confirm the Lease as amended hereby. The Lease, as amended
by this Amendment, constitutes the entire agreement between the parties hereto
and no further modification of the Lease shall be binding unless evidenced by an
agreement in writing signed by Landlord and Tenant.
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<PAGE> 140
EXECUTED the day and year first above written.
LANDLORD:
F/P/D MASTER LEASE, INC.,
a Texas corporation
By: /s/ JOHN B. DETWILER
-------------------------------------
Name: John B. Detwiler
-----------------------------------
Title: Assistant Vice President
----------------------------------
TENANT:
SERVICE ASSET MANAGEMENT COMPANY,
a North Carolina corporation
By: /s/ ROGER J. ENGEMOEN, JR.
-------------------------------------
Name: Roger J. Engemoen, Jr.
-----------------------------------
Title: President
----------------------------------
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