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EXHIBIT 10.14
TWO BRIDGEPOINT LEASE AGREEMENT
By and Between
INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA
("Landlord")
and
▇▇▇▇▇▇▇ OIL & GAS, L.P.
("Tenant")
DATED: SEPTEMBER 20, 1996
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TWO BRIDGEPOINT LEASE AGREEMENT
This Lease is entered into as of September ___, 1996, between
INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA, a Washington corporation
("Landlord"), whose address for purposes of notice hereunder is ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇ OIL & GAS,
L.P., a Delaware limited partnership ("Tenant"), whose address prior to the
Commencement Date (defined in Section 2.01 hereof) is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and whose address after the Commencement Date shall
be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ , ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇.
W I T N E S S E T H:
ARTICLE 1
1.01 PREMISES. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, for the rent and subject to the provisions of this Lease,
the space (the "Premises") reflected on the floor plan(s) attached as Exhibit
"A" hereto, consisting of the entire fifth floor and part of the fourth floor
of the building (the "Building") known as Two Bridgepoint, located at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ (such Building, and
ground-level open areas and walkways appurtenant to the Building, any parking
areas and garages serving the Building, any other structure or improvement
utilized in the operation or maintenance of the Building, and the land (the
"Land") on which all such improvements are located, said Land being more
particularly described on Exhibit "B" attached hereto and made a part hereof
for all purposes, and any present or future associated underground or elevated
pedestrian tunnels or walkways being hereinafter collectively referred to as
the "Project"). Landlord and Tenant hereby agree that the Premises contain
approximately 23,619 square feet of rentable area and the Building contains
approximately 92,459 square feet of rentable area.
ARTICLE 2
2.01 TERM. Subject to the other provisions hereof, and any
exhibits hereto, this Lease shall be for a term of approximately ten (10) years
commencing on the Commencement Date (defined in Section 2.02 hereof) and
expiring on June 30, 2007 (the "Expiration Date"). Such term, as it may be
modified, is herein called the "Term." A "Lease Year" shall be the twelve
month period beginning on July 1 of each calendar year and ending on June 30 of
the following calendar year.
2.02 COMMENCEMENT. As used herein, "Commencement Date" means the
earlier to occur of: (a) July 1, 1997, or if later, the date which is ten (10)
business days after the Premises (including the Tenant Improvements described
on Exhibit "C") are substantially completed (as hereinafter defined), or would
have been substantially completed but for Tenant Delays (as defined in Exhibit
"C"), and Landlord has notified Tenant of such completion, or (b) the date
Tenant begins the occupancy of all or any part of the Premises in a reasonably
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normal manner for the conduct of Tenant's business. The parties anticipate the
Premises will be substantially complete on or about June 20, 1997.
"Substantial completion" shall mean that Landlord has received a temporary or
permanent certificate of occupancy from the City of Austin permitting Tenant's
occupancy of the Premises and that the Premises (and parking and other
improvements in the Project reasonably necessary to Tenant's use and enjoyment
of the Premises) are sufficiently complete to allow Tenant's use and occupancy
of the Premises, except for any work upon which Landlord and Tenant shall have
agreed in writing ("punch list" items), the performance of which will not,
after Tenant commences occupancy of the Premises, significantly interrupt or
interfere with Tenant's use thereof. Landlord agrees to complete any punch
list items remaining on the Commencement Date within thirty (30) days
thereafter. Within five (5) days after the Commencement Date or at any time
thereafter upon the request of Landlord, Tenant shall execute and deliver to
Landlord a declaration (in the form of Exhibit "D" hereto) specifying, among
other things, the date upon which the same occurred.
Notwithstanding anything contained in this Lease to the contrary, in
the event the Premises are not substantially completed by August 15, 1997,
Tenant shall have the option to cancel and terminate this Lease, and in such
event, Tenant shall have no further obligations to Landlord.
2.03 RENEWAL OPTIONS. Landlord hereby gives and grants to Tenant
one (1) option to renew this Lease for a period of five (5) years on the terms
and conditions set forth in Exhibit "E". The Renewal Term shall commence on
the expiration of the Term.
2.04 RIGHT OF FIRST REFUSAL. Landlord hereby grants Tenant a right
of first refusal with respect to all remaining space on the fourth floor of Two
Bridgepoint as set forth in "Exhibit "F". This right of first refusal is in
effect only during the Primary Term and terminates on the expiration of the
Primary Term. Further, as more particularly provided in Exhibit "F", the right
of first refusal will not obligate Landlord to offer additional space on the
fourth floor if (1) Landlord delivers the Occupancy Notice, as defined in
Exhibit "F" or (2) delivers the Affiliate Lease Notice, as defined in Exhibit
"F", however, the right of first refusal will be reinstated automatically with
respect to all or any portion of the Refusal Space later released by Landlord
or Landlord's Affiliate, as applicable, during the Primary Term.
2.05 EXPANSION OPTION. In the event that Landlord (i) fails to
deliver the Occupancy Notice or the Affiliate Lease Notice to Tenant as
required in Exhibit "F" or (ii) delivers the Occupancy Notice or the Affiliate
Lease Notice to Tenant but Landlord or Landlord's Affiliate does not occupy at
least 40,000 rentable square feet of space in the Building , then Landlord
hereby gives and grants to Tenant an expansion option ("Expansion Option") on
the terms and conditions set forth in Exhibit "G". In the event that Landlord
delivers the Occupancy Notice or the Affiliate Lease Notice to Tenant as
required in Exhibit "F" and Landlord or Landlord's Affiliate does occupy at
least 40,000 rentable square feet of space in the Building, then Landlord
hereby gives and grants to Tenant a limited expansion option ("Limited
Expansion Option") on the terms and conditions set forth in Exhibit "G".
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2.06 CANCELLATION OPTION. Notwithstanding the foregoing, Tenant
shall have the right to cancel and terminate this Lease as of July 1, 2002, by
giving Landlord written notice of such election no later than July 1, 2001;
provided, however, in order for Tenant to cancel and terminate this Lease,
Tenant must pay, prior to July 1, 2002, liquidated damages to Landlord equal to
the unamortized Tenant Improvement Allowance (as defined in Exhibit "C") used
by Tenant, any unamortized Additional Tenant Improvement Allowance (also as
defined in Exhibit "C") used by Tenant and the unamortized cost of leasing
commissions incurred by Landlord in connection with this Lease.
ARTICLE 3
3.01 BASE RENT. Tenant, in consideration for this Lease, agrees to
pay to Landlord a base rental ("Base Rent") of $23.00 per year for each square
foot of rentable area agreed by Landlord and Tenant to be within the Premises
for Lease Years one (1) through five (5) and $24.00 per year for each square
foot of rentable area agreed by Landlord and Tenant to be within the Premises
for Lease Years six (6) through ten (10). The Base Rent shall be payable in
equal monthly installments, the amount of which shall be determined by dividing
the total rent for each respective Lease Year by twelve (12), and payable at
Landlord's address herein provided in legal tender of the United States of
America, without notice, demand, counterclaim, set-off or abatement (except as
expressly provided in this Lease), in advance on the first day of each calendar
month throughout the Term, except that the first such monthly installment is
due upon the date of execution of this Lease by Tenant. Notwithstanding the
foregoing, if the Commencement Date is a date other than the first day of a
calendar month, then the rent for the Base Rent for the first month of this
Lease shall be a sum equal to the Base Rent specified for the first full
calendar month as herein provided, times a fraction, the numerator of which
equals the number of days from the Commencement Date to the end of the calendar
month during which the Commencement Date falls and the denominator of which
equals the number of days in the same calendar month.
3.02 TENANT'S PERCENTAGE SHARE OF OPERATING EXPENSES. In addition
to the Base Rent, Tenant, as additional consideration for this Lease, agrees to
pay to Landlord Tenant's Percentage Share (defined in Section 3.03 hereof) of
Operating Expenses (defined in Section 3.04 hereof) annualized for each
calendar year during the Term, which exceeds $7.50 per rentable square foot per
year ("Expense Stop"). On or before the Commencement Date and thereafter on or
before the first day of each calendar year of the Term, Landlord shall provide
to Tenant the Estimated Operating Expense (defined in Section 3.03 hereof) for
the upcoming calendar year. Tenant shall pay in advance on the first day of
each calendar month during the Term, installments equal to one-twelfth (1/12)
of Tenant's Percentage Share of Estimated Operating Expenses annualized for
each calendar year which exceeds the Expense Stop. Within one hundred fifty
(150) days after the end of each calendar year during the Term, Landlord shall
furnish to Tenant a statement certified by Landlord of the Actual Operating
Expenses for the immediately preceding calendar year. If Tenant's Percentage
Share of Estimated Operating Expenses which exceeds the Expense Stop paid to
Landlord during the previous calendar year exceeds Tenant's Percentage Share of
Actual Operating Expense which exceeds the Expense Stop
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for such year, then Landlord shall refund the difference to Tenant at the time
Landlord furnishes the statement of the Actual Operating Expense. Otherwise,
within fifteen (15) days after Landlord furnishes such statement to Tenant,
Tenant shall make a lump sum payment to Landlord equal to the positive
difference between Tenant's Percentage Share of the Actual Operating Expense
which exceeds the Expense Stop for the preceding calendar year over Tenant's
Percentage Share of the Estimated Operating Expense which exceeds the Expense
Stop paid by Tenant for the preceding calendar year. As used in this Lease the
term "Rent" shall refer collectively to the Base Rent and Tenant's Percentage
Share of Operating Expenses in excess of the Expense Stop. If the Commencement
Date is on a day other than the first day of the month, then Tenant shall be
required to pay only a pro rata portion of the installment of Rent due for such
month.
Landlord will cause adequate books and records to be maintained to
permit Tenant to verify computations of Operating Expenses and other amounts
relevant to Tenants obligations under this Lease; provided, Landlord shall not
be required to maintain any books and records concerning any payment due
hereunder for more than 2 years after such payment is due. Further, Landlord
shall permit Tenant or Tenant's representative to audit such books and records
during normal business hours and shall assist in way reasonably required for
such audits. Landlord shall also furnish explanations in reasonable detail if
requested by Tenant of any computation made under this Lease. All
determinations required or permitted of Landlord concerning payments for
Operating Expenses and other charges due hereunder shall be subject to
verification by Tenant. If any such determinations are found to be incorrect,
an adjustment will be promptly made between Landlord and Tenant to correct any
underpayments or overpayments resulting from such incorrect determinations. If
an audit of Operating Expenses for any calendar year reveals that Tenant was
overcharged under this Section 3.02 by more than ten percent (10%) for that
year, Landlord will reimburse Tenant for the cost of such audit. However,
notwithstanding that a disagreement may arise between Tenant and Landlord about
any determination required or permitted of Landlord concerning rents and other
charges due hereunder, Tenant shall continue to pay all rents and other charges
as herein provided pending resolution of such determination.
3.03 TENANT'S PERCENTAGE SHARE. For purposes of this Lease, the
term "Tenant's Percentage Share" shall mean a percentage which is equal to the
number of rentable square feet contained in the Premises divided by the total
number of rentable square feet contained in the Building of the Premises are a
part.
3.04 OPERATING EXPENSES. "Operating Expenses" shall mean and
include all amounts, expenses, and costs of whatsoever nature incurred because
of or in connection with the ownership, management, operation, repair,
maintenance or security of the Building and Landlord's personal property which
may be utilized in connection therewith. Without limiting the foregoing,
Operating Expenses will include a share (equal to the rentable square footage
of the Building divided by the total rentable square footage of all buildings
in the Project from time to time) of any costs and expenses incurred by
Landlord which are for the benefit of the Project generally, rather than any
particular Building. Thus, for example, "Operating Expenses" will
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include such a share of any cost of providing health club facilities for all
occupants of the Project (in excess of any revenues generated by such
facilities) and of any cost of providing security throughout the Project, if
Landlord determines that such costs cannot be otherwise more appropriately
charged to each building. If, however, greater security is required for an
occupant of a particular building in the Project (for example, Motorola), the
cost of such greater security will not be treated as a cost for the benefit of
the Project generally under this provision.
Notwithstanding anything to the contrary herein, Operating Expenses
shall not include, and Tenant shall not be required to pay or reimburse
Landlord for any part of: property management fees in excess of (4%) of gross
rent (subject to this limitation, Tenant agrees that Operating Expenses may
include such fees to an affiliate of Landlord); the cost of capital
improvements or depreciation (except as expressly permitted by the next
sentence); interest and principal payments on mortgages, ground lease rentals
and other non-operating debts of Landlord; specific costs for special items or
services billed specific tenants (or that would be billed to another tenant if
its lease required payments in addition to base rent on substantially the same
terms and conditions as this Lease requires of Tenant); costs of correcting
construction or design defects or violations of law existing as of the
Commencement Date; legal fees or other costs incurred because of any lease
dispute between Landlord and other tenants; income, excess profits, franchise,
transfer, estate, inheritance or rent taxes; costs paid by insurance, recovery
upon construction warranties or other sources (excluding reimbursement by
tenants for Operating Expenses); leasing commissions, attorneys' fees,
advertising expenses, and other expenses incurred in connection with leasing,
selling or conveying any interest in the Project or the land associated
therewith; costs of repairs or other work occasioned by fire, wind storm or
other casualty or necessitated by condemnation. Operating Expenses shall,
however, include:
(A) The annual cost of all capital improvements made subsequent to
the final completion of the Building (including the Premises)
which, although capital in nature, can reduce the normal
operating costs of the Project, as amortized in accordance
with generally accepted accounting principles, consistently
applied; provided that such amortization shall not be more in
any calendar year than Landlord's reasonable estimate of the
resulting savings in other Operating Expenses.
(B) The annual cost of all capital improvements made in order to
comply with any statutes, rules, regulations, or directives
enacted or promulgated by any governmental authority after the
effective date of this Lease, as amortized in accordance with
generally accepted accounting principles, consistently
applied.
Although rent taxes shall not be included in Operating Expenses, if
any rent taxes become payable on the rents due to Landlord hereunder, Tenant
shall reimburse Landlord for such taxes upon request.
Operating Expenses shall be determined on an accrual basis in
accordance with generally accepted accounting principles consistently applied.
The "Estimated Operating Expense" shall
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equal the Landlord's reasonable estimate of Operating Expenses for the
applicable calendar year. Landlord's statement of the Estimated Operating
Expense shall control for the year specified in such statement and for each
succeeding year during the Term until Landlord provides a new statement of the
Estimated Operating Expense. The "Actual Operating Expense" shall equal the
operating expenses actually incurred for the applicable calendar year.
Notwithstanding any provision contained herein to the contrary, if less than
95% of the total square feet of rentable area in the Building is occupied by
tenants or Landlord is not supplying services to 95% of the total square feet
of rentable area of the Building at any time during any calendar year,
Operating Expenses for such calendar year shall be determined to be an amount
equal to the like expense which would normally be expected to be incurred had
such occupancy been 95% of the Building's total square feet of rentable area
and had Landlord been supplying services to 95% of the Building's total square
feet of rentable area throughout such calendar year.
3.05 TENANT IMPROVEMENTS. Prior to the applicable Commencement
Date, Landlord shall, on the terms and conditions set forth in Exhibit "C"
construct the improvements desired by Tenant to complete the Premises for
Tenant's occupancy (the "Tenant Improvements").
3.06 COMPLETION OF TENANT IMPROVEMENTS. Landlord agrees that the
Premises shall be substantially completed by July 1, 1997, plus any additional
time required for substantial completion because of Tenant Delays. Landlord
acknowledges that Tenant will incur certain holdover rent, penalties and costs
at its current lease space if Tenant is unable to occupy the Premises by July
15, 1997 (the "Penalty Date"). In the event the Premises are not substantially
completed by the Penalty Date, Landlord will pay Tenant's actual holdover rent,
penalties and costs incurred by Tenant, not to exceed $700.00 per day for each
day the Premises are not substantially completed after the Penalty Date.
ARTICLE 4
4.01 USE. Tenant shall use and occupy the Premises only for office
purposes and for no other purposes. Tenant shall not do or permit anything to
be done in the Premises or authorize anything to be done in other parts of the
Project, nor shall Tenant bring or keep anything in the Project, that will in
any way increase the existing rate of or affect any fire or other insurance
upon the Project or any of its contents, or cause cancellation of any insurance
policy covering the Project or any part thereof or any of its contents. Tenant
shall not do or permit anything to be done in the Premises or authorize
anything to be done in other parts of the Project that will unreasonably or
improperly obstruct or interfere with the rights of other tenants or occupants
of the Project or injure or annoy them or tend to lower the first class
character of the building or create unreasonable elevator loads or otherwise
interfere with standard Building operations. Tenant shall not do or permit
anything to be done in the Premises or authorize anything to be done in other
parts of the Project that would constitute a nuisance. Tenant shall not commit
or suffer to be committed any waste in or upon the Premises. Subject to the
rights of Tenant under other provisions of this Lease, Tenant shall not use the
Premises or authorize anything to be done in other parts of the Project that
will in any way conflict with
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any private restrictive covenant, law, statute, ordinance or any reasonable
rule or regulation of Landlord or any governmental or quasi-governmental
authority now in force or that may hereafter be enacted or promulgated.
ARTICLE 5
5.01 LANDLORD'S SERVICES. Provided Tenant is not in default
hereunder, Landlord shall, at Landlord's expense, except as provided to the
contrary in this Lease, furnish to Tenant the following services, in keeping
with the standards of a first class suburban office building in Austin, Texas:
(a) Subject to curtailment as required by governmental laws, rules
or regulations, air conditioning and central heat, in season,
at temperatures between 67 and 78 degrees F., during all
normal Building hours. (Normal Building hours will be 7:00
a.m. through 6:00 p.m. on weekdays and 8:00 a.m. through 12:00
p.m. on Saturdays, exclusive of normal business holidays.
Normal business holidays for purposes of this Lease shall be
the days reasonably designated as such by Landlord from time
to time (but not more than nine days in any calendar year),
which days may include, without limitation, New Year's Day,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Day, Good Friday, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, the Friday
following Thanksgiving Day and Christmas Day. If in the case
of any holiday described herein a different day shall be
observed than the respective day described, then the day which
constitutes the day observed by national banks in Austin,
Texas, on account of such holiday shall constitute the holiday
under this Lease.) Notwithstanding the foregoing, Landlord
acknowledges that Tenant shall have approximately 1,000 square
feet designated as "Veritas" space which shall have 24 hour a
day, seven days a week air conditioning and central heat, in
season, and such "Veritas" space shall be separately
submetered and billed separately to Tenant. To the extent
contemplated by the Drawings approved by Landlord and Tenant
as described in Exhibit "C", an emergency power backup system
may be installed for the "Veritas" space, and any such system
will be maintained at the expense of Tenant throughout the
Term.
(b) Janitorial services in the Premises and public portions of the
Building for all days except Saturdays, Sundays, and normal
business holidays.
(c) Water at those points of supply provided for drinking, toilet,
and lavatory purposes.
(d) Normal and customary routine maintenance, and any repairs
required from time to time, for all public, structural, and
exterior portions of the Project and for the HVAC and other
Building systems.
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(e) Electric lighting service for all public portions of the
Project.
(f) Reasonably adequate, non-exclusive automatic passenger
elevator service at all times for access to and egress from
the Premises. Freight elevator service, in common with other
tenants, shall be provided during reasonable business hours as
prescribed by Landlord, exclusive of Saturdays, Sundays, and
normal business holidays.
(g) Electric energy that Tenant shall require for normal office
equipment such as typewriters, dictation machines,
calculators, personal computers, copying machines and other
machines of a similar electrical consumption, and Building
Standard (defined in Exhibit "C" attached hereto) lighting in
the Premises. Without Landlord's prior written consent,
Tenant shall not be entitled to employ lighting on the
Premises that consumes electrical current in excess of
Building Standard lighting nor utilize space heaters nor
utilize any office equipment that requires a voltage of other
than 120 volts single phase or an electric capacity greater
than any limitations on capacity contemplated in the Drawings
approved by Landlord and Tenant as described in Exhibit "C".
(h) Building security to encourage compliance with the Rules and
Regulations (defined in Section 15.09 hereof) and to limit
after-hour access to the Building; provided, however, Landlord
shall have no responsibility to prevent, and shall not be
liable to Tenant for, and shall be indemnified by Tenant
against, liability or loss to Tenant, its agents, employees
and visitors arising out of losses due to theft, burglary, or
damage or injury to persons or property caused by persons
having or gaining access to the Building or the Premises,
whether or not caused by Landlord's negligence, and Tenant
hereby releases Landlord from all liability relating thereto.
Landlord agrees to work with Tenant to develop such other
mutually acceptable security programs to provide that the
Premises can be accessed solely by Tenant after Tenant's
normal business hours.
(i) Window washing services for the outside portions of the
Building at least one (1) time per calendar year.
(j) Landlord will use reasonable efforts to cause a restaurant,
deli or other retail food service provider and a health
facility to open within a reasonable time after the
Commencement Date at Bridgepoint Square and to remain open (or
to be replaced) throughout the remainder of the Term.
(k) Landlord will provide picnic tables for outdoor luncheon
purposes at Bridgepoint Square, in such locations as
determined by Landlord.
(l) For the non-exclusive use of Tenant's employees, Landlord
shall provide a basketball goal on top of the parking garage
adjacent to the Building or at another
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suitable location designated by Landlord and a men's rest room and a
women's rest room with showers in the Building. Without limiting
Landlord's right to choose a suitable location for the facilities
described in this clause, any or all such facilities may be provided
as part of a health facility described in clause (j) above.
5.02 ADDITIONAL SERVICE COST. Tenant shall pay Landlord, upon
demand, such additional amounts as are necessary to recover additional costs
incurred by Landlord in performing or providing janitorial, maintenance,
security, or other services or requirements of Tenant (and in paying additional
taxes) as to any non-Building Standard installations in the Premises; provided,
none of Tenant's Improvements will be deemed as non-Building Standard for
purposes of this Lease unless and except to the extent that Landlord so
notifies Tenant thereof when the plans for Tenant Improvements are finalized
and before construction thereof commences.
Tenant shall pay Landlord, upon demand, monthly as billed charges
(equal to Landlord's actual or reasonably estimated cost) for providing
off-hour and nonstandard air conditioning, heating and electricity, but in no
event less than $20.00 per hour per zone; provided, however, this provision
will not excuse Tenant's excessive use or consumption of heating, air
conditioning and/or electrical services in violation of Section 5.01 hereof.
5.03 SERVICE INTERRUPTION. To the extent any of the services
described above require electricity, gas, water or other services supplied by
public utilities, Landlord's covenants hereunder shall impose on Landlord only
the obligation to use its good faith efforts to cause the applicable public
utilities to furnish the same. Any failure or defect in the services described
above shall not be construed as an eviction of Tenant nor entitle Tenant to any
reduction, abatement, offset, or refund of Rent or to any damages from
Landlord. Landlord shall not be in breach or default under this Lease,
provided Landlord uses reasonable diligence during normal business hours to
restore any such failure or defect after Landlord receives written notice
thereof.
Notwithstanding the foregoing, however, and irrespective of any rights
Landlord may claim under Section 15.13, in the event of any interruption,
reduction or discontinuance of utilities or services described in this Article
5 or of parking or repairs required of Landlord by other provisions of this
Lease, which renders Tenant unable to use and enjoy any significant portion of
the Premises (the "Affected Portion") in a reasonably normal manner, Tenant
shall have the following rights:
(1) If the interruption, reduction or discontinuance occurs for
reasons within Landlord's control (a "Controllable
Interruption"), and if it continues for 30 consecutive days
after Landlord is notified thereof or for any 45 of the 90
days after Landlord is notified thereof, Tenant shall be
entitled to treat the Controllable Interruption as an eviction
from the Affected Portion.
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(2) If the interruption, reduction or discontinuance occurs
because of applicable laws or any happening beyond the control
of Landlord, other than financial inability (an
"Uncontrollable Interruption"), then Tenant shall be entitled
to an abatement of rent and other charges due hereunder with
respect to the Affected Portion beginning on the tenth (10th)
day after Landlord is notified of the Uncontrollable
Interruption, which abatement shall continue thereafter until
the Uncontrollable Interruption is cured or Landlord otherwise
renders the Affected Portion suitable for use by Tenant in a
reasonably normal manner. Further, if any such Uncontrollable
Interruption continues with the result that Tenant is not able
to use the Affected Portion in a reasonably normal manner for
more than sixty (60) days after Landlord is notified of the
Uncontrollable Interruption, Tenant may notify Landlord of
Tenant's intention to terminate this Lease. If Landlord fails
to eliminate the Uncontrollable Interruption or to otherwise
render the Affected Portion again suitable for use by Tenant
in a reasonably normal manner within an additional thirty (30)
days after receiving any such notice of Tenant's intention to
terminate, then Tenant shall be entitled to terminate this
Lease by giving Landlord a notice of termination.
ARTICLE 6
6.01 ALTERATIONS. Tenant shall not make or allow to be made any
alterations, installations, additions or improvements in or to the Premises, or
place safes, vaults or other heavy furniture or equipment within the Premises,
without Landlord's prior written consent. Such consent by Landlord will not be
unreasonably withheld for interior, nonstructural alterations to the Premises
that do not require modifications to the Building HVAC or other systems. All
alterations, installations, additions or improvements, other than movable
furniture and movable trade fixtures, made by Tenant to the Premises shall
remain upon and be surrendered with the Premises and become the property of
Landlord at the expiration or termination of this Lease or the termination of
Tenant's right to possession of the Premises; provided, however, that Landlord
may require Tenant, at Tenant's cost, to remove any or all of such items made
by Tenant that are not Building Standard upon the expiration or termination of
this Lease or the termination of Tenant's right to possession of the Premises.
Tenant, at its sole cost and prior to the expiration or termination of this
Lease, shall remove all of Tenant's property from the Premises and make, or
reimburse Landlord for the cost of, all repairs to the Premises and/or Project
for damage resulting from such removal. All work shall be completed promptly
and in a good and workmanlike manner and shall be performed in such a manner
that no mechanic's, materialman's or other similar liens shall attach to
Tenant's leasehold estate, and in no event shall Tenant permit, or be
authorized to permit, any such liens or other claims to be asserted against
Landlord or Landlord's rights, estate and interests with respect to the Project
or this Lease. Landlord may require, at Tenant's sole cost and expense, a lien
and completion bond in an amount equal to the estimated cost of any
improvements, additions or alterations Tenant proposes to make in the Premises.
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6.02 TENANT REPAIRS. By taking possession of the Premises, Tenant
shall be deemed to have accepted the Premises as being in good, sanitary order,
condition and repair, subject to punch list items and latent defects. Tenant
shall, at Tenant's sole cost and expense, keep the Premises in good condition
and repair, excepting damage thereto by fire or other casualty or resulting
from causes beyond the reasonable control of Tenant and further excepting
ordinary wear and tear. Other than as herein provided to the contrary with
respect to damages resulting from fire or other insurable casualties, any
injury or damage to the Premises or Project, or the appurtenances or fixtures
thereof, caused by or resulting from the negligent acts or omissions of or the
intentional misconduct of Tenant or Tenant's employees, servants, agents,
invitees, assignees, or subtenants shall be repaired or replaced by Tenant, or
at Landlord's option by Landlord, at the expense of Tenant. If Tenant fails to
maintain the Premises or fails to repair or replace any damage to the Premises
or Project for which it is responsible by the terms of this Lease, Landlord
may, but shall not be obligated to, cause such maintenance, repair or
replacement to be done, as Landlord deems necessary, and Tenant shall
immediately pay to Landlord all costs related thereto plus a charge for
overhead of 10% of such costs.
6.03 LANDLORD REPAIRS. Except as stipulated herein, Landlord shall
not be required to make any improvements to or repairs of any kind or character
to the Premises during the Term. However, notwithstanding any provisions of
this Lease to the contrary, all repairs, alterations or additions to the base
Building or its systems (as opposed to those involving only Tenant's leasehold
improvements), and all repairs, alterations or additions to Tenant's
non-Building Standard leasehold improvements which affect the Building's
structural components or major mechanical, electrical or plumbing systems in
the Building, shall be made by Landlord or its contractor only. Further, to
the extent that other provisions of this Lease would make any such repairs,
alterations or additions the responsibility of Tenant, Tenant shall pay the
cost thereof (including an additional charge of 10% of actual direct costs for
Landlord's overhead), except as otherwise provided in Exhibit "C" attached
hereto.
ARTICLE 7
7.01 LANDLORD INSURANCE. Landlord shall fully insure the Project
against fire and other casualty and shall maintain comprehensive general
liability and other insurance in such amounts as may be required by Landlord's
mortgagee, or in such greater amounts as Landlord, in its sole discretion, may
deem appropriate. The cost of such insurance, including any reasonable
deductible paid thereunder by Landlord, shall be an "Operating Expense" as
defined in Section 3.03 hereof. Such insurance shall be for the sole benefit
of Landlord and, if required, Landlord's mortgagee. If the annual premiums to
be paid by Landlord exceed the standard rates because of Tenant's operations
within or contents of the Premises or because improvements to the Premises are
beyond Building Standard, Tenant shall promptly pay the excess amount of the
premium upon request by Landlord (and if necessary, Landlord may allocate the
insurance costs of the Building to give effect to this sentence).
7.02 TENANT INSURANCE. Tenant shall, at Tenant's expense, fully
insure its property located in the Premises against fire and other casualty and
shall maintain comprehensive
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general liability insurance insuring Landlord and Tenant against any liability
arising out of ownership, use, occupancy or maintenance of the Premises and all
areas appurtenant thereto, including contractual liability insurance (with
respect to Section 7.04 hereof), with insurance companies approved by Landlord
and with limits of liability of at least $2,000,000 in each occurrence for
Bodily Injury and Property Damage combined and $2,000,000 general aggregate for
Bodily Injury and Property Damage combined with the endorsement of
comprehensive general liability CG-2504. Tenant shall cause Landlord to be
named as an additional insured under such general liability policies and shall,
not less than twenty (20) days prior to (a) the Commencement Date, and (b) the
expiration of old policies, furnish Landlord with certificates of insurance
reasonably satisfactory to Landlord. The limit of such insurance shall not,
however, limit the liability of Tenant hereunder. Tenant may carry such
insurance under a blanket policy, provided such insurance has a Landlord's
protective liability endorsement attached thereto. If Tenant fails to procure
and maintain said insurance, Landlord may, but shall not be required to,
procure and maintain same, but at the expense of Tenant. No policy shall be
cancelable or subject to reduction of coverage except after thirty (30) days
prior written notice to Landlord.
7.03 WAIVER OF SUBROGATION. WHENEVER (A) ANY LOSS, COST, DAMAGE OR
EXPENSE RESULTING FROM FIRE, EXPLOSION OR ANY OTHER CASUALTY OR OCCURRENCE IS
INCURRED BY EITHER OF THE PARTIES TO THIS LEASE IN CONNECTION WITH THE PREMISES
OR THE PROJECT, AND (B) SUCH PARTY IS THEN COVERED (OR IS REQUIRED UNDER THIS
LEASE TO BE COVERED) IN WHOLE OR IN PART BY INSURANCE WITH RESPECT TO SUCH
LOSS, COST, DAMAGE OR EXPENSE, THEN NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN CONTAINED, THE PARTY SO INSURED (OR REQUIRED TO BE INSURED), FOR ITSELF
AND ANY INSURER OR ANYONE ELSE THAT MIGHT OTHERWISE CLAIM THROUGH IT BY WAY OF
SUBROGATION, HEREBY RELEASES THE OTHER PARTY (EVEN IF THE OTHER PARTY IS
NEGLIGENT! FROM ANY LIABILITY THE OTHER PARTY WOULD OTHERWISE HAVE ON ACCOUNT
OF SUCH LOSS, COST, DAMAGE.
7.04 INDEMNITY. Tenant hereby indemnifies and holds Landlord
harmless from and against any and all claims arising from Tenant's use of the
Premises for the conduct of its business or from any activity, work or other
thing done by Tenant on or about the Project and shall further indemnify and
hold harmless Landlord from and against any and all claims arising from any
breach or default in the performance of any obligation on Tenant's part to be
performed under the terms of this Lease, or arising from any negligence or
intentional misconduct of Tenant, or any officer, agent, employee, guest or
invitee of Tenant, and from and against all costs, attorney's fees, expenses
and liabilities incurred in or related to any such claim or any action or
proceeding brought thereon. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property or injury to persons
including death in, upon or about the Premises, from any cause, including
without limitation, Landlord's negligence, but except for such damage or injury
caused by Landlord's gross negligence, and Tenant hereby waives all claims in
respect thereof against Landlord.
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ARTICLE 8
8.01 CASUALTY. Tenant shall promptly give Landlord written notice
of any fire or other casualty occurring within the Premises. If the Premises
or other parts of the Building or Project reasonably required for Tenant's use
and quiet enjoyment of the Premises are damaged by fire or other casualty,
then, subject to the following provisions of this Article, Landlord shall
promptly repair the damage. If, however, the damage (a) is not covered by
insurance carried by Landlord hereunder, (b) is covered by insurance carried by
Landlord hereunder, but Landlord's mortgagee requires that proceeds of such
insurance be used to retire the mortgage debt, (c) is to such an extent that
the cost of repairs will be greater than 10% of the then full replacement cost
of the Building, or (d) occurs during the last 12 months of the then effective
Term of this Lease, then Landlord shall have the option (i) to repair the
damaged Premises and any other damaged parts of the Building or Project
reasonably necessary to Tenant's use and quiet enjoyment of the Premises to
substantially the same condition as immediately prior to such fire or other
casualty, or (ii) to terminate this Lease by so notifying Tenant within sixty
(60) days after the date of such damage, such termination to be effective as of
the date of the fire or other casualty causing the damage. The Rent required
to be paid hereunder shall be abated in proportion to the portion of the
Premises, if any, which is rendered untenantable by fire or other casualty
hereunder until repairs specified in clause (i) of the preceding sentence are
completed. Other than such rental abatement, no damages, compensation or
claims shall be payable by Landlord for loss of the use of the whole or any
part of the Premises, Tenant's personal property, or any inconvenience, loss of
business, or annoyance arising from any such repair and reconstruction.
Notwithstanding the foregoing, Landlord shall not be required to repair or
replace any furniture, furnishings, or other personal property that Tenant may
be entitled to remove from the Premises or any alterations to the Premises
constructed and installed by or for Tenant pursuant to Section 6.01 hereof or
any installations in excess of Building Standard.
ARTICLE 9
9.01 CONDEMNATION. If more than a "substantial portion of the
Premises" (as hereinafter defined) should be taken for any public or
quasi-public use, by right of eminent domain or otherwise, or should be sold in
lieu of condemnation, then either party hereof shall have the right, at its
option, to terminate this Lease as of the date when physical possession of the
Premises is taken by the condemning authority. If less than a substantial
portion of the Premises is so taken or sold, the Rent payable hereunder shall
be abated in proportion to the portion of the Premises which is rendered
untenantable by such condemnation, and Landlord shall, subject to the following
provisions of this Article, promptly restore the Premises and the appurtenances
thereto to substantially its former condition. As used herein, a "substantial
portion of the Premises" will mean (1) more than 20% of the rentable are of the
Premises itself, (2) any parking areas or other appurtenances to the Premises
in the Project, without which Tenant cannot continue to operate its business in
a reasonably normal manner, (3) any part of the Project, after the taking of
which (or sale in lieu thereof), Landlord is unable to promptly restore the
remainder of the Project for any reason (including any shortage of condemnation
or sales proceeds available to Lessor or any refusal of Landlord's mortgagee,
ground lessor or
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other secured party, to give consents necessary for such restoration). If any
substantial part of the Project other than the Premises may be so taken or
sold, Landlord shall have the right at its option to terminate this Lease as of
the date when physical possession of such part of the Project is taken by the
condemning authority. All amounts awarded upon taking of any part or all of
the Project or the Premises shall belong to Landlord and Tenant shall not be
entitled to, and expressly assigns all claims, rights and interests to, any
such compensation to Landlord.
ARTICLE 10
10.01 ENTRY. Landlord, its agents, employees and representatives,
shall have the right to enter the Premises at any time after reasonable notice
to Tenant under the circumstances (which notice may be oral and not in
compliance with Section 15.08 hereof, but no notice shall be required in the
case of routine maintenance or an emergency) to show the Premises to
prospective lenders or prospective purchasers or, within the last six months of
the Term, prospective tenants or for any purpose that Landlord may reasonably
deem necessary for the operation and maintenance of the Project. Provided any
such entry is done in a manner that does not unnecessarily interfere with
Tenant's use or enjoyment of the Premises, Tenant hereby waives any claim for
damages or for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned thereby. For each of the aforesaid purposes, Landlord
shall at all times have and retain a key with which to unlock all of the doors
in, upon and about the Premises, excluding Tenant's vaults, safes and files.
Landlord shall have the right to use any and all means which Landlord may deem
proper to open the doors in, upon and about the Premises in an emergency in
order to obtain entry to the Premises without liability to Tenant, except for
any failure to exercise due care for Tenant's property.
ARTICLE 11
11.01 SUBORDINATION. Subject to the nondisturbance provisions in
the next Section, this Lease is and shall be subject and subordinate to any and
all ground or similar leases affecting the Project, and to all mortgages, deeds
of trust, and security agreements that may now or hereafter encumber or affect
the Project or any interest of Landlord therein and/or the contents of the
Building, and to any advances made on the security thereof and to any and all
increases, renewals, modifications, consolidations, replacements and extensions
of any such leases, mortgages, deeds of trust and/or security agreements. This
clause shall be self-operative and no further instrument of subordination need
be required by any owner or holder of such ground lease, mortgage, deed of
trust or security agreement. Tenant agrees to execute and return any estoppel
certificate, consent or agreement reasonably requested by any such lessor,
mortgagee, trustee or secured party in connection with this Section within ten
(10) days after receipt of same; provided the applicable certificate, consent
or agreement is not inconsistent with Tenant's rights under this Lease. Any
breach of the preceding sentence by Tenant shall constitute a "Default"
hereunder. If any mortgagee of Landlord secured by a lien on the Project, any
lessor to Landlord under a ground lease of the Project, or any secured party
under a security agreement encumbering the interest of Landlord shall request
it and provide Tenant with an
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address for notices, Tenant shall provide to such mortgagee, lessor or secured
party written notice of any default or breach by Landlord at least thirty (30)
days prior to the exercise by Tenant of any rights and/or remedies of Tenant
hereunder arising out of such default or breach.
11.02 NONDISTURBANCE AND ATTORNMENT. If any ground or similar such
lease, mortgage, deed of trust or security agreement is enforced by the ground
lessor, the mortgagee, the trustee, or the secured party, Tenant shall, upon
request, attorn to the lessor under such lease or the mortgagee or purchaser at
such foreclosure sale, or any person or party succeeding to the interest of
Landlord as a result of such enforcement, as the case may be, and execute
instrument(s) confirming such attornment; provided, however, that regardless of
whether this Lease was approved and accepted in writing by such lessor,
mortgagee, trustee or secured party, Tenant's attornment and the rights of the
lessor, mortgagee, trustee or secured party (or anyone else claiming through
them) shall be conditioned upon the agreement by such successor to Landlord's
interest not to disturb Tenant's possession or other rights hereunder during
the Term so long as Tenant performs its obligations under this Lease. In the
event of such enforcement and upon Tenant's attornment as aforesaid, Tenant
will automatically become the tenant of the successor to Landlord's interest
without change in the terms or provisions of this Lease; provided, however,
that such successor to Landlord's interest shall not be (a) bound by any
payment of Rent for more than one month in advance (except prepayments for
security deposits, if any), or (b) bound by any amendments or modifications of
this Lease made without the prior written consent of the applicable mortgagee,
ground lessor, trustee or secured party after Tenant has been notified of its
name and address, or (c) subject to liability or offset for any damages Tenant
may claim because of a default by Landlord hereunder prior to the date
Landlord's interest in the Building is conveyed to such successor of Landlord.
11.03 QUIET ENJOYMENT. Tenant, on paying the Rent and keeping and
performing the conditions and covenants herein contained, shall and may
peaceably and quietly enjoy the Premises for the Term, subject to Sections
11.01 and 11.02, all applicable laws and other governmental and legal
requirements and the provisions of this Lease. It is understood and agreed
that this covenant and any and all other covenants of Landlord contained in
this Lease shall be subject to the penultimate sentence of Section 15.07.
ARTICLE 12
12.01 ASSIGNMENT AND SUBLETTING. Tenant shall not, voluntarily, by
operation of law, or otherwise, assign, transfer, mortgage, pledge, or encumber
this Lease or sublease the Premises or any part thereof, or suffer any person
other than Tenant, its employees, agents, servants and invitees to occupy or
use the Premises or any portion thereof, without the express prior written
consent of Landlord. Any attempt to do any of the foregoing without such
written consent shall be null and void and of no effect. If Tenant so requests
Landlord's consent, said request shall be in writing specifying the identity of
the proposed transferee, the duration of said desired sublease or assignment,
the date same is to occur, the exact location of the space affected thereby and
the proposed rentals on a square foot basis chargeable thereunder, and shall be
submitted to Landlord at least fifteen (15) days in advance of the date on
which Tenant desires
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to make such assignment or sublease or allow such occupancy or use. Upon such
request Landlord may, except as otherwise provided by the following provisions
in this Article, (a) grant such consent subject to Landlord's approval of the
assignee, transferee, subtenant, or mortgagee, or (b) deny such consent. If
Landlord does not give such consent in writing within fifteen (15) days of the
date such consent is requested, then Landlord's consent shall be deemed to have
been denied. In no event may Tenant assign this Lease or sublease the Premises
or any portion thereof to any party whose operations in the Project would not
be in keeping with, or would detract from, the operations of other tenants in
the Project.
Landlord's consent shall not be unreasonably withheld to any proposed
assignment or subletting by Tenant; provided, however, Landlord shall not be
required to give its consent to a sublease or assignment that would result in a
breach by Landlord of any of its lease obligations to other tenants. No
consent of Landlord will be required because of any change in the ownership,
directly or indirectly, of Tenant itself.
In any situation in which Landlord consents to an assignment or
sublease hereunder, Tenant shall promptly deliver to Landlord a fully executed
copy of the final sublease agreement or assignment instrument and all ancillary
agreements relating thereto. No assignment shall be effective unless the
assignee has agreed within the assignment instrument to assume the obligations
of Tenant hereunder and to be personally bound by all of the covenants, terms
and conditions hereof on the part of Tenant to be performed or observed
hereunder.
12.02 CONTINUED LIABILITY. Tenant shall, despite any permitted
assignment or sublease, remain directly and primarily liable for the
performance of all of the covenants, duties, and obligations of Tenant
hereunder, and Landlord shall be permitted to enforce the provisions of this
Lease against Tenant or any assignee or sublessee without demand upon or
proceeding in any way against any other person.
12.03 CONSENT. Consent by Landlord to a particular assignment or
sublease shall not be deemed a consent to any other or subsequent transaction.
If this Lease is assigned or if the Premises are subleased without the
permission of Landlord, then Landlord may nevertheless collect Rent from the
assignee or sublessee and apply the net amount collected to the Rent payable
hereunder, but no such transaction or collection of Rent or application thereof
by Landlord shall be deemed a waiver of any provision hereof or a release of
Tenant from the performance of the obligations of the Tenant hereunder.
12.04 PROCEEDS. All cash or other proceeds of any assignment, sale
or sublease of Tenant's interest in this Lease, whether consented to by
Landlord or not, shall be paid to Landlord (net of leasing commissions, the
cost of leasehold improvements and any other costs incurred by Tenant in
connection with the assignment, sale or sublease) notwithstanding the fact that
such proceeds exceed the Rent called for hereunder, and Tenant hereby assigns
all rights it might have or ever acquire in any such (net) proceeds to
Landlord.
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ARTICLE 13
13.01 DEFAULT. Each of the following shall constitute a "Default"
by Tenant:
(a) The failure of Tenant to pay the Rent or any part thereof when
due and the continuation of such failure for five days after
Tenant is notified thereof; provided, however, that if Tenant
fails to make any payment required by this Lease when due 2 or
more times in any Lease Year, then notwithstanding that such
defaults have been cured by Tenant, any further similar
failure shall be deemed a Default without notice or
opportunity to cure;
(b) Tenant shall become insolvent or unable to pay its debts as
they become due, or Tenant notifies Landlord that it
anticipates either condition;
(c) Tenant takes any action to, or notifies Landlord that Tenant
intends to, file a petition under any section or chapter of
the United States Bankruptcy Code, as amended from time to
time, or under any similar law or statute of the United States
or any state thereof; or a petition shall be filed against
Tenant under any such statute or Tenant notifies Landlord that
it knows such a petition will be filed; or the appointment of
a receiver or trustee to take possession of substantially all
of Tenant's assets located at the Premises or of Tenant's
interest in this Lease; or the attachment, execution or other
judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease;
unless the application of this subsection 13.01(c) shall
contravene any applicable law;
(d) Tenant shall fail to fulfill or perform, in whole or in part,
any of its obligations under this Lease (other than the
payment of Rent) and such failure or nonperformance shall
continue for a period of fifteen (15) days after written
notice thereof has been given by Landlord to Tenant; but if
the failure is of a nature that it cannot be cured within such
15-day period, Tenant shall not have committed a Default if
Tenant commences the curing of the failure within such 15-day
period and thereafter diligently pursues the curing of same
and completes the cure within sixty (60) days; or
(e) Tenant shall fail to take possession of the Premises within
ninety (90) days after the Commencement Date.
(f) Any representation by Tenant in any certificate or other
document furnished by Tenant to induce Landlord to enter into
this Lease, including without limitation, financial
information, proves to be incorrect in any material respect.
13.02 RIGHTS UPON DEFAULT. If a Default by Tenant occurs, then at
any time thereafter prior to the curing thereof, with or without notice or
demand, Landlord may exercise
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any and all rights and remedies available to Landlord under this Lease, at law
or in equity, including without limitation, termination of this Lease and
termination of Tenant's right to possession without terminating the Lease. If
Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in
full within five (5) days after Landlord hand delivers to the Premises written
notice of Landlord's intent to exercise its lockout rights, then Landlord shall
be entitled to change or modify door locks on all entry doors of the Premises
and Tenant shall not be entitled to a key to re-enter the Premises until all
delinquent Rent is paid in full; provided, however, Landlord shall immediately
thereafter post a notice on an entry door to the Premises, stating that
Landlord has exercised such lockout rights. If Tenant vacates or abandons the
Premises or any significant portion thereof, Landlord may permanently change
the locks without notice to Tenant, and Tenant shall not be entitled to a key
to re-enter the Premises. The two preceding sentences shall supersede any
conflicting provisions of Section 93.002 of the Texas Property Code or any
successor statute. In the event of a Default, Landlord may, without additional
notice and without court proceedings, re-enter and repossess the Premises and
remove all persons and property therefrom, and Tenant hereby agrees to
surrender possession of the Premises, waives any claim arising by reason
thereof or by reason of issuance of any distress warrant or writ of
sequestration, and agrees to hold Landlord harmless from any such claims. If
Landlord elects to terminate this Lease, it may treat the default as an entire
breach of this Lease and Tenant shall immediately become liable to Landlord for
damages equal to the total of (a) the cost of recovering, reletting, including,
without limitation, the cost of leasing commissions attributable to the
unexpired portion of the Term of this Lease, and remodeling the Premises, (b)
all unpaid Rent and other amounts earned or due through such termination,
including interest thereon at the rate specified in Section 13.04 hereof, plus
(c) the present value (discounted at the rate of 8% per annum) of the balance
of the Rent for the remainder of the Term less the present value (discounted at
the same rate) of the fair market rental value of the Premises for said period
and (d) any other sum of money and damages owed by Tenant to Landlord. If
Landlord elects to terminate Tenant's right to possession of the Premises
without terminating this Lease, Landlord may (but shall not be obligated to)
rent the Premises or any part thereof for the account of Tenant to any person
or persons for such rent and for such terms and conditions as Landlord
reasonably deems appropriate, and Tenant shall be liable to Landlord for the
amount, if any, by which the Rent for the unexpired balance of the Term exceeds
the net amount, if any, received by Landlord from such reletting, being the
gross amount so received by Landlord less the costs of repossession, reletting,
remodeling, and other expenses incurred by Landlord. Such sum or sums shall be
paid by Tenant in monthly installments on the first day of each month of the
Term. In no case shall Landlord be liable for failure to relet the Premises or
to collect the rent due under such reletting, and in no event shall Tenant be
entitled to more than 50% of any excess rents received by Landlord. All rights
and remedies of Landlord shall be cumulative and not exclusive.
13.03 COSTS. If a Default by Tenant occurs, then Tenant shall
reimburse Landlord on demand for all costs reasonably incurred by Landlord in
connection therewith including, but not limited to, reasonable attorney's fees,
court costs, and related costs, plus interest thereon from the date such costs
are paid by Landlord until Tenant reimburses Landlord, at the rate specified in
Section 13.04 hereof.
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13.04 INTEREST. All late payments of Rent, costs or other amounts
due from Tenant under this Lease shall bear interest from the date due until
paid at the rate of 18% per annum; provided, however, in no event shall the
rate of interest hereunder exceed the maximum nonusurious rate of interest (the
"Maximum Rate") permitted by the applicable laws of the State of Texas or the
United States of America, whichever shall permit the higher non-usurious rate,
and as to which Tenant could not successfully assert a claim or defense of
usury, and to the extent that the Maximum Rate is determined by reference to
the laws of the State of Texas, the Maximum Rate shall be the indicated rate
ceiling (as defined and described in Texas Revised Civil Statutes, Article
5069-1.04, as amended) at the applicable time in effect.
13.05 LANDLORD'S LIEN. Landlord reserves (and is hereby granted) a
first and superior lien and security interest (which shall be in addition to
and not in lieu of the statutory landlord's lien) on all fixtures, equipment,
and personal property (tangible and intangible) now or hereafter placed by
Tenant in or on the Premises to secure all sums due by Tenant hereunder, which
lien and security interest may be enforced by Landlord in any manner provided
by law, including, without limitation, under and in accordance with the Texas
Uniform Commercial Code. The provisions of this Section shall constitute a
security agreement under the Texas Uniform Commercial Code and, at Landlord's
request, Tenant shall execute and file, where appropriate, all documents
required to perfect the security interest herein granted in accordance with the
Texas Uniform Commercial Code. Landlord may at its election at any time file a
copy of this Lease as a financing statement. Unless otherwise provided by law
and for the purpose of exercising any right pursuant to this Section, Landlord
and Tenant agree that reasonable notice shall be met if such notice is given by
five days' written notice, certified mail, return receipt requested, to
Landlord or Tenant at the address specified herein.
Notwithstanding anything in this Lease to the contrary, the lien
granted to Landlord herein and the statutory landlord's lien granted to
Landlord pursuant to the Texas Property Code shall be subject and subordinate
to any and all purchase money security interests in and to any furniture,
fixtures and equipment of Tenant. Further, in no event shall such liens and
security interest cover data or files (including computer data or files),
promissory notes, documents, contracts, maps, instruments or similar property,
and notwithstanding any eviction of Tenant pursuant to the terms of the Lease,
Landlord will make such excluded property available to Tenant upon request.
13.06 NON-WAIVER. The failure of Landlord or Tenant to seek redress
for violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease shall not prevent a subsequent act or omission that
would have originally constituted a violation of this Lease from having all the
force and effect of an original violation. The receipt by Landlord of Rent
with or without knowledge of the breach of any provision of this Lease shall
not be deemed a waiver of such breach, shall not reinstate this Lease or
Tenant's right of possession if either or both have been terminated, and shall
not otherwise affect any notice, election, action, or suit by Landlord. No
provision of this Lease shall be deemed to have been waived unless such waiver
is in writing signed by the waiving party. No act or thing done by Landlord
during the
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Term shall be deemed an acceptance of a surrender of the Premises and no
agreement to accept such surrender shall be valid, unless express and in
writing signed by Landlord.
ARTICLE 14
14.01 EVIDENCE OF AUTHORITY. Simultaneously with the execution and
delivery of this Lease, Tenant shall deliver a fully executed Certificate of
the Secretary of Tenant's corporate managing general partner, with attached
Resolutions of its corporate board and with attached provisions from Tenant's
partnership agreement indicating the authority of the managing general partner
to execute this Lease, substantially in the form attached hereto as Exhibit
"H".
ARTICLE 15
15.01 AMENDMENT. Any agreement hereafter made between Landlord and
Tenant shall be ineffective to modify, release, or otherwise affect this Lease,
in whole or in part, unless such agreement is in writing and signed by the
party to be bound thereby.
15.02 SEVERABILITY. If any term or provision of this Lease shall,
to any extent, be held invalid or unenforceable by a final judgment of a court
of competent jurisdiction, the remainder of this Lease shall not be affected
thereby.
15.03 ESTOPPEL LETTERS. Tenant shall promptly upon request from
Landlord execute and acknowledge a certificate containing such information as
may be reasonably requested for the benefit of Landlord, any prospective
purchaser or any current or prospective mortgagee of all or any portion of the
Project.
15.04 LANDLORD'S LIABILITY AND AUTHORITY. The liability of Landlord
to Tenant for any default by Landlord under the terms of this Lease shall be
limited to the interest of Landlord in the Project, it being intended that
Landlord, its officers, directors and employees shall not be personally liable
for any judgment or deficiency. Whenever in this Lease there is imposed upon
Landlord or Tenant the obligation to use its best efforts, reasonable efforts,
diligence or act in good faith, Landlord or Tenant, as the case may be, shall
be required to do so only to the extent the same is economically feasible and
otherwise will not impose upon Landlord extreme burdens, financial or
otherwise.
15.05 HOLDOVER. If Tenant shall remain in possession of the
Premises after the Expiration Date or earlier termination of this Lease, then
Tenant shall be deemed a tenant-at-will whose tenancy is terminable at any
time. In such event, Tenant shall pay Rent at one and one half the daily
rental rate prevailing on the date of such termination or expiration, but
otherwise shall be subject to all of the obligations of Tenant under this
Lease. Additionally, Tenant shall pay to Landlord all damages sustained by
Landlord on account of such holding over by Tenant.
15.06 SURRENDER. Upon the expiration or earlier termination of the
Term, Tenant shall peaceably quit and surrender the Premises in the condition
required by Sections 6.01 and
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6.02 hereof. All obligations of Tenant for the period of time prior to the
expiration or earlier termination of the Term shall survive such expiration or
termination.
15.07 PARTIES AND SUCCESSORS. Subject to the limitations and
conditions set forth elsewhere herein, this Lease shall bind and inure to the
benefit of the respective heirs, legal representatives, successors, and
permitted assigns and/or sublessees of the parties hereto. The term
"Landlord", as used in this Lease, so far as the performance of any covenants
or obligations on the part of Landlord under this Lease are concerned, shall
mean only the owner of the Project at the time in question, so that in the
event of any transfer of title to the Project, the party by whom any such
transfer is made shall have no liability for a breach of any obligations of the
Landlord under this Lease after the date of such transfer, and the party to
whom any such transfer is made shall have no liability for any breach of the
obligations of the Landlord under this Lease before the date of the transfer.
Landlord shall have the right to transfer, sell, assign, mortgage or encumber,
in whole or in part, all of its rights and obligations hereunder and in the
Building, the Land, the Project and other property of Landlord referred to
herein.
15.08 NOTICE. Except as otherwise provided herein, any statement,
notice, or other communication that Landlord or Tenant may desire or be
required to give to the other shall be deemed sufficiently given or rendered if
hand delivered, or if sent by registered or certified mail, return receipt
requested, addressed at the address(es) first hereinabove given or at such
other addresses(es) as the other party shall designate from time to time by
prior written notice, and such notice shall be effective when the same is
received or mailed as herein provided.
15.09 RULES AND REGULATIONS. Tenant, its servants, employees,
agents, visitors, invitees, and licensees, shall observe faithfully and comply
strictly with the Rules and Regulations set forth in Exhibit "I" hereto, and
shall abide by and conform to such further reasonable nondiscriminatory Rules
and Regulations as Landlord may from time to time make, amend or adopt, after
Tenant receives a copy thereof.
15.10 CAPTIONS. The captions in this Lease are inserted only as a
matter of convenience and for reference and they in no way define, limit, or
describe the scope of this Lease or the intent of any provision hereof.
15.11 NUMBER AND GENDER. All genders used in this Lease shall
include the other genders, the singular shall include the plural, and the
plural shall include the singular, whenever and as often as may be appropriate.
15.12 GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the State of Texas.
15.13 INABILITY TO PERFORM. Notwithstanding Section 15.18 hereof,
whenever a period of time is herein prescribed for the taking of any action by
Landlord or Tenant, such party shall not be liable or responsible for, and
there shall be excluded from the computation of
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such period of time, any delays due to strikes, riots, acts of God, shortages
of labor or materials, war, governmental laws, regulations or restrictions, or
any other cause whatsoever beyond the control of such party (financial
inability or hardship excepted), and such nonperformance or delay in
performance shall not constitute a breach or default by such party under this
Lease nor give rise to any claim against such party for damages or constitute a
total or partial eviction, constructive or otherwise: provided, however, this
provision shall not: (1) excuse any delay in, or extend the time periods set
forth herein for Landlord's or Tenant's making of payments required by this
Lease; or (2) extend the dates and time periods specified in Sections 3.06 and
5.03 for purposes of determining Tenant's right to exercise the remedies
expressly provided in those Sections. Although Tenant's right to exercise
remedies expressly provided in Sections 3.06 and 5.03 will not be affected by
this provision, any other remedies of Tenant will be subject to this provision.
15.14 USE OF NAME. Tenant shall not, except to designate Tenant's
business address (and then only in a conventional manner and without emphasis
or display), use the name or ▇▇▇▇ "Two Bridgepoint" or "Bridgepoint Square" for
any purpose whatsoever.
15.15 BROKER. Tenant represents and warrants that the only brokers
Tenant has dealt with in connection with this Lease are: (1) Oxford
Commercial, Inc., which although representing Tenant, is expected to look to
Landlord for the payment of any commission in connection with this Lease
pursuant to a separate written agreement between it and Landlord; (2) ▇▇▇▇▇▇▇
and Wakefield of Texas, Inc., which, although representing Tenant, is expected
to look only to Oxford Commercial, Inc. for the payment of any commission in
connection with this Lease pursuant to a separate written agreement between it
and Oxford Commercial, Inc.; and (3) FIC Realty Services, Inc. which represents
Landlord and is expected to look only to Landlord for any compensation in
connection with this Lease. Tenant also represents that, insofar as Tenant
knows, no other broker(s) negotiated this Lease or are entitled to any
commission in connection herewith. Tenant shall indemnify and hold harmless
Landlord from and against all claims (and costs of defending against and
investigating such claims) of any other broker(s) or similar parties claiming
under Tenant in connection with this Lease.
15.16 ENTIRE AGREEMENT. This Lease, including all Exhibits attached
hereto (which Exhibits are hereby incorporated herein and shall constitute a
portion hereof), contains the entire agreement between Landlord and Tenant with
respect to the subject matter hereof. Tenant hereby acknowledges and agrees
that neither Landlord nor Landlord's agents or representatives have made any
representations, warranties, or promises with respect to the Project, the
Premises, Landlord's services, or any other matter or thing except as herein
expressly set forth, and no rights, easements, or licenses are acquired by
Tenant by implication or otherwise except as expressly set forth in this Lease.
The taking of possession of the Premises by Tenant shall be conclusive
evidence, as against Tenant, that Tenant accepts the Premises and the Project,
and that same were in good and satisfactory condition at the time such
possession was so taken, subject to punch list items and latent defects.
Further, the terms and provisions of this Lease shall not be construed against
or in favor of a party hereto merely
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because such party is the "Landlord" or the "Tenant" hereunder or such party or
its counsel is the craftsman of this Lease.
15.18 TIME OF ESSENCE. Time is of the essence of this Lease and
each and all of its provisions in which performance is a factor.
15.19 PARKING. Tenant shall have the right to use the parking
facilities of the Building, subject to the rules and regulations for such
parking facilities, all as set forth in Exhibit "I" hereto. Landlord will
maintain the parking areas serving the Building as necessary to provide parking
to each of the building's occupants at a ratio of no less than one parking
space per 279 rentable square feet. In addition, Tenant shall be entitled to
lease as many as four (4) executive parking spaces beneath the Building at a
cost of $120.00 per space per month in addition to the Rent. Tenant shall
comply with all traffic, security, safety and other rules and regulations
concerning parking as are reasonably promulgated from time to time by Landlord.
Tenant shall indemnify and hold harmless Landlord from and against all claims,
losses, liabilities, damages, costs and expenses (including, but not limited
to, attorneys' fees and court costs) arising out of Tenant's use of any such
parking spaces, whether or not caused or alleged to be caused by Landlord's
negligence.
15.20 TENANT TAXES. Tenant shall pay, or cause to be paid, before
delinquency, any and all taxes levied or assessed and which become payable
during the Term upon all of Tenant's non-Building Standard leasehold
improvements and all of Tenant's equipment, furniture, fixtures and personal
property located in the Premises.
15.21 ATTORNEY'S FEES. In the event either party defaults or is
alleged to have defaulted in the performance of any of the terms, agreements or
conditions contained in this Lease and the other party places the enforcement
of this Lease, or any part thereof, or the collection of any amount due or to
become due hereunder, or recovery of the possession of the Premises, in the
hands of any attorney who files suit upon the same, the prevailing party in the
suit shall be entitled to recover its reasonable attorney's fees from the other
party.
15.22 LANDLORD ALTERATIONS OR MODIFICATIONS. Subject to the other
provisions hereof, Landlord expressly reserves the right in its sole discretion
to temporarily or permanently change the location of, close, block or otherwise
alter any entrances, corridors, skywalks, tunnels, doorways, or walkways
leading to or providing access to the Building or any part thereof or otherwise
restrict the use of same, provided such acts do not materially and adversely
impair Tenant's access to or interfere with Tenant's use and enjoyment of the
Premises. Landlord shall not incur any liability whatsoever to Tenant as a
consequence of acts authorized by this provision, and such acts shall not be
deemed to be a breach of any of Landlord's obligations hereunder. Landlord
agrees to exercise good faith in notifying Tenant within a reasonable time in
advance of any alterations, modification or other acts of Landlord under this
Section.
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15.23 NAME CHANGE. Landlord and Tenant covenant and agree that
Landlord hereby reserves and shall have the right at any time and from time to
time to change the name of the Building as Landlord may deem advisable, and
Landlord shall not incur any liability whatsoever to Tenant as a consequence
thereof.
15.24 SIGNAGE. Landlord shall provide monument signage in the front
of the Building which identifies Tenant. In addition, interior signage, suite
identity and lobby directories will be provided by Landlord consistent with
those provided as of the date of this Lease in building in the Project known as
One Bridgepoint. So long as Tenant occupies more rentable square feet in the
Building than any other occupant, Landlord will consider in good faith any
request by Tenant for a sign on the exterior of the Building itself that
identifies Tenant. However, without limiting Landlord's discretion to permit
or decline to permit any such sign on the exterior of the Building, it is
understood that Landlord will not permit any exterior signs on the Building
that Landlord determines to be inconsistent with its leasing or management
policies for the Project.
EXECUTED as of the date first written above.
LANDLORD:
INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Executive Vice President
Assistant Secretary
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TENANT:
▇▇▇▇▇▇▇ OIL & GAS, L.P.
By: ▇▇▇▇▇▇▇ Exploration Company, a Texas
corporation, as managing general partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇, President and CEO