1
EXHIBIT 10.7
FOUR GREENSPOINT PLAZA
LEASE AGREEMENT
BY AND BETWEEN
GREENSPOINT PLAZA LIMITED PARTNERSHIP
(LANDLORD)
AND
ICARUS CORPORATION
(TENANT)
2
TABLE OF CONTENTS
I.
LEASED PREMISES 1.1
INITIAL LEASEHOLD IMPROVEMENTS 1.2
II.
TERM 2.1
USE 2.2
BASE RENTAL 2.3
TENANT'S PROPORTIONATE SHARE OF BASIC COSTS 2.4
ADDITIONAL RENTAL 2.5
SECURITY DEPOSIT 2.6
III.
SERVICES 3.1
KEYS AND LOCKS 3.2
GRAPHICS 3.3
IMPROVEMENTS TO BE MADE BY LANDLORD 3.4
PEACEFUL ENJOYMENT 3.5
LIMITATION OF LANDLORD'S PERSONAL LIABILITY 3.6
PARKING 3.7
IV.
PAYMENTS BY TENANT 4.1
REPAIRS BY LANDLORD 4.2
REPAIRS BY TENANT 4.3
CARE OF THE LEASED PREMISES 4.4
ASSIGNMENT OR SUBLEASE 4.5
ALTERATIONS, ADDITIONS, IMPROVEMENTS 4.6
LEGAL USE AND VIOLATIONS OF INSURANCE COVERAGE 4.7
LAWS AND REGULATIONS; RULES OF BUILDING 4.8
ENTRY FOR REPAIRS AND INSPECTION 4.9
NUISANCE AND ODORS 4.10
SUBORDINATION TO MORTGAGE 4.11
ESTOPPEL CERTIFICATE OR THREE PARTY AGREEMENT 4.12
ii
3
V.
CONDEMNATION AND LOSS OR DAMAGE 5.1
DAMAGES FROM CERTAIN CAUSES 5.2
LIEN FOR RENT 5.3
LANDLORD'S RIGHT TO RELET 5.4
HOLDING OVER 5.5
CASUALTY 5.6
ATTORNEY'S FEES 5.7
ALTERATION 5.8
ASSIGNMENT BY LANDLORD 5.9
DEFAULT BY TENANT 5.10
NON-WAIVER 5.11
CASUALTY INSURANCE 5.12
LIABILITY INSURANCE 5.13
HOLD HARMLESS 5.14
WAIVER OF SUBROGATION RIGHTS 5.15
ENTIRE AGREEMENT, REPRESENTATIONS, ETC 5.16
TIME IS OF THE ESSENCE 5.17
BROKERS 5.18
NO WARRANTIES 5.19
REMEDIES CUMULATIVE 5.20
GOVERNING LAW 5.21
SUCCESSORS 5.22
NOTICES 5.23
SEVERABILITY 5.24
AUTHORITY 5.25
RELOCATION 5.26
RENEWAL OPTION 5.27
EXHIBITS
--------
FLOOR PLAN EXHIBIT A
TENANT IMPROVEMENT WORK SCHEDULE EXHIBIT B
PARKING EXHIBIT C
BUILDING RULES AND REGULATIONS EXHIBIT D
BUILDING STANDARD IMPROVEMENTS EXHIBIT E
AIR CONDITIONING AND HEATING SERVICES EXHIBIT F
iii
4
INDEX OF DEFINED TERMS
The terms set forth below shall have the meanings given to
them in the Sections and/or Exhibits designated below.
BASE RATE. As defined in Exhibit F
BASE RENTAL. As defined in Section 2.3.
BASE YEAR. As defined in Section 2.4(a).
BASIC COSTS. As defined in Section 2.4(a)C.
BUILDING. As defined in Section 1.1.
COMMENCEMENT DATE. As defined in Section 2.1(a).
COMMON AREAS. As defined in Section 1.1.
EVENT OF DEFAULT. As defined in Section 5.10.
GARAGE. As defined in Exhibit C.
HIGH-RISK ITEMS. As defined in Exhibit B(4)(c).
HOLIDAYS. As defined in Exhibit F.
KILOWATT HOUR RATE. As defined in Exhibit F.
LANDLORD. As defined in the Preamble.
LANDLORD'S CONTRACTOR. As defined in Exhibit B(2)(a).
LEASE. As defined in the Preamble.
LEASED PREMISES. As defined in Section 1.1.
MAXIMUM RATE. As defined in Section 2.3.
MORTGAGEE. As defined in Section 4.11(a).
NET RENTABLE AREA. As defined in Section 1.1.
OPERATING EXPENSES. As defined in Section 2.4(c).
PRICING LETTER. As defined in Exhibit B(2)(a).
PRIME LANDLORD. As defined in Section 4.11(a).
PROJECT. As defined in Section 1.1.
RULES AND REGULATIONS. As defined in Section 4.8.
SEPARATE CONTRACTOR. As defined in Exhibit B(2)(b).
SERVICE AREAS. As defined in Section 1.1.
SHELL. As defined in Exhibit B(4)(b).
SUBSTANTIAL COMPLETION. As defined in Exhibit B(4)(a).
TENANT. As defined in the Preamble.
TENANT DELAY. As defined in Exhibit B(4)(c).
TENANT EXTRA IMPROVEMENTS. As defined in Exhibit B(1)(a).
TENANT IMPROVEMENTS. As defined in Exhibit B(1)(a).
TENANT PLANS. As defined in Exhibit B(1)(b).
TENANT'S PROPORTIONATE SHARE. As defined in Section 2.4(a).
TERM. As defined in Section 2.1(a).
TOWN CENTER. As defined in Section 1.1.
UNDERLYING LEASE. As defined in Section 4.11(a).
UNDERLYING MORTGAGE. As defined in Section 4.11(a).
1
5
LEASE AGREEMENT
THE STATE OF TEXAS Section
Section
COUNTY OF ▇▇▇▇▇▇ Section
THIS LEASE AGREEMENT (this "Lease") is made and entered into
on this the ____ day of January, 1997, by and between GREENSPOINT PLAZA LIMITED
PARTNERSHIP, a Texas limited partnership whose address for purposes hereof is
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Landlord"), and ICARUS
CORPORATION, a Maryland corporation ("Tenant"). Tenant's address for purposes
hereof until commencement of the term of this Lease shall be ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President) and thereafter shall be at the Leased Premises (hereinafter
defined):
WITNESSETH:
I.
1.1 LEASED PREMISES. Subject to and upon the terms,
provisions and conditions hereinafter set forth, and each in consideration of
the duties, covenants and obligations of the other hereunder, Landlord does
hereby lease, demise and let to Tenant and Tenant does hereby lease and take
from Landlord those certain premises ("Leased Premises") in the building known
as Four Greenspoint Plaza located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Building"), which building is a part of the multi-use
development known as Greenspoint Plaza and/or Greenspoint Town Center (the
"Town Center") in the City of Houston, ▇▇▇▇▇▇ County, Texas, such premises
being more particularly described as follows:
containing approximately four thousand five hundred and thirty five
(4,535) square feet of Net Rentable Area on ▇▇▇▇▇ ▇▇ as reflected on
the floor plan of such premises attached hereto and made a part hereof
as Exhibit A.
The term "Net Rentable Area", as used herein, shall refer to
(i) in the case of a single tenancy floor, all floor area measured from the
inside surface of the outer glass or finished column wall of the Building to
the inside surface of the opposite outer wall excluding only the areas
("Service Areas") within the outside walls used for building stairs, fire
towers, elevator shafts, flues, vents, stacks, pipe shafts and vertical ducts,
but including any such service areas which are for the specific use of the
particular tenant such as special stairs or elevators plus an allocation of the
square footage
-1-
6
of the Building's elevator and main mechanical and electrical rooms, management
office, other areas necessary to provide customary services to the Building and
public lobbies, and (ii) in the case of a floor to be occupied by more than one
tenant, all floor areas within the inside surface of the outer glass or
finished column walls enclosing the Leased Premises and measured to the
mid-point of the walls separating areas leased by or held for lease to other
tenants or from areas devoted to corridors, elevator foyers, rest rooms,
mechanical rooms, janitor closets, vending areas and other similar facilities
for the use of all tenants on the particular floor ("Common Areas"), but
including a proportionate part of the Common Areas located on such floor based
upon the ratio which the tenant's Net Rentable Area (excluding Common Areas) on
such floor bears to the aggregate Net Rentable Area (excluding Common Areas) on
such floor plus an allocation of the square footage of the Building's elevator
and main mechanical and electrical rooms, management office, and other areas
necessary to provide customary services to the Building and public lobbies. No
deductions from Net Rentable Area shall be made for columns or projections
necessary to the Building. The Net Rentable Area in the Leased Premises has
been calculated on the basis of the foregoing definition and is hereby
stipulated for all purposes hereof to be four thousand five hundred and thirty
five (4,535) square feet, whether the same should be more or less as a result
of minor variations resulting from actual construction and completion of the
Leased Premises for occupancy so long as such work is done in accordance with
the terms and provisions hereof.
The term "Project" means and includes the Building, the
Garage, the land upon which the Building and the Garage are located, and all
central plants, surface parking areas, plaza areas, driveways, walkways,
sidewalks and landscaped areas which are adjacent and/or related thereto,
together with such additional lands or improvements which may now or in the
future serve the Building and/or the Garage.
Subject to the terms of this Lease, Tenant, its agents,
employees and invitees shall be entitled to use the Common Areas, and shall
have access to the Leased Premises through them, during the Term and any
Renewal Option.
1.2 INITIAL LEASEHOLD IMPROVEMENTS. Landlord and Tenant
shall each comply with the provisions of the tenant improvement schedule
attached hereto and made a part hereof as Exhibit B.
II.
2.1 TERM.
(a) Subject to and upon the terms and conditions set forth
herein, and in each exhibit or addendum hereto, this Lease shall continue in
force for a term (the "Term") of 60 months, beginning on the 1st day of April,
1997 (the "Commencement Date"), and ending on the last day of the 60th full
calendar month following the Commencement Date.
-2-
7
(b) In the event the Leased Premises should not be ready
for occupancy by the Commencement Date stated in Section 2.1(a) above, or in
the event the Commencement Date is delayed as a result of Landlord's acts or
otherwise, Landlord shall not be liable or responsible for any claims, damages
or liabilities in connection therewith or by reason thereof. As Tenant's sole
and exclusive remedy for any such delay, the term of this Lease shall not
commence until the Commencement Date occurs, and the rent provided for herein
shall not commence to be payable until the Commencement Date. At the request
of either party, a declaration of lease commencement in form and substance
reasonably acceptable to the parties will be executed specifying the
Commencement Date established above.
(c) This Lease shall survive the termination of any
underlying lease, provided such underlying landlord recognizes this Lease.
2.2 USE. The Leased Premises shall be used and occupied
by Tenant (and its permitted assignees and subtenants) solely as general,
administrative and executive offices (including such ancillary uses in
connection therewith as shall be reasonably required by Tenant in the operation
of its business); provided, that in no event shall any of the following be
permitted in the Leased Premises: (i) offices or agencies of a foreign
government or political subdivision thereof; (ii) offices of any governmental
bureau or agency of the United States or any state or political subdivision
thereof; (iii) personnel agencies; or (iv) customer service offices of any
public utility company. The following uses shall not be permitted in the
Leased Premises except to the extent they are ancillary to an otherwise
permitted use: (v) data processing activities; (vi) health care activities;
(vii) schools or other training or educational uses; (viii) clerical support
services; (ix) reservation centers for airlines or travel agencies; (x) retail
or restaurant use; (xi) studios for radio, television or other media; or (xii)
storage. The Leased Premises shall not be used for any purpose which would, in
Landlord's reasonable opinion, lower the first-class character of the Building
or any part thereof, create unreasonable or excessive elevator or floor loads,
interfere with any of the operations of the Building or any part thereof or the
proper and economic heating, air-conditioning, cleaning or other servicing of
the Building or any part thereof or unreasonably interfere with the use of the
other areas of the Building by any other tenants.
2.3 BASE RENTAL. Tenant hereby agrees to pay annual base
rental ("Base Rental") without deduction, offset or counterclaim in an amount
equal to the product of $19.56 per square foot of Net Rentable Area multiplied
by the Net Rentable Area of the Leased Premises, plus a management fee of 3% of
Tenant's Base Rental and Additional Rental. Base Rental shall be due and
payable, without notice or demand, in twelve (12) equal installments on the
first day of each calendar month during the Term, and any renewals or
extensions thereof at Landlord's address as provided herein (or such other
address as may be designated by Landlord from time to time). If the Term
commences on other than the first day of a month or terminates on other than
the last day of a month, then the installments of Base Rental for such month or
months shall be prorated and the installment or installments so prorated shall
be paid in advance. All past due installments of rent shall
-3-
8
bear interest until paid at the lesser of (i) eighteen percent (18%) per annum
or (ii) the maximum lawful contract rate permitted by applicable law (the
"Maximum Rate").
2.4 TENANT'S PROPORTIONATE SHARE OF BASIC COSTS.
(a) There is established under this Lease a "Base Year",
which for these purposes is the calendar year 1996. In the event that the
Basic Costs (as hereinafter defined) of Landlord's ownership, maintenance and
operation of the Project during the first calendar year after the Base Year
shall differ from the Basic Costs of Landlord therefor during the Base Year,
Tenant shall pay its proportionate share of the year's increases in the Basic
Costs for such year in the proportion its Net Rentable Area bears to the
greater of 95% of the total Net Rentable Area of the Building leased or held
for lease for office and/or retail use or to the total Net Rentable Area in the
Building actually leased for office and/or retail use ("Tenant's Proportionate
Share"). If Tenant's Proportionate Share of any increase or projected increase
in Basic Costs is payable by Tenant for any partial calendar year, then such
amount shall be prorated for such partial calendar year of commencement,
expiration or termination so that Tenant pays an amount equal to Tenant's
Proportionate Share of the amount by which the Basic Costs exceed the Base
Year's Basic Costs, multiplied by a fraction, the numerator of which is the
number of days in such calendar year for which Tenant is obligated to pay
Tenant's Proportionate Share of any increase in Basic Costs in such calendar
year and the denominator is 365.
(b) For each calendar year during the Term following the
Base Year, Landlord shall provide Tenant a comparison of the Base Year's Basic
Costs and the projected Basic Costs for such year prior to January 1 of such
year, and Tenant shall thereafter pay Landlord an amount estimated by Landlord
for such year as Tenant's Proportionate Share of any projected increase in
Landlord's Basic Costs for the Project for such year over Base Year's Basic
Costs. The estimated amount of Tenant's Proportionate Share of any projected
increases in Basic Costs shall be due without notice, demand, deduction, offset
or counterclaim, and payable at the same place as Base Rental in twelve (12)
equal monthly installments on the first day of each calendar month during such
year. Landlord shall within the period of one hundred fifty (150) days (or as
soon thereafter as possible), after the close of each calendar year following
the first calendar year, provide Tenant a statement of such year's actual Basic
Costs showing the actual increase in Landlord's Basic Costs of operating the
Project from the Base Year. If the actual increase is greater than that
projected, Tenant shall pay Landlord, within thirty (30) days of Tenant's
receipt of such statement, Tenant's Proportionate Share of the difference. If
such year's projected Basic Costs are greater than the actual Basic Costs,
Landlord shall pay Tenant, within thirty (30) days of said statement's
issuance, Tenant's Proportionate Share of the difference; provided, however,
the rental owed by Tenant shall never be less than the Base Rental stated in
Section 2.3.
(c) "Basic Costs" as said term is used herein shall
consist of all operating expenses of the Project, and such additional
facilities in subsequent years as may be determined by Landlord to be
necessary. All operating expenses shall be computed on an accrual basis and
determined in accordance with generally accepted accounting principles which
shall be consistently applied. The
-4-
9
term "operating expenses" as used herein shall mean all expenses, costs and
disbursements (but not replacement of capital investment items (other than
those described in subparagraph 9 below) nor specific costs especially billed
to and paid by specific tenants) of every kind and nature which Landlord shall
pay or become obligated to pay because of or in connection with the ownership,
maintenance and operation of the Project, including, but not limited to, the
following:
(1) Wages, salaries, benefits and related
expenses of all on-site employees and the allocable pro rata cost of such
expenses attributable to off-site personnel providing services to the Project
engaged in the operation, maintenance or access control of the Project and
personnel who may provide traffic control relating to ingress and egress to and
from the Project. All taxes, insurance and benefits relating to employees
providing these services shall be included.
(2) All costs and expenses of operating the
management administrative office for the Project.
(3) All supplies, tools, equipment, and materials
used in operation and maintenance of the Project.
(4) Cost of all utilities for the Project
including the cost of water and power, heating, lighting, air conditioning and
ventilating for the Project and the cost of operating any central plant that
may serve the Building.
(5) Cost of all maintenance and service
agreements for the Project and the equipment therein, including, but not
limited to, access control service, window cleaning, elevator maintenance,
cleaning and restriping.
(6) Cost of all insurance relating to the Project
including, but not limited to, the cost of casualty and liability insurance
applicable to the Project and Landlord's personal property used in connection
therewith.
(7) All taxes and assessments and governmental
charges whether federal, state, county or municipal, and whether they be by
taxing districts or authorities presently taxing the Leased Premises or by
others, subsequently created or otherwise, and any other taxes and assessments
attributable to the Project or its operation. It is agreed that Tenant will be
responsible for ad valorem taxes on its personal property and on the value of
Leasehold improvements to the extent that same exceed standard building
allowances.
(8) Cost of repairs and general maintenance
(excluding repairs and general maintenance paid by proceeds of insurance or by
Tenant or other third parties, and alterations attributable solely to tenants
of the Building other than Tenant).
-5-
10
(9) Amortization (including a reasonable interest
charge) of the cost of installation of capital investment items which are
primarily for the purpose of reducing operating costs or which may be required
by governmental authority. All such costs shall be amortized over the
reasonable life of the capital investment items and added to Basic Costs, with
the reasonable life and amortization schedule being determined in accordance
with generally accepted accounting principles and in no event to extend beyond
the reasonable life of the Building. In the case of installations for the
purpose of reducing operating costs, Landlord shall have a cost justification
for its practicality.
(10) Landlord's central accounting and audit costs
applicable to the Project including the cost of audits by certified public
accountants.
(11) The Building's share of all expenses related
to the operation, ownership and maintenance of the Town Center, including, but
not limited to, ad valorem property taxes, property owner association
assessments and the cost of maintaining and operating the common facilities of
the Town Center.
Notwithstanding any other provision herein to the contrary, it
is agreed that in the event the Building is not fully occupied or provided with
Building Standard services during the Base Year or any subsequent year, the
Basic Costs shall be computed for such year as though the Building had been
fully occupied and had been provided with Building Standard services during
such year.
Anything in the foregoing provisions hereof to the contrary
notwithstanding, Operating Expenses shall not include the following:
(A) Costs of repairs, restoration, replacements
or other work occasioned by (1) fire, windstorm or other casualty of an
insurable nature (whether such destruction be total or partial) and paid by
insurance then in effect obtained by Landlord, (2) the exercise by any
governmental authority of the right of eminent domain, whether such taking be
partial or total, and (3) the gross negligence or willful misconduct of
Landlord, or its agents and employees.
(B) Leasing commissions, attorneys' fees, costs,
disbursements and other expenses incurred in connection with negotiations for
leases with tenants, other occupants, or prospective tenants or other occupants
of the Project, or similar costs incurred in connection with disputes with
tenants, other occupants, or prospective tenants or other occupants of the
Project.
(C) Allowances and other costs and expenses
(including permit, license and inspection fees) incurred in fixturing,
furnishing, renovating or otherwise improving, decorating or redecorating space
for tenants or prospective tenants of the Project, or vacant leasable space in
the Building (excluding normal maintenance, repair and replacement costs).
(D) The cost of all items, goods and services for
which Tenant, any other tenant or occupant of the Project or other third party
(including insurers) reimburses Landlord or for
-6-
11
which Landlord is entitled to reimbursement to the extent of such entitlement
(other than through the payment of a tenant's share of Operating Expenses of
the Project).
(E) Costs which are to be capitalized in
accordance with generally accepted accounting principles not included under
subsection (9) above.
(F) Costs or expenses for services of a type or
quantity which Tenant is not entitled to receive (and does not receive) but
which are provided to another tenant or occupant of the Project.
(G) Any penalties or legal costs paid by Landlord
due to the violation by Landlord of the terms of any lease pertaining to the
Project.
(H) Payments of principal and interest or other
finance charges made on any debt (except as provided in subsection (9) above),
and rental payments made under any ground or underlying lease or leases, except
to the extent that a portion of such payments is expressly for ad valorem/real
estate taxes or insurance premiums on the Project.
(I) Landlord's general corporate overhead
relating solely to the internal organization and function of Landlord as a
business entity (i.e., trustee's fees and partnership organizational expenses)
(as opposed to the maintenance, ownership and operation of the Project).
(J) Any compensation paid to clerks, attendants
or other persons employed in commercial concessions operated by Landlord for a
profit in leasable space in the Building (but excluding any compensation paid
to clerks, attendants or other persons in operating the Garage).
(K) Payments for rented equipment, the cost of
which equipment would constitute a capital expenditure (as defined in
accordance with generally accepted accounting principles) if the equipment were
purchased (but excluding rented equipment described in subsection (9) above).
(L) Advertising and promotional costs associated
with the leasing of the Project.
(M) Cost of any political or charitable donations
or contributions.
(N) Costs of acquiring or maintaining (to the
extent the maintenance is in excess of Building standard maintenance) fine art
work in the Project.
2.5 ADDITIONAL RENTAL. Tenant shall be obligated to pay
at the same place as Base Rental all amounts due under this Lease, including,
without limitation, Tenant's Proportionate Share of any increase in Basic Costs
as set forth in Sections 2.4 (a) and (b) herein, without notice,
-7-
12
demand, offset or counterclaim, and all such amounts shall constitute
additional rental ("Additional Rental") owed by Tenant to Landlord. Landlord
shall have the same remedies for default in the payment of Additional Rental as
are available to Landlord in the event of a default in the payment of Base
Rental.
Tenant, at its expense, shall have the right at all
reasonable times to audit Landlord's books and records relating to this Lease
for the Base Year and any year or years for which Tenant shall be obligated to
pay Tenant's Proportionate Share of any increase in Basic Costs as set forth in
Sections 2.4(a) and (b), or, at Landlord's sole discretion, Landlord will
provide an audit prepared by an independent certified public accountant. Any
such audit by Tenant must be conducted either by Tenant's own employees or by
an independent auditor as defined by generally accepted auditing standards.
Further, Tenant may exercise such audit rights for any calendar year only if
Tenant notifies Landlord of Tenant's intent to audit within ninety (90) days
after the date Tenant receives from Landlord the annual reconciliation
statement described in Section 2.4(b), and Tenant's audit rights shall in all
events expire as to any calendar year on December 31 of the calendar year
following such calendar year.
2.6 SECURITY DEPOSIT.
(a) Tenant shall pay to Landlord on the date this Lease is
executed by Tenant a security deposit equal to one (1) month of the Base Rental
due during the first twelve (12) months of the Term (without regard to any rent
concessions or holidays granted to Tenant by Landlord) and such other security
as Landlord may require. Upon the occurrence of any default by Tenant,
Landlord may, from time to time, without prejudice to any other remedy, use the
security deposit to the extent necessary to make good any arrears of rent, or
to pay any sums owed to Landlord under this Lease, or any damage, injury,
expense or liability caused to Landlord by such default. The security deposit
shall not be considered an advance payment of rent or a measure of Landlord's
damages in case of default by Tenant. Tenant shall not be entitled to receive
any interest on the security deposit, and Landlord may commingle the same with
other monies of Landlord. If Landlord shall from time to time apply the
security deposit to pay the sums described above, and if this Lease has not
been terminated, Tenant shall immediately deposit with Landlord an additional
security deposit equal to the amount so used. Tenant shall not assign or
encumber the security deposit in any manner, and Landlord shall not be bound by
any such assignment or encumbrance.
(b) If Tenant shall fully and faithfully comply with all
of the terms, provisions, covenants and conditions of this Lease, then the
security deposit shall be returned to Tenant (without regard to any assignment
or encumbrance of the same) within thirty (30) days after:
(i) the termination of this Lease (provided such
termination is not the result of a default by Tenant),
-8-
13
(ii) delivery of possession of the Leased Premises
to Landlord in accordance with the provisions
of Section 4.4, and
(iii) payment of all sums due to Landlord
hereunder.
Upon sale or lease of the Building, Landlord shall transfer the security
deposit to the vendee or Tenant and Landlord shall be released by Tenant upon
said transfer from all liability for the return of such security deposit and
Tenant agrees to look solely to the new landlord for the return of the security
deposit. It is agreed that the provisions hereof shall apply to every transfer
or assignment made of the security deposit to a new landlord.
III.
SERVICES TO BE FURNISHED BY LANDLORD
Landlord covenants and agrees with Tenant:
3.1 SERVICES. Landlord shall use reasonable efforts to
furnish (as part of the Basic Costs of the Project) Tenant while occupying the
Leased Premises:
(a) Hot and cold water at those points of supply provided
for general use of other tenants in the Building; central heat and air
conditioning as provided in Exhibit F attached hereto; routine maintenance and
electric lighting service for all public areas and special service areas of the
Building in the manner and to the extent deemed by Landlord to be standard.
(b) Janitor service on a five (5)-day week basis at no
extra charge; provided, however, if Tenant's floor covering or other
improvements is other than Building Standard (as defined in Exhibit E attached
hereto), Tenant shall pay as Additional Rental the additional cleaning cost
attributable thereto, plus fifteen percent (15%) to cover overhead. Tenant
shall pay said Additional Rental upon presentation of a statement therefor by
Landlord, and Tenant's failure to pay shall constitute default hereunder after
Tenant's failure to pay within ten (10) days.
(c) Sufficient electrical capacity distributed to a panel
box located at the core of each floor of the Leased Premises to operate (A)
typewriters, voice writers, calculating machines and other machines of similar
low electrical consumption (120/208 volts) to the extent that the total design
load of low electrical voltage within the Leased Premises does not to exceed
two (2) ▇▇▇▇▇ per square foot of usable area, and (B) lighting and equipment of
standard high voltage electrical consumption (277/480 volt) to the extent that
the total design load of high electrical voltage within the Leased Premises
does not exceed two (2) ▇▇▇▇▇ per square of usable area. If the installation
of said electrical equipment requires additional air conditioning capacity
above that provided by the
-9-
14
Building Standard system, then the additional air conditioning installation and
operating costs, plus fifteen percent (15%) to cover overhead, will be the
obligation of Tenant.
(d) All Building Standard fluorescent bulb replacement in
all areas and all incandescent bulb replacement in public areas, toilet and
rest room areas and stairwells.
(e) Access control to the Building during weekends and
after normal working hours during the week so as to provide Tenant with seven
day and twenty-four hour access to the Leased Premises; PROVIDED, HOWEVER, THAT
LANDLORD SHALL NOT BE LIABLE TO TENANT, ITS AGENTS, CONTRACTORS, CUSTOMERS,
EMPLOYEES, INVITEES, LICENSEES, SERVANTS OR VISITORS FOR ANY DAMAGES, LOSSES,
CLAIMS, OR CAUSES OF ACTION, ARISING OUT OF OR IN CONNECTION WITH PERSONAL
INJURY OR PROPERTY DAMAGE CAUSED BY OR DUE TO THEFT, BURGLARY OR PERSONS
GAINING ACCESS TO THE BUILDING, THE PROJECT OR THE LEASED PREMISES, EVEN IF
CAUSED BY THE NEGLIGENCE OF LANDLORD.
Failure by Landlord to any extent to furnish any services to
Tenant, the Leased Premises or the Project, or any cessation thereof, shall not
render Landlord liable in any respect for damages to person, property or
otherwise, nor be construed as an eviction of Tenant, nor work an abatement of
rent (except as expressly provided in this paragraph), nor relieve Tenant from
fulfillment of any covenant or agreement hereof; provided, however, that should
Landlord cease to furnish any of the aforementioned services or such services
are interrupted for reasons other than (i) curtailment in services imposed by
any governmental authority, (ii) failure of the public utilities to furnish
necessary services, or (iii) Tenant's negligence, gross negligence or willful
misconduct (a "Service Interruption"), and if, as a result of such Service
Interruption, the Leased Premises (or any part thereof) is untenantable such
that Tenant must vacate that portion of the Leased Premises affected and such
Service Interruption continues for a period of three (3) or more consecutive
Business Days (as defined below) after Landlord's receipt of written notice
from Tenant of such Service Interruption, then all rent including, without
limitation, Base Rental shall ▇▇▇▇▇ as to those portions of the Leased Premises
rendered untenantable, which abatement shall commence on the fourth (4th)
consecutive Business Day after Landlord's receipt of written notice from Tenant
of such Service Interruption and shall continue until such space is again
tenantable. The foregoing rental abatement rights shall constitute Tenant's
sole and exclusive remedies involving or with respect to a Service
Interruption. Notwithstanding the foregoing, if a Service Interruption occurs
as a result of or in connection with a fire or other casualty or a taking or
condemnation for a public purpose (or a conveyance in lieu thereof), the
foregoing rental abatement rights shall not be available to Tenant, and
Tenant's and Landlord's rights and obligations with respect thereto shall be
governed by Section 5.1 of this Lease in the case of a taking or condemnation
(or a conveyance in lieu thereof) or by Section 5.6 of this Lease in the case
of a fire or other casualty. Should any of the equipment or machinery utilized
in supplying the services listed herein break down, or for any cause cease to
function properly, Landlord shall use due diligence to repair same promptly.
-10-
15
3.2 KEYS AND LOCKS. Landlord shall, at Landlord's
expense, furnish Tenant two (2) keys each for no more than two (2) corridor
doors entering the Leased Premises. Additional keys will be furnished at a
charge by Landlord on an order signed by Tenant or Tenant's authorized
representative. All such keys shall remain the property of Landlord. No
additional locks shall be allowed on any door of the Leased Premises without
Landlord's permission, and Tenant shall not make, nor permit to be made, any
duplicate keys, except those furnished by Landlord. Upon termination of this
Lease, Tenant shall surrender to Landlord all keys of the Leased Premises, and
give to Landlord the explanation of the combination of all locks for safes,
safe cabinets and vault doors, if any, remaining in the Leased Premises.
3.3 GRAPHICS. Landlord shall provide and install, at
Tenant's cost, all letters or numerals at Tenant's primary entrance door to the
Leased Premises; all such letters and numerals shall be in the Building
Standard graphics, and no others shall be used or permitted on the Leased
Premises. Landlord also agrees to provide and install, at Tenant's expense, a
listing on the Building directory board. All costs and expenses shall be
reasonable and agreed upon by the parties.
3.4 IMPROVEMENTS TO BE MADE BY LANDLORD. All
installations now or hereafter placed on the Leased Premises in excess of
Building Standard items shall be for Tenant's account and at Tenant's cost (and
Tenant shall pay ad valorem taxes and increased insurance thereon), which cost
shall be payable by Tenant to Landlord as Additional Rental hereunder promptly
upon being invoiced therefor provided all costs were preapproved by Tenant and
all installations properly made in accordance with all laws, and failure by
Tenant to pay same in full within thirty (30) days shall constitute an Event of
Default by Tenant hereunder and a breach of this Lease by Tenant giving rise to
all remedies available to Landlord under this Lease and at law for nonpayment
of rent.
3.5 PEACEFUL ENJOYMENT. That Tenant shall, and may
peacefully have, hold and enjoy the Leased Premises, subject to the other terms
hereof, provided that Tenant pays the rental and other sums herein recited to
be paid by Tenant and performs all of Tenant's covenants and agreements herein
contained. It is understood and agreed that this covenant and any and all
other covenants of Landlord contained in the Lease shall be binding upon
Landlord and its successors only with respect to breaches occurring during its
and their respective ownerships of the Landlord's interest hereunder.
3.6 LIMITATION OF LANDLORD'S PERSONAL LIABILITY. It is
understood and agreed by Landlord and Tenant that any and all covenants of
Landlord contained in this Lease shall be binding upon Landlord and its
successors only with respect to breaches occurring during the period of
Landlord's and its successor's respective ownership of the Landlord's interest
hereunder. Tenant specifically agrees to look solely to Landlord's interest in
the Building for the recovery of any judgment from Landlord, it being agreed by
Landlord and Tenant that Landlord's (or its successor's) partners,
shareholders, officers, directors and employees shall never be personally
liable for any such judgment. The provision contained in the foregoing sentence
is not intended to, and shall not, limit any right that Tenant might otherwise
have to obtain injunctive relief against
-11-
16
Landlord or Landlord's successors in interest, or any other action not
involving the personal liability of Landlord. LANDLORD'S DUTIES AND WARRANTIES
ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LEASE AND SHALL NOT INCLUDE ANY
IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS
OR WARRANTIES HAVE BEEN MADE BY LANDLORD OTHER THAN THOSE CONTAINED IN THIS
LEASE.
3.7 PARKING. Parking shall be provided as set forth in
Exhibit C attached hereto and made a part hereof.
IV.
Tenant covenants and agrees with Landlord:
4.1 PAYMENTS BY TENANT. Tenant shall pay all rent and
sums provided to be paid to Landlord hereunder at the times and in the manner
herein provided.
4.2 REPAIRS BY LANDLORD. Unless otherwise stipulated
herein, Landlord shall not be required to make any improvements to or repairs
of any kind or character on the Leased Premises during the Term, except such
repairs as may be deemed necessary by Landlord for normal maintenance
operations. The obligation of Landlord to maintain and repair the Common Areas
and the Leased Premises in good order and repair, including replacements, shall
be limited to Building Standard items, improvements, the exterior and
structural portions of the Building and those areas for which a tenant is not
responsible for the maintenance, repair or replacement of same. Non-Building
Standard items improvements will, at Tenant's written request, be maintained by
Landlord at Tenant's expense, at a cost or charge equal to the costs incurred
in such maintenance plus an additional charge of fifteen percent (15%) to cover
overhead.
4.3 REPAIRS BY TENANT. Tenant shall, at its own cost and
expense, to repair or replace any damage or injury done to the Project, or any
part thereof, caused by Tenant or Tenant's agents, employees, invitees, or
visitors and which are not covered by any casualty insurance maintained or
required to be maintained by Landlord hereunder; provided, however, if Tenant
fails to make such repairs or replacement promptly after receipt of written
notice to cure, Landlord may, at its option, make repairs or replacements, and
Tenant shall repay the cost thereof, plus fifteen percent (15%) to cover
overhead, to the Landlord on demand, subject to Section 5.15.
4.4 CARE OF THE LEASED PREMISES. Tenant shall not commit,
or allow to be committed, any waste or damage on any portion of the Leased
Premises, and at the termination of this Lease, by lapse of time or otherwise,
to deliver up said Leased Premises to Landlord in as good condition as at date
of possession by Tenant, ordinary wear and tear excepted, and upon such
termination of this Lease, Landlord shall have the right to re-enter and resume
possession of the Leased Premises.
-12-
17
4.5 ASSIGNMENT OR SUBLEASE. In the event Tenant should
desire to assign this Lease or sublet the Leased Premises or any part thereof,
Tenant shall give Landlord written notice of such desire at least sixty (60)
days in advance of the date on which Tenant desires to make such assignment or
sublease. Landlord shall then have a period of thirty (30) days following
receipt of such notice within which to notify Tenant in writing that Landlord
elects either (1) to terminate this Lease as to the space so affected as of the
date so specified by Tenant in which event Tenant will be relieved of all
further obligations under this Lease as to such space which occur after the
date of such termination, or (2) to permit Tenant to assign this Lease or
sublet such space, subject, however, to (i) written approval of the proposed
assignee or subtenant by Landlord and (ii) the requirement that Tenant enter
into written agreements with Landlord, and with assignee or subtenant, that any
profit realized by Tenant as a result of such assignment or sublease with
respect to the use and occupancy of the Leased Premises (meaning, in the case
of an assignment, the consideration agreed upon between Tenant and assignee or,
in the case of a sublease, the difference between the rental rate agreed upon
between Tenant and subtenant and the rent then required to be paid under this
Lease multiplied by the number of months in the term of the sublease) shall, to
the extent such profit is immediate, be due and payable by Tenant to Landlord
upon the execution of an assignment or sublease, and, to the extent such profit
is deferred, be payable to Landlord by assignee or subtenant as it accrues, or
(3) to refuse to consent to Tenant's assignment of this Lease or sublease of
such space and to continue this Lease in full force and effect as to the entire
Leased Premises. If Landlord should fail to notify Tenant in writing of such
election within the stated thirty (30) day period, Landlord shall be deemed to
have elected option (3) above. No consent by Landlord to any assignment or
sublease shall be deemed to be consent to a use not permitted under this Lease,
to any act in violation of this Lease, or to any other or subsequent assignment
or sublease, and no assignment or sublease by Tenant shall relieve Tenant of
any obligation under this Lease. Any sublease or assignment shall be subject
to all the terms and conditions of this Lease. Any attempted assignment or
sublease by Tenant in violation of the terms and covenants of this paragraph
shall be void.
Notwithstanding anything to the contrary contained in this
Section 4.5, the consent of Landlord need not be obtained for (i) any
assignment or subletting to an Affiliate (defined below) of Tenant, (ii) any
assignment of this Lease made in connection with the merger or consolidation of
Tenant with or into any other corporation or entity, and (iii) an assignment of
this Lease made in connection with a sale or transfer of a majority of the
assets and liabilities of Tenant, so long as, with respect to clauses (i), (ii)
and (iii), (1) the assignee or sublessee shall be engaged in the same field of
services as Tenant, (2) the assignee or sublessee is engaged in a business
customarily acceptable for a tenant in a first class high-rise office building
in Town Center, (3) any assignee shall assume all of the obligations of Tenant
under this Lease, (4) at the time of such assignment or subletting, this Lease
is in full force and effect and there is no breach under this Lease on the part
of Tenant, (5) the assignee's or sublessee's proposed use of the Leased
Premises is not in violation of this Lease, and (6) any assignee's
shareholders' equity or net worth, as applicable, is equal to or greater than
Tenant's shareholders' equity or net worth, as applicable, as of the
Commencement Date (determined in accordance with generally accepted accounting
principles) (such assignee or sublessee in clause
-13-
18
(i), (ii) and (iii) complying with clauses (1), (2), (3), (4), (5) and (6),
hereinafter a "Permitted Affiliate"). At least ten (10) days prior to the
effective date of any such assignment or sublease to a Permitted Affiliate,
Tenant agrees to furnish Landlord with notice of such assignment or sublease
and copies of the instruments effecting any such assignment or sublease.
Additionally, within thirty (30) days after the effective date of any such
assignment or sublease to a Permitted Affiliate, Tenant agrees to furnish
Landlord with copies of the fully executed instruments effecting any such
assignment or sublease and documentation establishing Tenant's satisfaction of
the requirements set forth above applicable to any such sublease or assignment.
Any such assignee of Tenant must assume and agree in writing to fully perform
and observe all of the obligations and agreements of Tenant under this Lease
and any such sublessee shall sublease such portion of the Leased Premises
subject to the provisions of this Lease. No such assignment or subletting
shall relieve Tenant, any other tenant, or any guarantor of this Lease of any
covenants or obligations under this Lease or any such guaranty and Tenant, any
other tenant, and any guarantors of this Lease shall remain fully liable
hereunder and thereunder. Notwithstanding anything to the contrary set forth
in this Lease, the rights granted to Tenant under this paragraph of subsection
(a) as to assignments and subleases to Permitted Affiliates shall not be
assignable by Tenant, shall inure only to the benefit of Tenant and shall not
be enforceable by any assignee or sublessee of Tenant.
As used herein, "Affiliate" shall mean any person or entity
controlling, controlled by, or under common control with, another person or
entity. "Control" as used herein means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of
such controlled person or entity (the ownership, directly or indirectly, of at
least fifty-one percent (51%) of the voting securities of, or possession of the
right to vote, in the ordinary direction of its affairs, at least fifty-one
percent (51%) of the voting interest in, any person or entity shall be presumed
to constitute such control).
4.6 ALTERATIONS, ADDITIONS, IMPROVEMENTS. Tenant shall
not permit the Leased Premises to be used for any purpose other than that
stated in the use clause hereof, or make or allow to be made any alterations or
physical additions in or to the Leased Premises, or place signs on the Leased
Premises which are visible from outside the Leased Premises, without first
obtaining the written consent of Landlord, which consent (or denial thereof)
shall not be unreasonably withheld, conditioned or delayed if same do not
affect the Building structure or mechanical, electrical or plumbing systems and
are not visible outside the Premises. Any and all such alterations, physical
additions, or improvements, when made to the Leased Premises by Tenant, shall
at once become the property of Landlord and shall be surrendered to Landlord
upon termination of this Lease by lapse of time or otherwise; provided,
however, this clause shall not apply to movable equipment or furniture owned by
Tenant. Tenant agrees specifically that no food, soft drink or other vending
machine will be installed within the Leased Premises. Tenant shall not be
deemed to be the agent or representative of Landlord in making any such
alterations, physical additions or improvements to the Leased Premises, and
shall have no right, power or authority to encumber any interest in the
Building in connection therewith. However, should any mechanics' or other
liens be filed against any portion of the Building or any interest therein by
reason of Tenant's acts or omissions or because of a claim
-14-
19
against Tenant or its contractors, Tenant shall cause the same to be cancelled
or discharged of record by bond or otherwise within fifteen (15) days after
notice by Landlord. If Tenant shall fail to cancel or discharge said lien or
liens, within said fifteen (15) day period, which failure shall be deemed to be
a default hereunder, Landlord may, at its sole option and in addition to any
other remedy of Landlord hereunder, cancel or discharge the same and upon
Landlord's demand, Tenant shall promptly reimburse Landlord for all reasonable
costs incurred in cancelling or discharging such lien or liens. Landlord shall
have the right at all times to post and keep posted on the Leased Premises any
notices permitted or required by law, or that Landlord shall deem proper for
the protection of Landlord, the Leased Premises, the Building, the Project and
any other party having an interest therein, from mechanics, materialman's and
other liens.
4.7 LEGAL USE AND VIOLATIONS OF INSURANCE COVERAGE.
(a) Tenant shall not occupy, use or permit any portion of
the Leased Premises to be occupied or used for any business or purpose that is
disreputable, illegal or creates a fire hazard, or permit anything to be done
within the Leased Premises that would increase the rate of insurance coverage
on the Building and/or its contents. If Tenant commits any act or permits any
use that increases the cost of any insurance policy required to be carried
hereunder, or that increases the cost to occupy or prepare the Leased Premises
for occupancy, then Tenant shall reimburse Landlord, upon demand, for any such
additional premiums or cost as certified by the insurance carrier as being
solely attributable to Tenant's use of the Leased Premises for other than
general office use. In connection with such demand for payment of such
increase, Landlord shall deliver to Tenant a written statement setting forth
the amount of any such cost increase and showing in reasonable detail the
manner in which the increase has been allocated to Tenant's acts within or use
of the Leased Premises.
(b) Prior to the Commencement Date and during the Term of
the Lease, except to the extent Landlord did not deliver the Leased Premises in
compliance with laws as of the Commencement Date, Tenant, at Tenant's sole cost
and expense, shall promptly comply with all present and future laws,
ordinances, orders, rules, regulations and requirements of all federal, state,
municipal and local governmental bodies exercising jurisdiction thereover, and
all orders, rules and regulations of any governmental body that may be
applicable to the Leased Premises (and all facilities used in connection
therewith, to the extent that such are reserved for the exclusive use of the
Tenant), whatever the nature of such regulations, including without limitation
environmental rules and regulations, and other governmental or Landlord-imposed
standards governing Tenant's use of, activity within or occupancy of the Leased
Premises for the purpose of insuring compliance with such applicable laws
except to the extent Landlord did not deliver the Leased Premises in compliance
with laws as of the Commencement Date Tenant shall further observe and comply
with the requirements of all policies of public liability, fire and all other
policies of insurance at any time in force with respect to the Building or any
part thereof. Tenant covenants not to use in, on or about the Leased Premises,
for original construction, or for maintenance, repairs, alterations,
improvements, additions or changes any material or substance prohibited for
such use or in any other similar application prohibited by any governmental
rule, regulation, ordinance, statute or order including, without limitation,
asbestos-
-15-
20
containing materials. Tenant shall at all times defend, protect, indemnify,
save and keep harmless the Landlord, its partners, shareholders, directors,
officers, agents and employees from and against all claims, loss, cost, damage
or expense arising out of or from Tenant's breach of this provision. Tenant
further covenants and agrees that it will not use, keep or suffer to be kept,
or generate or store any hazardous substances, pollutants or contaminants
(collectively "Hazardous Substances") in, upon or about the Leased Premises or
the Building in violation of any applicable law or other than as customary for
an office building tenant. Tenant shall promptly remove and clean up any
Hazardous Substance brought on, to or about the Leased Premises or the
Building, by Tenant, its agents, employees, contractors, invitees or licensees
in violation of this provision. Tenant shall indemnify Landlord, its partners,
shareholders, directors, officers, agents and employees for all reasonable
costs and expenses incurred by Landlord to correct any violation of this
covenant, or to remove, neutralize or render harmless any Hazardous Substance,
or to comply with the requirements of any regulatory body having jurisdiction
over Hazardous Substances, or to contest the actions of any such regulatory
body with respect to the Leased Premises or the Building. Tenant's agreement
to indemnify Landlord, its partners, shareholders, directors, officers, agents
and employees shall survive the expiration of this Lease.
4.8 LAWS AND REGULATIONS; RULES OF BUILDING. Subject to
the provisions of Section 4.7(b), Tenant shall comply with all laws,
ordinances, rules and regulations (state, federal, municipal and other agencies
or bodies having any jurisdiction thereof) relating to the use, condition or
occupancy of the Leased Premises. Tenant will comply with the rules of the
Building adopted and altered by Landlord from time to time for the safety, care
and cleanliness of the Leased Premises and Building and for preservation of
good order therein (the "Rules and Regulations"), all of which will be sent by
Landlord to Tenant in writing and shall be thereafter carried out and observed
by Tenant. A copy of the current Rules and Regulations are attached hereto and
made a part hereof as Exhibit D for information purposes only and Landlord
specifically reserves the right in its sole discretion to modify such Rules and
Regulations from time to time as Landlord shall deem necessary and appropriate.
4.9 ENTRY FOR REPAIRS AND INSPECTION. Tenant shall permit
Landlord or its agents or representatives to enter into and upon any part of
the Leased Premises at all reasonable hours to inspect the same, clean or make
repairs, alterations or additions thereto, as Landlord may deem necessary or
desirable, or to show the same to current or prospective purchasers,
mortgagees, investors and/or tenants, provided Landlord does not interfere with
Tenant's use and occupancy of the Leased Premises to any greater extent than is
reasonably necessary, and Tenant shall not be entitled to any abatement or
reduction of rent by reason thereof.
4.10 NUISANCE AND ODORS. Tenant shall conduct its business
and control its agents, employees, invitees, and visitors in such manner as not
to create any nuisance, or interfere with, annoy or disturb any other tenant or
Landlord in its operation of the Building. Tenant shall not, during occupancy
of, remodeling or construction within the Leased Premises, cause or permit any
strong, unusual, offensive or objectionable odors, gases or vapors to be
produced within the Leased
-16-
21
Premises whether such odors, gases or vapors are contained within the Leased
Premises or migrate from or are permitted by Tenant to be emitted outside of
the Leased Premises. Landlord, at its sole discretion, shall determine if any
such odors, gases or vapors are in violation of this provision.
4.11 SUBORDINATION TO MORTGAGE.
(a) This Lease is subject and subordinate to each mortgage
(an "Underlying Mortgage") and each underlying financing or ground lease (an
"Underlying Lease") which may now or subsequently affect Landlord's interest in
the Project. Tenant agrees, however, that the holder of the Underlying
Mortgage (the "Mortgagee") or the landlord under the Underlying Lease (the
"Prime Landlord") as applicable, may at its option, unilaterally elect to
subordinate, in whole or in part, by an instrument in form and substance
satisfactorily to such party, such Underlying Mortgage or Underlying Lease, as
applicable, to this Lease. Tenant agrees to execute promptly and to deliver to
Landlord or such party an instrument or instruments confirming the foregoing if
requested by Landlord or such party and agrees that if Tenant fails or refuses
to do so within fifteen (15) days after receipt of written request thereof by
Landlord or such party, such failure or refusal shall constitute a default by
Tenant under this Lease, but such failure or refusal shall in no way affect the
validity or enforceability of this Section 4.11. Landlord shall request for
Tenant a non-disturbance agreement from each Mortgagee and/or Prime Landlord in
form and substance reasonably acceptable to the parties, but shall have no
obligation if a Mortgagee or Prime Landlord refuses delivery of same.
(b) In the event of the enforcement by the Mortgagee of
the remedies provided for by law or by such Underlying Mortgage, or in the
event of the termination of an Underlying Lease, Tenant shall, upon request of
any person succeeding to the interest of the Mortgagee or upon the request of
the Prime Landlord, automatically become the tenant of such successor in
interest or the Prime Landlord as the case may be, without change in the terms
or provisions of this Lease provided, that neither such successor in interest
nor such Prime Landlord, as applicable, shall be (i) bound by any payment of
the Rent for more than one month in advance except prepayments in the nature of
security for the performance by Tenant of its obligations under this Lease;
(ii) bound by any amendment or modification of this Lease made without the
consent of the Mortgagee or Prime Landlord, as applicable; (iii) liable for any
act, warranty or omission of the prior Landlord under this Lease; (iv) subject
to the offsets, deductions or defenses which Tenant might have arising out of
acts or omissions of Landlord; (v) liable for the breach of any warranties or
obligations relating to construction of improvements for the Project or
leasehold improvements in the Leased Premises performed or to have been
performed by Landlord, or (vi) liable for the return of any security deposit
not delivered to such successor in interest or Prime Landlord, as the case may
be. At the request of Landlord, a Mortgagee, such successor in interest and/or
Prime Landlord, Tenant shall execute and deliver to such Mortgagee, successor
in interest and/or Prime Landlord a written instrument whereby Tenant confirms
the foregoing attornment. If Tenant shall fail or refuse to so execute and
deliver such instrument within fifteen (15) days after written request is made,
then Tenant shall be in default under this Lease, but such failure or refusal
shall in no way affect the validity or enforceability of this Section 4.11.
-17-
22
Tenant agrees to give prompt written notice to each Mortgagee
and Prime Landlord who has given Tenant written notice of its address of any
default by Landlord under this Lease which would entitle Tenant to terminate or
cancel this Lease or ▇▇▇▇▇ the rent payable hereunder, and agrees that,
notwithstanding any provision of this Lease, no rental abatement or notice of
cancellation or termination on behalf of Tenant shall be effective unless all
such Mortgagees and Prime Landlords have received said notice and have failed
for thirty (30) days of receipt thereof to cure Landlord's default, or if the
default cannot be cured within thirty (30) days, have failed to commence and to
diligently pursue the cure of Landlord's default which gave rise to such right
of cancellation or abatement.
4.12 ESTOPPEL CERTIFICATE OR THREE PARTY AGREEMENT. Within
ten (10) business days after receipt of written request therefor by Landlord or
Tenant, the other party shall:
(a) execute estoppel certificates addressed to or enter
into a three-party agreement with (i) any mortgagee or prospective mortgagee or
ground lessor of Landlord, (ii) any purchaser or prospective purchaser of all
or any portion of, or interest in, the Project, or (iii) any investor in the
Project, or (iv) to any prospective purchaser of Tenant's business and/or an
assignee of the Lease or subtenant of the Lease Premises certifying to the best
of the certifying party's knowledge (i) that this Lease is unmodified and in
full force and effect (or if there have been modifications, identifying such
modifications and certifying that the Lease, as modified, is in full force and
effect); (ii) the dates to which the Base Rental and any and all Additional
Rental has been paid; (iii) that the Landlord or Tenant, as the case may be, is
not in default under any provision of this Lease (or if Landlord or Tenant, as
the case may be, is in default, specifying each such default); (iv) the address
to which notices to Landlord or Tenant shall be sent; and (v) other matters as
such mortgagee(s), purchaser(s) or investor may reasonably require; and
agreeing to such notice provisions and other matters as such third party may
reasonably require; and
(b) deliver to Landlord such information regarding the net
worth and financial condition of Tenant as Landlord may reasonably request in
connection with such mortgage, sale or investments to the extent available to
Tenant without incurring any material additional cost or expense to prepare
such information.
-18-
23
V.
Landlord and Tenant mutually covenant and agree as follows:
5.1 CONDEMNATION AND LOSS OR DAMAGE. If the Leased
Premises shall be taken or condemned for any public purpose to such an extent
as to render a material portion of the Leased Premises untenantable, this
Lease shall, at the option of either party, forthwith cease and terminate.
Otherwise, this Lease shall not terminate on account of condemnation. All
proceeds from any taking or condemnation of the Leased Premises shall belong to
and be paid to Landlord except that Tenant shall be entitled to any element of
damage attributable to Tenant's business or injury thereto, Tenant Extra
Improvements (and other improvements made by or at the expense of Tenant)
and/or the relocation of Tenant provided that Landlord's award is not affected.
5.2 DAMAGES FROM CERTAIN CAUSES. Landlord shall not be
liable or responsible to Tenant for any loss or damage to any property or
person occasioned by theft, fire, act of God, public enemy, injunction, riot,
strike, insurrection, war, court order, requisition or order of governmental
body or authority, or for any damage or inconvenience which may arise through
repair or alteration of any part of the Building or failure to make any such
repairs unless due to the gross negligence or willful misconduct of Landlord,
its agents and/or employees.
5.3 LIEN FOR RENT. In consideration of the mutual
benefits arising under this Lease, Tenant hereby grants to Landlord a lien and
security interest on all tangible property of Tenant now or hereafter placed in
or upon the Leased Premises, and such property shall be and remain subject to
such lien and security interest of Landlord for payment of all rent and other
sums agreed to be paid by Tenant herein. The provisions of this paragraph
relating to said lien and security interest shall constitute a security
agreement under the Uniform Commercial Code as enacted in the State of Texas so
that Landlord shall have and may enforce a security interest on all tangible
property of Tenant now or hereafter placed in or on the Leased Premises,
including but not limited to all fixtures, machinery, equipment, furnishings
and other articles of personal property now or hereafter placed in or upon the
Leased Premises by Tenant. Tenant agrees to execute as debtor such financing
statement or statements as Landlord may now or hereafter reasonably request in
order that such security interest or interests may be protected pursuant to
said Code. Landlord may at its sole cost and expense and upon its election at
any time file a copy of this Lease as a financing statement. Landlord, as
secured party, shall be entitled to all of the rights and remedies afforded a
secured party under said Code in addition to and cumulative of the landlord's
liens and rights provided by law or by the other terms and provisions of this
Lease.
5.4 LANDLORD'S RIGHT TO RELET. In the event of default by
Tenant in any of the terms or covenants of this Lease or in the event the
Leased Premises are abandoned by Tenant, Landlord shall have the right, but not
the obligation, to relet same for the remainder of the Term, and if the rent
received through reletting does not at least equal the rent provided for
herein, Tenant shall pay and satisfy the deficiency between the amount of the
rent so provided for and that received through reletting, including, but not
limited to, the reasonable cost of renovating, altering and decorating for a
new occupant.
-19-
24
Nothing herein shall be construed as in any way denying Landlord the right, in
the event of abandonment of said premises or other breach of this Lease by
Tenant, to treat the same as an entire breach and at Landlord's option to
terminate this Lease and/or immediately seek recovery for the entire breach of
this Lease and any and all damages which Landlord suffers thereby.
5.5 HOLDING OVER. In the event of holding over by Tenant
after expiration or termination of this Lease without the written consent of
Landlord, Tenant shall pay as rental during the holdover period double the
greater of (A) the Base Rental and Additional Rental payable immediately prior
to the expiration or termination, or (B) then prevailing market rental rate for
the Leased Premises. No holding over by Tenant after the Term shall be
construed to extend the Lease. In the event of any unauthorized holding over,
Tenant shall indemnify Landlord against all claims for damages by any tenant to
whom Landlord may have leased all or any part of the Leased Premises effective
upon the termination of this Lease and for any other reasonable loss, cost,
damage or expense (including reasonable attorneys' fees and costs of suit)
incurred by Landlord as a result of such holding over. Any holding over with
the consent of Landlord in writing shall thereafter constitute a lease from
month to month.
5.6 CASUALTY. In the event of a fire or other casualty in
the Leased Premises, Tenant shall immediately give notice thereof to Landlord.
If the Leased Premises shall be partially destroyed by fire or other casualty
so as to render the Leased Premises untenantable in whole or in part, the
rental provided for herein shall ▇▇▇▇▇ thereafter as to the portion of the
Leased Premises rendered untenantable until such time as the Leased Premises
are made tenantable and Landlord agrees to commence and prosecute such repair
work promptly and with all due diligence. Notwithstanding the foregoing, in
the event such destruction results in the Leased Premises being untenantable in
whole or in substantial part for a period reasonably estimated by a responsible
contractor selected by Landlord to be one year or longer after the casualty, or
in the event of total or substantial damage or destruction of the Building from
any cause (which shall mean any damage of greater than fifty (50%) of the
insurable value of the Building and/or any damage which requires more than one
year to repair), then Landlord shall have the right to terminate this Lease and
all rent owed up to the time of such destruction or termination shall be paid
by Tenant (it being understood that Tenant shall pay rent on all tenantable
space until termination of this Lease). Landlord shall give Tenant written
notice of its decisions, estimates or elections under this Section 5.6 within
sixty (60) days after any such damage or destruction. In the event of
destruction to the Leased Premises resulting in the same being untenantable in
whole or in substantial part for a period reasonably estimated by a responsible
contractor selected by Landlord to be one year or longer after the date of the
casualty and Landlord has not terminated this Lease as herein provided, then
Tenant shall have the right, within thirty (30) days after Landlord delivers
the estimate to Tenant of time to restore, to terminate this Lease by written
notice to Landlord. Notwithstanding anything contained in this Section 5.6,
Landlord shall be obligated to restore or rebuild only the portion of the
Leased Premises which consists of building standard improvements, and nothing
herein shall be construed to obligate Landlord under any circumstances to
repair or restore any other tenant finish work.
5.7 ATTORNEYS' FEES. In the event Tenant makes default in
the performance of any of the terms, covenants, agreements or conditions
contained in this Lease and Landlord places the
-20-
25
enforcement of this Lease, or any part thereof, or the collection of any rent
due, or to become due hereunder or recovery of the possession of the Leased
Premises in the hands of an attorney, or files suit upon same, Tenant agrees to
pay Landlord reasonable attorneys' fees to Landlord plus court costs in the
event Landlord prevails in such matter. Moreover, Landlord agrees to pay
Tenant reasonable attorneys' fees and court costs in the event Tenant prevails
in any action against Landlord.
5.8 ALTERATION. This Lease may not be altered, changed or
amended, except by an instrument in writing signed by both parties hereto.
5.9 ASSIGNMENT BY LANDLORD. Landlord or any
successor-in-interest to Landlord shall have the right to transfer and assign,
in whole or in part, all its rights and obligations hereunder and in the
Project and property referred to herein, and in such event and upon the
transferee Landlord's assumption of transferor Landlord's obligations
thereafter accruing hereunder (any such transferee to have the benefit of, and
be subject to, the provisions of Section 3.6) no further liability or
obligation shall thereafter accrue against Landlord hereunder. Upon request by
transferor Landlord, Tenant agrees to execute a certificate certifying such
facts (if true) as transferor Landlord may reasonably require in connection
with any such assignment by transferor Landlord.
5.10 DEFAULT BY TENANT. If (i) default shall be made in
the payment of any sum to be paid by Tenant under this Lease, and default shall
continue for ten (10) days after delivery (or attempted but refused delivery)
of notice from Landlord (provided that Landlord shall only be obligated to give
Tenant notice of any monetary default twice in any twelve (12) month period,
and thereafter Tenant shall be deemed in default within ten (10) days after
failure to make such payment without requirement of notice from Landlord), or
(ii) default shall be made in the performance of any of the other covenants or
conditions that Tenant is required to observe and to perform, and such default
shall continue for twenty (20) days, or (iii) if the interest of Tenant under
this Lease shall be levied on under execution or other legal process, or (iv)
if any petition shall be filed by or against Tenant to declare Tenant a
bankrupt or to delay, reduce or modify Tenant's debts or obligations, or (v) if
any petition shall be filed or other action taken to reorganize or modify
Tenant's capital structure if Tenant be a corporation or other entity, or (vi)
if Tenant be declared insolvent according to law, or (vii) if any assignment of
Tenant's property shall be made for the benefit of creditors, or (viii) if a
receiver or trustee is appointed for Tenant or its property, or (ix) if Tenant
shall abandon the Leased Premises during the Term or any renewals or extensions
thereof (any of (i) through (ix) is herein called an "Event of Default"), then
Landlord may treat the occurrence of any one or more of the Events of Default
as a breach of this Lease (provided that no such levy, execution, legal
process, declaration, appointment or petition filed against Tenant shall
constitute a breach of this Lease if Tenant shall contest the same by
appropriate proceedings and shall remove or vacate the same within ninety (90)
days from the date of its creation, service or filing) and thereupon, at
Landlord's option, may have any one or more of the following described remedies
in addition to all other rights and remedies provided at law or in equity:
(a) Landlord may terminate this Lease and forthwith
repossess the Leased Premises and be entitled to recover forthwith as damages a
sum of money equal to the total of (i) the cost of
-21-
26
recovering the Leased Premises, (ii) the unpaid rent earned at the time of
termination, plus interest thereon at the Maximum Rate thereon from the due
date, (iii) the balance of the rent for the remainder of the Term less the fair
market value of the Leased Premises for said period, as determined by Landlord
and (iv) any other sum of money and damages owed by Tenant to Landlord.
(b) Landlord may terminate Tenant's right of possession
(but not this Lease) and may repossess the Leased Premises by forcible entry or
detainer suit or otherwise, without demand or notice of any kind to Tenant and
without terminating this Lease, in which event Landlord may, but shall be under
no obligation to do so, relet the same for the account of Tenant for such rent
and upon such terms as shall be reasonably satisfactory to Landlord. For the
purpose of such reletting, Landlord is authorized to make any repairs, changes,
alterations or additions in or to the Leased Premises that may be necessary,
and (a) if Landlord shall fail or refuse to relet the Leased Premises, or (b)
if the same are relet and a sufficient sum shall not be realized from such
reletting after paying (i) the unpaid rent due hereunder earned but unpaid at
the time of reletting plus interest thereon at the Maximum Rate thereon, (ii)
the reasonable cost of recovering possession, (iii) all of the reasonable costs
and expenses of repairs, changes, alterations and additions and (iv) the
reasonable expense of such reletting and of the collection of the rent accruing
therefrom to satisfy the rent provided for in this Lease to be paid, then
Tenant shall pay to Landlord as damages a sum equal to the amount of the rental
reserved in this Lease for such period or periods, or if the Leased Premises
have been relet, the Tenant shall satisfy and pay any such deficiency upon
demand therefor from time to time and Tenant agrees that Landlord may file suit
to recover any sums falling due under the terms of this Section 5.10(b) from
time to time, and that no delivery to or recovery of any portion due Landlord
hereunder shall be any defense in any action to recover any amount not
theretofore reduced to judgment in favor of Landlord, nor shall such reletting
be construed as an election on the part of Landlord to terminate this Lease
unless a written notice of such intention be given to Tenant by Landlord.
Notwithstanding any such reletting without termination, Landlord may at any
time thereafter elect to terminate this Lease for such previous breach.
(c) Upon any such default by Tenant in the payment of rent
as required by this Lease, Landlord or Landlord's agent may change the door
lock of the Leased Premises. In such event, Landlord or its agent shall place
a written notice on Tenant's front door stating the name and the address or
telephone number of the individual or company from which the new key may be
obtained. The new key may be obtained (i) only during Tenant's regular
business hours and (ii) only upon payment in full of the delinquent rent.
Landlord may lock out Tenant in the event of any such default without being
deemed in any manner guilty of conversion, trespass, eviction, or forcible
entry or detainer, without incurring any liability for any damage, claim, or
cause of action resulting therefrom and without relinquishing any other right
or rights given to Landlord hereunder or by operation of law or in equity. If
Landlord shall violate the provisions of this subparagraph, Tenant's sole
remedy shall be to recover possession of the Leased Premises and Tenant
expressly waives any and all rights and remedies under Section 93.002(g) of the
Texas Property Code, as amended. As provided in Section 93.002(h) of the Texas
Property Code, the terms and provisions of this subparagraph of the Lease
supersede the terms and conditions of said Section 93.002 to the extent of any
conflict between the two provisions.
-22-
27
(d) All past due rent and other amounts due hereunder
shall bear interest at the Maximum Rate.
5.11 NON-WAIVER. Failure of Landlord to declare any default
immediately upon occurrence thereof, or delay in taking any action in
connection therewith, shall not waive such default nor constitute a waiver of
any future default, but Landlord shall have the right to declare any such
default at any time and take such action as might be lawful or authorized
hereunder, either in law or in equity. Neither the acceptance by Landlord of
rent or any other payment hereunder, whether or not any default hereunder by
Tenant is then known to Landlord, nor any custom or practice followed in
connection with this Lease, shall constitute a waiver of any of Tenant's
obligations under this Lease.
5.12 CASUALTY INSURANCE.
(a) At all times during the Term, Landlord shall maintain,
or cause to be maintained, at Landlord's expense (which expense will be an
Operating Expense under Section 2.4(c) of this Lease), a policy or policies of
insurance with the premiums thereon fully paid in advance, issued by and
binding upon an insurance company of good financial standing authorized to do
business in Texas, insuring the Building and the Building Standard improvements
against loss or damage by fire or other insurable hazards and contingencies in
amounts selected by Landlord; provided, however, that Landlord shall not be
obligated to insure any furniture, equipment, machinery, goods or supplies not
covered by this Lease that Tenant may keep or maintain in the Leased Premises,
or any non-Building Standard improvements or alterations that Tenant may make
upon the Leased Premises. If the annual premiums charged Landlord for such
casualty insurance exceed the standard premium rates because the nature of
Tenant's operations result in extra-hazardous or higher than normal risk
exposure, then Tenant shall, upon receipt of appropriate premium invoices,
reimburse Landlord for such increases in premium. Any payments for losses
under Landlord's casualty insurance shall be made solely to Landlord and the
mortgagee.
(b) At all times during the Term, Tenant shall maintain
insurance coverage against loss or damage by fire and such other risks as are
from time to time included in a standard or special extended coverage
endorsement insuring the full insurable value of any non-Building Standard
improvements, any alterations, Tenant's trade fixtures, furnishings, equipment,
and all other items of personal property of Tenant. All policies required to
be carried by Tenant under this Section 5.12(b) shall be written with
financially responsible insurance companies authorized to do business in Texas
and with a Best & Company rating of "B+, IX" or better, and all evidence of
insurance provided to Landlord shall contain an endorsement naming Landlord as
an additional insured and at least thirty (30) days' prior written notice of
cancellation to Landlord. Tenant shall deliver to Landlord a certificate of
insurance outlining the insurance required herein at least fifteen (15) days
prior to the Commencement Date and fifteen (15) days prior to all renewals
thereof. Any self-insurance policies maintained by Tenant shall be subject to
Landlord's prior written approval. If Tenant fails to provide evidence of
insurance required hereunder, prior to commencement of the Term, and thereafter
during the Term, within fifteen (15) days prior to the expiration date of any
such coverage, Landlord shall be authorized (but not required) after written
notice of its intention to do so, and Tenant's failure to obtain such insurance
and provide reasonably evidence
-23-
28
thereof to Landlord within one (1) business day after Tenant's receipt of such
notice, to procure such coverage in the amounts stated with all costs thereof
to be charged to Tenant and paid upon written invoice therefor as Additional
Rental.
5.13 LIABILITY INSURANCE. Landlord (with respect to the
Project) and Tenant (with respect to the Leased Premises and Project) shall
each maintain or cause to be maintained a policy or policies of commercial
general liability insurance (including contractual liability coverage) with the
premiums thereon fully paid in advance, issued by and binding upon an insurance
company of good financial standing, authorized to do business in Texas and
having a Best & Company rating of "B+, XIII" or better, such insurance to
afford a minimum protection of not less than One Million Dollars
($1,000,000.00) combined single limit bodily injury and property damage in any
one occurrence. Tenant's contractual liability insurance shall apply, without
limitation, to all of Tenant's indemnity obligations under this Lease.
Tenant's insurance required hereunder shall name Landlord as an additional
insured and shall contain endorsements and provisions stating that Tenant's
insurance is primary to any insurance otherwise carried by Landlord and that
Landlord will receive thirty (30) days' prior written notice of cancellation of
the policy. Tenant shall deliver to Landlord a certificate of insurance
outlining the insurance required herein at least fifteen (15) days prior to the
Commencement Date and fifteen (15) days prior to all renewals thereof. The
expense for Landlord's liability insurance will be an Operating Expense under
Section 2.4(c) of this Lease. Upon request of Tenant, Landlord shall provide
Tenant reasonable evidence that the insurance required to be maintained
hereunder by Landlord is in full force and effect.
5.14 HOLD HARMLESS. Landlord and any mortgagee of Landlord
shall not be liable to Tenant for any damage to person or property caused by
the intentional torts or negligence of Tenant, its agents or employees, and
Tenant agrees to indemnify and hold Landlord harmless from all liability and
claims for any such damage. Tenant shall not be liable to Landlord for any
damage to person or property caused by the intentional torts or negligence of
Landlord, its agents or employees, and Landlord agrees to indemnify and hold
Tenant harmless from all claims for such damage. In the event a claim or
damage is the result of the joint negligence or joint intentional torts of
Tenant, its agents or employees, on the one hand, and Landlord, its agents or
employees, on the other hand, the foregoing indemnities shall apply only to the
portion of the damage attributable to the negligence or intentional tort of the
applicable indemnifying party.
5.15 WAIVER OF SUBROGATION RIGHTS. Anything in this Lease
to the contrary notwithstanding, Landlord and Tenant each hereby waives any and
all rights of recovery, claim, action or cause of action, against the other,
its agents, officers, employees, partners, servants or shareholders for any
loss or damage that may occur to the Leased Premises, or any improvements
thereto or said Building of which the Leased Premises are a part, or any
improvements thereto, or any personal property of such party therein, by reason
of fire, the elements, or any other cause which is required to be insured
against under the terms of standard fire and extended coverage insurance
policies referred to in Section 5.12 hereof, regardless of cause or origin,
including negligence of the other party hereto, its agents, officers,
employees, partners, servants or shareholders and each party shall cause such
insurance policies to contain provisions or endorsements wherein each insurer
waives its rights of recovery against such parties.
-24-
29
5.16 ENTIRE AGREEMENT, REPRESENTATIONS, ETC. This Lease
contains the entire agreement of the parties pertaining to the subject matter
hereof and supersedes all other prior and contemporaneous agreements and
understandings, both oral and written, of the parties in connection therewith.
No other written or oral promises or representations have been made and none
have been relied upon, and none shall be binding. This Lease supersedes and
replaces any previous Lease between the parties, including any renewals or
extensions thereunder. Landlord's agents do not and will not have authority to
(a) make exceptions, changes or amendments to this Lease or factual
representations not expressly contained in this Lease, (b) waive any right,
requirement, or provision of this Lease, or (c) release Tenant from all or part
of this Lease, unless such action is in writing. The parties executing this
Agreement expressly warrant and represent that, before executing this
Agreement, said parties have fully informed themselves of its terms, contents,
conditions, and effects, that in executing this Agreement the parties hereto
have had the benefit of advice of attorneys of their own choosing, and that no
promise or representation of any kind has been made to any parties hereto or
anyone acting for any parties hereto, except as is expressly stated in this
Agreement. The parties executing this Agreement have relied solely and
completely upon their own judgment and the advice of their own attorneys in
entering into this Agreement.
5.17 TIME IS OF THE ESSENCE. Time is of the essence and
all performance due dates, time schedules, and conditions precedent to
exercising a right shall be strictly adhered to without delay except where
otherwise expressly provided.
5.18 BROKERS. Tenant hereby warrants and represents that
it has not dealt with any other brokers or intermediaries entitled to any
compensation in connection with this Lease or Tenant's occupancy of space in
the Leased Premises except for ▇▇▇▇, Page & Associates and for which Landlord
shall be responsible for any commission or fee due them. Each party hereby
agrees to hold the other party, its partners and representatives harmless from
any and all claims, liabilities, costs and expenses (including reasonable
attorneys' fees) arising from any claim for any commissions or other fees by
any other broker or agent acting or purporting to have acted on behalf of such
party.
5.19 NO WARRANTIES. TENANT HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PREMISES WHICH MAY
EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.20 GOVERNING LAW. This Lease shall be construed under
the laws of the State of Texas.
5.21 SUCCESSORS. This Lease shall be binding upon and
inure to the benefit of Landlord, its successors and assigns, and shall be
binding upon and inure to the benefit of Tenant, its successors and, to the
extent assignment may be approved by Landlord or otherwise permitted hereunder,
its assigns.
-25-
30
5.22 NOTICES. All notices, demands, consents and approvals
which may or are required to be given by either party to the other hereunder
shall be in writing and shall be deemed to have been fully given when
personally delivered or when deposited in the United States mail, certified or
registered, postage prepaid and addressed to the party to be notified at the
address for such party specified in this Lease, or to such other place as the
party to be notified may from time to time designate by at least fifteen (15)
days' notice to the notifying party.
5.23 SEVERABILITY. If any term or provision of this Lease,
or the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby. Each provision of
this Lease shall be valid and shall be enforceable to the extent permitted by
law.
5.24 AUTHORITY. (a) Tenant represents to Landlord that
(a) Tenant is a corporation duly formed, validly existing and in good standing
under the laws of the State of Maryland, (b) that the person executing this
Lease on behalf of Tenant was authorized to do so, (c) all consents or
approvals required of third parties (including, but not limited to, its Board
of Directors or partners) for the execution, delivery and performance of this
Lease have been obtained and (d) upon request of Landlord, Tenant will deliver
to Landlord evidence of such person's authority to execute and deliver this
Lease on behalf of Tenant.
(b) Landlord represents to Tenant that (a) Landlord is a
partnership duly formed, validly existing and in good standing under the laws
of the State of Texas, (b) that the person executing this Lease on behalf of
Landlord was authorized to do so, and (c) all consents or approvals required of
third parties for the execution, delivery and performance of this Lease have
been obtained.
5.25 RELOCATION. Landlord shall have the one time option to
relocate the Tenant to alternative space in the Building, which alternative
space shall be of comparable size to or larger than the Leased Premises.
Landlord shall give Tenant not less than ninety (90) days prior written notice
of such relocation, which notice shall include the date on which the Tenant
shall be required to relocate or move and a description of the space to which
Tenant will be relocated. Landlord shall promptly pay all out-of-pocket costs
and expenses of relocating Tenant (and the cost of preparing such comparable
space for occupancy) including the construction of any Tenant leasehold
improvements to make such space comparable to the Leased Premises. However, if
Tenant is relocated prior to occupancy and fitting out the Leased Premises with
tenant improvements, Landlord shall only be required to pay the costs otherwise
agreed to be paid by Landlord under this Lease for construction of tenant
improvements plus costs and expenses incident to changes in the tenant
improvements as a result of such relocation in excess of those which would have
been borne by Tenant if there had been no relocation. In the event of such
relocation, such alternative space shall for all purposes be deemed the Leased
Premises hereunder and this Lease shall continue in full force and effect
without any change in the other terms or conditions hereof.
5.26 RENEWAL OPTION
-26-
31
(a) So long as an Event of Default is not in existence and
subject to the provisions of this Section 5.26, Tenant is hereby granted a one
(1) time option to renew ("Renewal Option") the Initial Term as to all (but not
part) of the Leased Premises for a period of five (5) years (the "Renewal
Term"), such Renewal Term to commence at the expiration of the Initial Term.
Tenant must furnish Landlord with written notice of its to exercise the Renewal
Option twelve (12) months prior to the expiration of the Initial Term (the
"Renewal Intent Notice"). If Tenant timely delivers the Renewal Intent Notice
to Landlord, Landlord shall, no later than fifteen (15) days after Landlord's
receipt thereof, deliver to Tenant written notice (the "Rate Notice") of the
Market Base Rental Rate (defined below) and the Basic Parking Charge for the
Parking Permits (each as defined in Exhibit C) (if applicable pursuant to
Section 5.26 (b) (iii) below).
If Tenant objects to Landlord's determination of the Market
Base Rental Rate and the Basic Parking Charge, Landlord and Tenant shall work
diligently to attempt to resolve their differences as to the Market Base Rental
Rate within forty-five (45) days after Tenant's receipt of the Rate Notice (the
"Renewal Election Period"). If Landlord and Tenant agree in writing as to the
Market Base Rental Rate and the Basic Parking Charge prior to the expiration of
the Renewal Election Period, the Market Base Rental Rate so agreed to by
Landlord and Tenant shall be applicable if Tenant, in its sole discretion,
elects to exercise the Renewal Option prior to the expiration of the Renewal
Election Period. If Tenant timely furnishes the Renewal Intent Notice to
Landlord and Tenant, in its sole discretion, exercises the Renewal Option prior
to the expiration of the Renewal Election Period and prior to Landlord and
Tenant agreeing in writing as to the Market Base Rental Rate for the Renewal
Term, Tenant's exercise of the Renewal Option shall constitute Tenant's
irrevocable election to exercise the Renewal Option and irrevocable agreement
to Landlord's determination of the Market Base Rental Rate as contained in the
Rate Notice. Tenant must notify Landlord in writing (the "Election Notice")
prior to the expiration of the Renewal Election Period if Tenant elects to
exercise the Renewal Option. If Tenant timely delivers the Renewal Intent
Notice and the Election Notice to Landlord, but at any time prior to the
commencement of the Renewal Term an Event of Default occurs Landlord, at its
sole option during the continuance of such Event of Default, may terminate
Tenant's election to exercise the Renewal Option and the Renewal Option shall
expire and thereafter not be exercisable by Tenant. If Tenant fails to timely
exercise the Renewal Option by failing to timely deliver the Renewal Intent
Notice or the Election Notice as provided above, the Renewal Option shall
automatically terminate, and Tenant shall have waived forever its right to
renew and extend the Initial Term.
(b) The renewal of this Lease pursuant to the exercise of
the Renewal Option shall be upon the same terms and conditions of this Lease,
except:
(i) The Base Rental Rate for the Leased Premises
during the Renewal Term shall be the sum of (A) the Base Rental Rate for the
Leased Premises in effect for the year immediately preceding the commencement
of the Renewal Term, less the Tenant's Proportionate Share of the Base Year's
Basic Costs (on a per square foot of Net Rentable Area basis) determined in
accordance with the provisions of Section 2.4 (a); plus (B) the increase in the
Market Base Rental Rate over the rate in (A); plus, (C) the Expense Stop
(defined below) for the Renewal Period (as determined by clause (ii) below);
-27-
32
provided, however, in the event the Market Base Rental Rate is less than or
equal to the rate in (A), the Base Rental Rate for the Leased Premises during
the Renewal Term shall be the sum of the amounts in (A) and (C). Additionally,
Tenant shall be obligated to pay as part of Base Rental a management fee of
three percent (3%) of Tenant's Base Rental and Additional Rental as provided in
Section 2.3. Tenant shall be obligated to pay the Additional Rental pursuant
to Section 2.4 and 2.5 of this Lease (taking into account the adjustments
pursuant to clause (ii) below).
(ii) For purposes of determining the Additional
Rental payable by Tenant after the expiration of the calendar year in which the
Renewal Term occurs, Section 2.4 (a) of this Lease shall be amended to
recognize that during the Renewal Term Tenant shall pay as Additional Rental
Tenant's Proportionate Share of all Basic Costs in excess of the Expense Stop
(defined below). As used in this clause (ii), "Expense Stop" shall mean
Landlord's good faith determination in accordance with generally accepted
accounting principles of the Basic Costs (on a per square foot of Net Rentable
basis) for the calendar year in which the Renewal Term commences.
(iii) Tenant shall lease the Parking Permits
determined in accordance with Exhibit C of this Lease at the commencement of
the Renewal Term, and Tenant shall pay Landlord, as the Basic Parking Charge, a
monthly amount equal to the rates then being charged by Landlord or the
operator of the Garage for parking in such location (taking into account
whether such parking spaces are for assigned or unassigned parking spaces) for
monthly contract parking in the Garage multiplied by the number of Parking
Permits leased by Tenant pursuant to this Lease, which Basic Parking Charge
shall be payable as provided in Exhibit C hereto.
(iv) Tenant shall have no option to renew this
Lease beyond the Renewal Term; and
(v) Subject to the terms of the Lease, the
leasehold improvements will be provided in their then-existing condition (on an
"as is" basis) at the time the Renewal Term commences and Tenant shall not be
entitled to any construction, buildout or other allowances with respect to the
Leased Premises during the Renewal Term.
(c) As used in this Lease, the term "Market Base Rental
Rate" shall mean the market annual net rental rate (exclusive of building or
project expense pass through additions, whether characterized as such or not,
and exclusive of any portion of "base rentals" attributable to building or
project expenses or to an "expense stop") per square foot of Net Rentable Area
of the applicable space and for the time period as to which such rate is being
determined, that a willing tenant would pay and a willing landlord would
accept, in arm's length bona fide negotiations (taking into consideration all
relevant factors including, without limitation, the following factors: rent
being charged in other first-class office buildings located within the
Greenspoint Town Center, for leases then being entered into for comparable
space to the Leased Premises in the comparable elevator bank for which the
Market Base Rental Rate is being determined; location, quality, amenities, age
and reputation of the buildings in which the space being compared is located;
use and size of the space under comparison; location and/or floor level of the
subject
-28-
33
space and any comparison space within their respective buildings, including
view, elevator lobby exposure, etc.; definition of "net rentable area"
applicable to the spaces; distinction (if any) between "gross" and "net" rental
rates and rental rates and type, base year or dollar amount for escalation
purposes (both operating costs and real estate taxes) if the comparison is on a
"gross" lease basis; any other adjustments (including through use of an index)
to base rental; extent of services provided or to be provided; extent and
condition of leasehold improvements in the subject space and in any comparison
space; cost to tenant of relocating from the subject space to any alternative
space or savings from not moving to alternative space; abatements pertaining to
the subject space and to any comparison space (including with respect to base
rental, operating expenses and/or real estate taxes); inclusion of parking
charges in rental, if applicable; lease takeovers/assumptions by the landlord
of the comparison space, if applicable; moving allowances granted, if any;
relocation allowances granted, if any; club memberships granted, if any;
construction, refurbishment and repainting allowances granted, if any; any
other concessions or inducements; term or length of lease of subject space and
of any comparison space; overall creditworthiness of Tenant and tenants in
comparable space; the time the particular rental rate under consideration was
agreed upon and became or is to become effective; and payment of a leasing
commission, fees, bonuses or other compensation whether to Tenant's
representatives or to Landlord, or to any person or entity affiliated with
Tenant or Landlord, or otherwise). Landlord and Tenant agree that bona fide
written offers to lease comparable space located in the Building or the Project
from third parties may be used as a factor in determining the Market Base
Rental Rate.
(d) Tenant may not assign this Renewal Option and no
sublessee or assignee of Tenant may exercise this Renewal Option other than an
assignee which is a Permitted Affiliate (as defined in Section 4.5).
-29-
34
IN WITNESS WHEREOF, the parties have executed this Lease as of
the date aforesaid.
LANDLORD: GREENSPOINT PLAZA LIMITED PARTNERSHIP
By: Houston Town Center LLC,
a Texas limited liability company, its general partner
By: Hines Acquisitions No. 1 Limited Partnership,
a Texas limited partnership, its manager
By: ▇▇▇▇▇ Interests Limited Partnership,
a Delaware limited partnership, its general partner
By: ▇▇▇▇▇ Holdings, Inc.,
a Texas close corporation, its general partner
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice President
TENANT: ICARUS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 6 Feb 97
--------------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------------
Title: President
--------------------------------------------------------
-30-
35
EXHIBIT A
Floor Plan of Leased Premises
36
EXHIBIT B
TENANT IMPROVEMENT WORK SCHEDULE
1. Preparation of Tenant Plans.
(a) Landlord shall provide and submit to Tenant for its
approval the Tenant Plans (hereinafter defined) necessary to price and
construct the Building Standard Improvements and any work in addition to
Building Standard Improvements ("Tenant Extra Improvements") desired by Tenant.
Building Standard Improvements and Tenant Extra Improvements are herein
referred to as "Tenant Improvements."
(b) "Tenant Plans" means complete sets (at least three
prints and one reproducible copy) of architectural, structural, mechanical,
electrical and plumbing working drawings for any and all Tenant Improvements
(which shall include such written instructions or specifications as may be
necessary to secure a building permit from the City of Houston and shall show
the full detailed scope of all Tenant Improvements). The Tenant Plans shall be
consistent with and shall conform to the Building plans and specifications and
all applicable laws, regulations, rules, ordinances and codes, which shall be
the obligation of Landlord. The structural, mechanical, electrical and
plumbing portions of the Tenant Plans shall be prepared (at Landlord's expense)
by Landlord's engineers.
(c) The cost of preparing the Tenant Plans, including any
changes thereto, shall be paid by Tenant; provided that Landlord shall
contribute thereto $1.50 per square foot of Net Rentable Area of the Leased
Premises toward the cost of Tenant Plans.
(d) The Tenant Plans must be completed on or prior to
February 3, 1997. Accordingly, Landlord shall submit the same for Tenant's
approval on or prior to February 3, 1997 and Tenant agrees to review the same
and respond to Landlord within five (5) days after the day of receipt thereof.
2. Pricing of Tenant Plans.
(a) Landlord shall promptly submit the Tenant Plans which
have been approved by Tenant to the Landlord's contractor ("Landlord's
Contractor") for pricing of the Tenant Improvements. Promptly following the
receipt by Landlord of such pricing by Landlord's Contractor, Landlord shall
submit to Tenant for its approval a pricing letter (the "Pricing Letter"),
including a detailed cost breakdown, based on the proposal of Landlord's
Contractor.
-1-
37
(b) Tenant shall have two (2) days after the date of
submission within which to approve or disapprove the Pricing Letter. The
Pricing Letter shall be deemed approved unless Tenant gives notice of
disapproval within such two (2) day period. If the Pricing Letter is
disapproved, Tenant shall provide, with its notice of disapproval, such
information as may be required to revise the Tenant Plans for Tenant
Improvements to reduce the cost of performing the work of Tenant Extra
Improvements. The additional information shall be submitted to Landlord's
Contractor for a cost estimate, with Tenant again having a right to approve or
disapprove the same pursuant to the foregoing procedures. The process shall
continue for a reasonable time until revised Tenant Plans have been finalized
and completed in conjunction with approval of a Pricing Letter acceptable to
Tenant.
(c) The Pricing Letter must be approved and executed by
Tenant on or prior to February 10, 1997. If, however, such approval and
execution is not accomplished on or prior to February 10, 1997, Landlord shall
have the right, at its option, to terminate this Lease (without waiving any
other rights Landlord may have).
3. Construction of Tenant Improvements.
(a) After receipt and approval of Tenant's Plans and the
Pricing Letter, Landlord shall administer the construction of Tenant
Improvements in accordance with the approved construction documents and
proposal of Landlord's Contractor; provided, however, that no Tenant
Improvements shall be installed which do not conform to Building plans and
specifications or to any applicable regulations, laws, ordinances, codes and
rules. Such conformity shall be the obligation of Tenant.
(b) Landlord shall bear the cost of the construction of
Tenant Improvements. If Tenant accepts the Pricing Letter, Landlord shall
contribute $16.90 per square foot of Net Rentable Area to Tenant Improvements.
Such allowance shall be credited against amounts due Landlord under paragraph
3(b) of this Exhibit B for Tenant Improvements as the work progresses. The
credit given for Tenant Improvements covered by each monthly draw shall equal a
fraction thereof, the numerator of which is the total allowance provided by
Landlord and the denominator of which is the total cost of all Tenant
Improvements. All costs incurred in construction of Tenant Improvements shall
be increased by a charge, to be paid by Tenant, of ten percent (10%) to
reimburse Landlord for construction administration and coordination. Tenant
shall pay to Landlord all amounts payable by Tenant pursuant to this Exhibit B
within ten (10) days after completion of the Tenant Improvements.
(c) All Tenant Improvements shall be constructed by
Landlord's Contractor with the exception of telephone equipment and wiring
which may be installed by Tenant subject to the limitations contained herein.
All such equipment furnished and installed by Tenant shall be installed in a
manner which conforms with Landlord's Contractor's schedule, and the work or
installation shall be handled in such a manner as not to materially interfere
with or delay the work of Landlord's Contractor to any extent unsatisfactory to
Landlord. No portion of the work to be performed by Landlord's Contractor
shall be dependent upon completion of any work or construction or installation
to be performed by Tenant.
-2-
38
(d) It is agreed that Tenant may authorize changes in the
Tenant Improvements, provided that any changes must meet the criteria set forth
in paragraph l(b) above. Tenant shall pay any net increase in cost and/or
credited with any savings (such credit be applied to Base Rental next becoming
due) which results from such changes (including the cost of all modifications
to Tenant Improvements which have theretofore been initiated or constructed and
any modifications required to the base building), plus ten percent (10%)
thereof as an administrative cost recovery fee.
4. Substantial Completion and Commencement Date.
(a) "Substantial Completion" of the Leased Premises shall
mean substantial completion of the Tenant Improvements in accordance with the
Tenant Plans, with a punch-list of uncompleted items which do not interfere in
any material respect with the use or enjoyment of the Leased Premises and which
permits Landlord to obtain any and all occupancy permits or authorizations
necessary to Tenant's use and occupancy of the Leased Premises.
(b) Notwithstanding Section 2.1(a) of this Lease, the
Commencement Date of the Term of this Lease shall be the earlier of (i) the
date of occupancy of the Leased Premises by Tenant, (ii) the date of
Substantial Completion of the Leased Premises (but in no event earlier than
April 1, 1997), or (iii) the date Substantial Completion would have occurred
but for Tenant Delay. If such a date is not that established as the
Commencement Date in Section 2.1 of this Lease, such date shall be revised
accordingly. In addition, if the Commencement Date is revised, in no event
shall the Lease expire later than April 30, 2002.
(c) "Tenant Delay", as used herein, means delays in
Substantial Completion of the Leased Premises to the extent resulting from (i)
Tenant's failure to meet the dates established in paragraphs 1 and 2 for
submission and approval of Tenant Plans and the Pricing Letter, (ii) High-risk
Items, as defined below, and (iii) any other delays caused by Tenant, its
architect, engineers, consultants, agents, contractors or subcontractors, in
completing the Tenant Improvements, including delays caused by changes
requested by Tenant. "High-risk Items" means Tenant Extra Improvements which
Landlord acting in good faith reasonably believes have a probability of not
being completed by the originally scheduled Commencement Date (due to limited
supplies or suppliers, length of time to be manufactured, delivered or
installed or otherwise and which have been identified as such with the
agreement of Tenant on the Tenant Plans). Landlord shall designate any
High-risk Items at or prior to the time of approval of the Pricing Letter (or
any revisions thereof on which the same appear).
(d) LANDLORD SHALL MAKE NO, AND DOES NOT MAKE ANY,
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TENANT IMPROVEMENTS.
LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY OF THE WARRANTIES OR COVENANTS FROM
ANY CONTRACTOR TO TENANT, BUT LANDLORD WILL ASSIST TENANT IN ENFORCING SUCH
WARRANTIES AND COVENANTS FROM CONTRACTORS AT TENANT'S COST AND EXPENSE. ALL
IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE,
-3-
39
ARE EXPRESSLY NEGATED AND WAIVED. WITHOUT LIMITING THE FOREGOING, LANDLORD
SHALL NOT BE RESPONSIBLE FOR FAILURE OF THE TENANT IMPROVEMENTS TO BE COMPLETED
IN A TIMELY MANNER, TO BE COMPLETED IN ACCORDANCE WITH THE TENANT PLANS, OR
OTHERWISE.
(e) LANDLORD WILL NOT BE RESPONSIBLE FOR, AND WILL NOT
HAVE CONTROL OR CHARGE OF, CONSTRUCTION MEANS, METHODS, TECHNIQUES, SEQUENCES
OR PROCEDURES, OR FOR SAFETY PRECAUTIONS AND PROGRAMS IN CONNECTION WITH SUCH
TENANT IMPROVEMENTS, AND IT WILL NOT BE RESPONSIBLE FOR ANY CONTRACTOR'S
FAILURE TO CARRY OUT SUCH TENANT IMPROVEMENTS. LANDLORD WILL NOT BE
RESPONSIBLE FOR, OR HAVE CONTROL OR CHARGE OVER, THE ACTS OR OMISSIONS OF
TENANT'S CONTRACTORS, OR THEIR AGENTS OR EMPLOYEES. LANDLORD IS ACTING SOLELY
AS A CONSULTANT TO TENANT WITH RESPECT TO ADMINISTERING SUCH WORK, BUT IS NOT
ACTING AS A CONTRACTOR, AND IS NOT GUARANTEEING THE PERFORMANCE OF SUCH WORK.
-4-
40
EXHIBIT C
FOUR GREENSPOINT PLAZA
(THE "BUILDING")
GREENSPOINT PLAZA LIMITED PARTNERSHIP
(THE "LANDLORD")
AND
ICARUS CORPORATION
(THE "TENANT")
Tenant shall at all times during the Term lease between six
(6) and eleven (11) permits to park vehicles in the following garage (the
"Garage") which serves the Building: Four Greenspoint Plaza. No specific
spaces in the Garage are to be assigned to Tenant, but Landlord will issue to
Tenant the aforesaid number of parking permits, each of which will authorize
parking in the Garage of a vehicle on an unassigned basis. Landlord may
designate the area within which each such vehicle may be parked, and Landlord
may change such designations from time to time. Landlord may make, modify and
enforce reasonable rules and regulations relating to the parking of vehicles in
the Garage, and Tenant will abide by such rules and regulations. From time to
time, Landlord may, without notice to Tenant, open visitor parking into areas
of the Garage designated for Tenant's parking spaces.
As the Basic Parking Charge, Tenant covenants and agrees to
pay Landlord during the Term, as Additional Rental hereunder, the sum of $40.00
per month, plus applicable sales tax thereon, for each of the parking permits
to be issued by Landlord as herein provided, such sum to be payable monthly in
advance on the first day of each and every calendar month during the Term, and
a pro rata portion of such sum shall be payable for any partial calendar month
during the Term commences on a date other than the first day of a calendar
month. Tenant's obligation to pay the Parking Charge, and applicable sales tax
thereon, shall be considered an obligation to pay rent for all purposes
hereunder and shall be secured in like manner as is Tenant's obligation to pay
rent under the Lease. Default in payment of any amounts due hereunder or
failure by Tenant to comply with the rules and regulations promulgated by
Landlord or the operator of the Garage shall be deemed a default under the
Lease.
41
EXHIBIT D
BUILDING RULES AND REGULATIONS
1. Sidewalks, doorways, skyways, vestibules, halls, stairways and other
similar areas shall not be obstructed by tenants or used by any tenant
for any purpose other than ingress and egress to and from the leased
premises and for going from one part of the building to another.
2. Plumbing fixtures and appliances shall be used only for the purpose
for which designated, and no sweeping, rubbish, rags, or other
unsuitable material including toxic or flammable products shall be
thrown or placed therein. All water lines installed for above
building standard use such as coffee bars, ice makers, water
filtration units etc. must be made of copper piping with compression
type fittings only. Damage resulting from any such fixtures or
appliances from misuse by a tenant shall be paid by him, and Landlord
shall not in any case be responsible therefore.
3. No sign, advertisements or notices shall be painted or affixed on or
to any windows or doors or other parts of the building visible from
the exterior or any common area or public areas of the building. No
part of the building may be defaced by tenants.
4. Landlord will provide and maintain an alphabetical directory board for
all tenants of the building, in the first floor main lobby of the
building. The size, design and location is subject to Landlord's
review and consent, and no other directory shall be allowed.
5. No tenant shall place any additional lock or locks on any door in its
leased area without Landlord's written consent, not to be
unreasonably withheld, delayed, denied or conditioned. Keys to the
locks on the doors in each tenant's leased area shall be furnished to
each tenant per the lease agreement. Additional keys can only be
obtained through the ▇▇▇▇▇ Interests Limited Partnership Property
Management Office.
6. All tenants will refer all contractors, contractors' representatives
and installation technicians tendering any service to them to Landlord
for Landlord's supervision, approval and control before the
performance of any contractor services. This provision shall apply to
all work performed in the building, including, but not limited to,
installation of telephones, telegraph equipment, electrical devices
and attachments, and any and all installations of every nature
affecting floors, walls, woodwork, trim, windows, ceilings, equipment
and any other physical portion of the building.
7. After initial occupancy, movement in or out of the building of
furniture or office equipment, or dispatch or receipt of tenants of
any bulky material, merchandise or material which requires use of
elevators shall be restricted to the use of freight elevators only.
Absolutely no carts or dollies
-1-
42
are allowed through the main entrances or on passenger elevators. All
non-hand carried items must be delivered via the appropriate loading
dock and freight elevator.
Deliveries requiring multiple hoists, such as the movement of
quantities of furniture or office equipment shall be under the
supervision of the Landlord and in the manner agreed between the
tenant and Landlord by prearrangement before performance. Such
prearrangement initiated by a tenant will include after hours
scheduling by Landlord, and subject to his reasonable decision and
control, as to the exact time, method, and routing of movement and as
to limitations for safety or other concern which may prohibit any
article, equipment or any other item from being brought into the
building. The tenants are to assume all risks as to the damage to
articles moved and injury to persons or public engaged or not engaged
in such movement, including equipment, property and personnel of
Landlord if damaged or injured as a result of an act in connection
with carrying out this service for a tenant from time of entering
property to completion of work; and Landlord shall not be liable for
an act of any persons engaged in, or any damage or loss of any of said
property or persons resulting from any act in connection with such
service performed for a tenant.
8. Landlord shall prescribe the weight and position of safes and other
heavy equipment, which shall in all cases, to distribute weight, stand
on supporting devices reasonably approved by Landlord. All damages
done to the building by taking in or putting out any property of a
tenant, or done by a tenant's property while in the building, shall be
repaired at the expense of such tenant.
9. A tenant shall notify the building manager when safes or other heavy
equipment are to be taken in or out of the building, and the moving
shall be done under the supervision of the building manager, after
written permit from the Landlord reasonably and timely issued.
Persons employed to move such property must be acceptable to Landlord
in Landlord's reasonable discretion.
10. Corridor doors, when not in use, shall be kept closed.
11. Each tenant shall cooperate with Landlord's employees in keeping its
leased area neat and clean. No tenant shall employ any person for the
purpose of cleaning other than the building's cleaning and maintenance
personnel without prior approval by Landlord. Landlord shall be in no
way responsible to the tenants, their agents, employees or invitees
for any loss of property from the Premises or public areas or for any
damages to any property therein from any cause whatsoever, other than
due to the gross negligence or willful misconduct of Landlord, its
agents and/or employees.
12. To insure orderly operation of the building, no ice, mineral or water,
towels, newspapers, etc. shall be delivered to any leased area except
by persons appointed or approved by the Landlord in writing.
13. Should a tenant require a telegraphic, telephonic, annunciator or
other communication service, Landlord will direct the electricians
where and how wires are to be introduced and placed and
-2-
43
none shall be introduced or placed except as Landlord shall reasonably
approve. Electric current shall not be used for power or heating
without Landlord's prior written permission.
14. Tenants shall not make or permit any improper noises in the building
or otherwise interfere in any way with other tenants or persons having
business with them.
15. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways. No birds or animals (except seeing eye dogs)
shall be brought into or kept in, on or about any tenant's area.
16. No machinery of any kind other than normal office equipment shall be
operated by any tenant on its leased area without the prior written
consent of Landlord which consent shall not be unreasonably withheld,
delayed, denied or conditioned, nor shall any tenant use, or keep in
the building, any flammable or explosive fluid or substance, except in
accordance with local fire codes and procedures approved by Landlord.
17. No portion of any tenant's lease area shall at any time be used or
occupied as sleeping or lodging quarters.
18. Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased area or public areas regardless
of whether such loss occurs when area is locked against entry or not
unless due to the gross negligence or willful misconduct of Landlord,
its agents and/or employees.
19. Tenant will not tamper with or attempt to adjust temperature control
thermostats in the Premises.
20. 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.
21. Landlord reserves the right to rescind any of these rules and
regulations and to make such other and further reasonable rules and
regulations as in its judgment shall, from time to time, be needed for
the safety, protection, care and cleanliness of the building, the
operation thereof, the preservation of good order therein and the
protection and comfort of the tenants and their agents, employees, and
invitees, which rules and regulations, when made and written notice
thereof is given to a tenant, shall be binding upon it in like manner
as if originally herein prescribed.
-3-
44
EXHIBIT E
BUILDING STANDARD IMPROVEMENTS
Building Standard Improvements shall consist of the following,
in the quantities set forth below.
(1) Heating, Ventilation, Air Conditioning.
Building Standard air-conditioning in a Building
Standard configuration throughout the Leased Premises.
(2) Partitions.
One (1) linear foot of Building Standard partitioning
per twelve (12) square feet of Net Rentable Area.
(3) Ceiling.
Building Standard ceiling throughout the Leased
Premises.
(4) Doors, Door Frames and Hardware.
One (1) Building Standard door, door frame and latch
set per three-hundred (300) square feet of Net Rentable Area, with a closer and
lockset on corridor doors required by code.
(5) Lighting Fixtures.
Building Standard light fixtures as required, not to
exceed one per eighty (80) square foot of Net Rentable Area.
(6) Light Switches.
One (1) single pole, rocker type light switch with
cover plate mounted at standard height in Building Standard partition for each
three hundred (300) square feet of Net Rentable Area.
-1-
45
(7) Electrical Outlets.
One (1) duplex convenience outlet with cover plate
mounted in Building Standard partition at standard height for each one hundred
twenty (120) square feet of Net Rentable Area, plus one (1) dedicated circuit
per 2,500 square feet of Net Rentable Area.
(8) Telephone/Computer Outlets.
One (1) telephone/computer outlet box with cover
plate and pull string through the Building Standard partition to the ceiling
plenum above, mounted at standard height for each two hundred ten (210) square
feet of Net Rentable Area.
(9) Floor Covering.
Building Standard carpet or vinyl composition tile
throughout the Leased Premises.
-2-
46
OPTIONAL ITEMS FOR BUILDING STANDARD IMPROVEMENTS
Fire Sprinkler Heads.
Flush ceiling-mounted fire sprinkler heads [ALTERNATE: with
white cover plates] in quantities and in locations necessary to meet light
hazard occupancy design criteria for the partition layout shown on the Tenant
Plans.
Heating, Ventilation, Air Conditioning.
Heating, ventilation and air conditioning will be supplied
from central air handling units located on each floor. The conditioned air
will be distributed by ductwork to constant volume fan-powered terminal units
which are connected to light fixture diffusers and perimeter air slots.
Lighting Fixtures.
One (1) 2' X 4' recessed fluorescent low-glare lighting
fixture per one hundred (100) square feet of Net Rentable Area. Common Areas
shall have lighting selected by landlord.
Partitions.
One (1) linear foot of ceiling height partition per twelve
(12) square feet of Net Rentable Area. Partitions will be 5/8" gypsum board on
2-1/2" metal studs erected 24" on center, finished with two coats of eggshell
latex enamel paint. All partitions will receive 2 1/2" straight vinyl base.
Doors, Door Frames and Hardware.
One (1) full height, solid core, stained oak [ALTERNATE: teak,
mahogany; walnut] veneered door in an extruded aluminum frame with satin
[ALTERNATE: polished] finish chromium lever handle latch set per three hundred
(300) square feet of Net Rentable Area.
Ceiling.
A random-fissured, mineral fiber, 2' X 2' lay-in tile
supported by an exposed "fine line" grid throughout the Leased Premises.
-1-
47
EXHIBIT F
AIR CONDITIONING AND HEATING SERVICES
Subject to the provisions of Section 3.1(a), Landlord will furnish
Building standard air conditioning and heating between 8:00 A.M. and 6:00 P.M.
from Monday through Friday and, if requested, between 8:00 A.M. and 1:00 P.M.
Saturdays, all exclusive of Holidays (as defined below). Upon request of
Tenant, made in accordance with the rules and regulations for the Building,
Landlord will furnish air conditioning and heating at other times (that is, at
times other than the times specified above) in which event Tenant shall
reimburse Landlord for the cost of furnishing such services. Landlord agrees
to maintain (subject to events of force majeure) the condition of the Leased
Premises during the above-described hours between 72 and 76 at less than 65%
relative humidity.
The following dates shall constitute "HOLIDAYS" as said term is
used in this Lease:
1. New Year's Day
2. Good Friday
3. Memorial Day
4. Independence Day
5. Labor Day
6. Thanksgiving Day
7. Friday following Thanksgiving Day
8. Christmas Day
9. Any other holiday recognized and taken by tenants
occupying at least one-half ( 1/2) of the office space of
the Building.
If a different day shall be observed in the case of any Holiday
set forth in 1 through 9 above other than the day set forth above, than that
day which constitutes the day observed by the national banks in Houston, Texas
on account of such Holiday shall constitute the Holiday under this Lease.
Notwithstanding any other provisions herein to the contrary,
Landlord and Tenant agree that Tenant shall reimburse Landlord at the rate of
Twenty-Five And No/100 Dollars ($25.00) per hour per air handler unit when air
conditioning or heating is furnished at times other than those stated above.
However, such rate is based upon the Kilowatt Hour Rate (as hereinafter
defined) for electricity as of the Commencement Date (the "BASE RATE") and if
and when the Kilowatt Hour Rate increases over the Base Rate, the aforesaid
rate of Twenty-Five and No/100 Dollars ($25.00) per hour per air handler shall
automatically increase proportionately. The "KILOWATT HOUR RATE" shall mean
the actual average cost per kilowatt hour charged by the public utilities
providing electricity to the Building, or, if said public utilities shall cease
charging for electricity on the basis of a kilowatt
-1-
48
hour, then the Kilowatt Hour Rate shall mean the actual average cost per unit
of measurement substituted therefore by said public utilities. The Base Rate
is hereby stipulated to be $.0705 per kilowatt hour based on the cost of
electrical service in the Building as of the Commencement Date.
-2-
49
SCHEDULE I
Floor Plan - Fifth Floor
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇